Category: criminal law

The Pains of Imprisonment for Public Protection (IPP) for Family Members

This post provides a brief summary of emerging findings from the research project ‘‘Exploring the Secondary Pains of Indeterminate Imprisonment: The case of IPP families’ and is a shortened version of a piece for the August edition of Inside Time (https://www.insidetime.org/):

The indeterminate Imprisonment for Public Protection (IPP) sentence has rightly been described as one of the least carefully planned and implemented pieces of legislation in the history of British sentencing. Readers of Inside Time will know that there continues to be a large number of people imprisoned on IPP sentences despite its abolition in 2012, either still serving their original sentence or having been recalled to prison. There have been a number of important reports examining the problems caused by the sentence, but the experiences of families of IPP prisoners has so far not been explored.

Our research ‘Exploring the Secondary Pains of Indeterminate Imprisonment: The case of IPP families’ has begun to fill this gap. We wanted to understand how families were affected by the IPP sentence; the support they may have received; and involvement in campaigns relating to the IPP sentence. In order to do this, we conducted in-depth interviews with 15 family members of IPP prisoners and received 119 responses to an online survey.

Our detailed findings will be published later in the year, but we can share some of the most important themes here. Overarching themes were injustice, uncertainty and hope. With the sentence having been abolished but no legislative action taken to address the existing IPP population, families understandably felt that this was an unjust situation. One respondent told us, “I feel bitter towards the justice system knowing worse crimes are committed with much lesser sentences”. Families also emphasised the difficulties created by the uncertainty of the open-ended sentence: this raised substantial emotional challenges, with many families feeling as if they were serving the sentence with their relative. As one family member put it, ‘The not knowing is the hardest part, we have no end date, no light at the end of the tunnel’. Unfortunately, but perhaps unsurprisingly, families reported that release brought its own difficulties. Some spoke of the constant fear of recall, of ‘living on the edge’.

The influential Farmer Review has recently made clear that the positive role to be played by families should be taken much more seriously by the criminal justice system. It is certainly the case that families can often give valuable support to an IPP prisoner’s progression. Unfortunately our research highlighted numerous practical challenges faced by families of IPP prisoners. These ranged from poor communication and inconsistencies in policies between prisons to a lack of contact due to distance. For example one respondent said that ‘The whole process of dealing with the prison service has been very inefficient and frustrating.’ Many families felt that probation should be doing a lot more to ensure progression towards release. Others spoke of long delays in the parole process, deferred hearings, and this all making a ‘really, really hard emotional journey’ even more difficult.

Many families put in a great deal of work to support their relative. While many family members are pleased that they can take action to help their relative, this does present challenges and put pressures on them. Some families told us that just having some recognition by relevant organisations (for example probation and parole) of their actions and how important they are would make a big difference to them. In addition to the work required of family members, the IPP sentence also often puts strain on family relationships. Many family members also reported serious health problems relating to the stresses and strains of the situation described above.

This research will provide further evidence to support arguments for additional legislative action to be taken in relation to IPP sentences. The majority of IPP prisoners are over tariff, and many have now served 3-4 times their tariff period. Proposals such as a ‘sunset clause’, where IPP prisoners cannot be imprisoned for longer than the maximum available sentence length for the offence committed, remain attractive. There are also steps that can, and should, be taken in relation to the licence period. Most obviously shortening its default length (from life); reducing the time from which a prisoner can apply for it to be lifted (from 10 years); and changing what happens when an IPP prisoner is recalled to prison (for example not returning them onto the original IPP sentence, or changing the release test for their subsequent parole hearing). Thankfully organisations like the Parole Board and the National Probation Service are increasingly aware of the important role played by families, and their need for advice and support. We hope that our research will help to move this agenda forwards and in particular ensure that the specific issues relating to IPP prisoners are addressed.

Dr Harry Annison, Dr Rachel Condry and Anna Leathem

Exploring the internal dynamics of the Ministry of Justice

Exploring the Ministry of Justice, Explaining Penal Policy

Dr Harry Annison

Southampton Law School

Much of my research, and my teaching, explores issues of penal policy and in particular the political and policymaking processes that are involved in criminal justice policy. Issues relating to prisons, punishment, policing and so on are often highly emotive, technically complex and subject to fierce political debate.

As part of this ongoing work, in a recent paper I considered the history of the UK Ministry of Justice and what it “is”: what are the traditions (the collections of beliefs) that underpin the ongoing activities of those within the department’s concrete obelisk home? I suggest that understanding what the department “is” in this way, is an important consideration when trying to understand particular policy developments such as those highlighted above. (Note that while the Ministry of Justice is part of the UK government, responsibility for criminal justice in Scotland is a devolved matter: the MoJ is therefore responsible for policy in England and Wales).

Drawing on ‘elite’ research interviews conducted with nearly 100 policy participants (including ministers, senior civil servants, MPs, and many more), I argued that there exist four ‘Ministries’:

  • A liberal department centred upon justice and fairness;
  • One determined to achieve the rehabilitation of offenders;
  • One obsessed with public protection;
  • One steeped in new managerialism

For some the Ministry of Justice is (or was) the ‘balancing department’, ‘the ones who did the checks and balances’ (research quotes from civil servants). For others, public protection is the dominant paradigm: avoiding high profile, serious incidents in the community, and ensuring ‘security of the [prison] estate’ (research quote from special adviser) is the overriding concern.

For others still, rehabilitation was the raison d’etre of the department (those parts tasked with prisons and probation policy, in particular). While often operating more at the level of rhetoric than reality, it was a ‘noble aim’ that sustained the department (civil servant), and indeed recurs in public debate with striking frequency.

Finally, for some managerialism had come to dominate, with aspirations for ‘an end-to-end criminal justice system’ (Lord Falconer, evidence to Constitutional Affairs Committee, 2007) flowing into benchmarking of prison services against the private sector, and talk of ‘capability gaps’, ‘business critical requirements’ and ‘doing better for less’.

These traditions – ideas about what the department is, and what it is for, collide and combine; they compete. In turn the department has been buffeted by a series of dilemmas – questions that raise profound questions about its nature and role. These include:

  • Is its political head a judicial representative (in his role as Lord Chancellor) or a government minister (as Justice Secretary)? Can he or she be both?
  • Is the Ministry of Justice a centralised department, or an assortment of largely discreet parts?
  • Are the ‘policy’ and ‘operational’ aspects (of prisons, probation, legal aid, and so on) to be fused, or kept separate?
  • Is the goal of the department patient implementation of policy, or political responsiveness to immediate events?

These concerns, and developing such ‘internal’ narratives of a government department, may seem inward-looking, self-regarding, and to pale into insignificance compared to the serious concerns identified at the beginning of this blog post.But as I have argued in a recent paper for the
British Journal of Criminology, the activity in any department is characterized by a complex interplay between perceived conditions ‘out there’ (austerity, election cycles, and so on), ‘internal’ considerations (informed by the traditions and dilemmas identified above) and work on specific policy areas.

Therefore, if one seeks to understand developments in a particular policy area – and as importantly, to consider how to achieve positive change in that field – a crucial part of this enterprise requires understanding this ‘internal’ aspect of policymakers’ concerns.

The working paper ‘Decentring the UK Ministry/s of Justice’ is available here

The finalized paper is published as a chapter entitled ‘What is Penal Policy? Traditions and practices in the UK Ministry of Justice’, in Narrative Policy Analysis: Cases in decentred policy, edited by RAW Rhodes and published by Palgrave Macmillan in May 2018.

The paper ‘The Policymakers’ Dilemma: Change, continuity and enduring rationalities of penal policy’ is published in the British Journal of Criminology and available here

A longer version of this blog post is available at the BSC (British Society of Criminology) Blog site: https://thebscblog.wordpress.com/2018/06/13/exploring-the-uk-ministry-of-justice-explaining-penal-policy/

Rape Myths and Medusa’s Gaze: a story of windows and mirrors

It is a little while now since the media storm surrounding the Ched Evans rape case died down following the footballer’s acquittal at retrial. Since that time, attention has moved on to a much larger story about alleged sexual wrongdoing in Hollywood, and the prosecution of Harvey Weinstein may well also turn on the issue of consent and the relevance or otherwise of complainants’ sexual histories. Such cases force us to confront difficult and important questions about what the interests of justice require to be made visible and must be kept hidden from view. In an article published just now in the International Journal of Law and Context (‘Ched Evans, Rape Myths and Medusa’s Gaze: a story of windows and mirrors’), I discuss some ways in which the legal debate about defendants seeking to discredit a complainant using details of the latter’s sexual life is itself part of a larger voyeuristic culture. The article considers the decisive second Evans Court of Appeal judgment, and this post offers some reflections that draw on that article.

Appeal judgments often offer up narrative details that seem irrelevant to the legal point at issue, but in fact tell of a deeper significance. Hallet LJ described two men who, on the night in question, sought to watch and film the defendant, his friend, and the complainant (‘X’) through the window of the ground floor hotel room where the incident was taking place. Their efforts were thwarted at a certain point when the curtains were closed. Does this scene not perfectly capture the essence of the case as a whole: the complainant’s identity concealed on one level by curtains as if in a private theatre, and on another by her designation in the legal judgment euphemistically by the letter ‘X’ – that signifier of censored content that simultaneously veils and draws attention? If the vignette of two men peering through a window mirrors a broader cultural voyeurism that surrounded the case, then so too did the Court’s own framing of the legal issue in terms of the justifiability of ‘indulg[ing] in a forensic examination of [X’s] sexual behaviour with others’ [para 74]. As we know, the Court did indeed decide that such ‘indulgence’ was justifiable, on the basis that the testimony of X’s purported acts of consensual drunken, rough and loud sex [paras. 12, 13, 24, 33, 35, 39, 52, 56, 58, 71] – constituted relevant and admissible evidence that a jury could well regard as corroborating Evans’s own testimony that X consented.

What the Evans judgment seems to affirm is something long argued by commentators of variously feminist positions: that there is a certain relationship between the power of visual spectacle and the imperatives of justice that, placed in the context of our existing gendered norms about ‘proper’ sexual behaviour, may disadvantage women. In this case, the evidence in question indicated that X was a violator of traditional feminine norms: that far from a sexual ‘gatekeeper’ of men’s morals X was an aggressive initiator of casual sex, and thus more masculine than feminine in terms of traditional gendered sex roles. Much was written at the time of retrial on how this fact engages the myth referred to by Hallet LJ herself, that ‘unchaste women are more likely to consent to intercourse and in any case, are less worthy of belief’ [para. 44]. Indeed, beliefs of this kind – well exploited by Evans’s defence team in soliciting the fresh evidence – are reinforced by a ‘just world’ philosophy: that ‘bad girls’ like X have no cause to complain about the consequences of their own risky and disapproved-of sexual behaviours.

If it is the case that the Court’s judgment may have reinforced such myths then this is of course a serious matter. However, the judgment is instructive furthermore about what criminal justice ‘sees’ when it turns its gaze on a case like Evans’s. It is to this issue that I want to get, which takes us some way beyond the usual debates about rape culture and what a ‘not guilty’ verdict really means. In finding its way to legitimising ‘indulgence’ in the sexual details of X’s private life, the Court reminds us of that image with which we started: of those tawdry observers peering through the hotel window, hoping to catch a glimpse of X and who understand her only in terms of an object for view. The Court, like those gawping men, thus serves as a mirror of cultural prejudices rather than a means by which to dispel them. This affords an explanation for lingering dissatisfaction (at least among ‘elite opinion’) with the retrial verdict: not on account of the factual question of whether Evans really did rape X after all, but rather the confirmation that the criminal justice gaze is ally to the voyeuristic and objectifying male gaze.

If the Evans judgment represents any sort of failure on the part of the judiciary then, it is a failure of the imagination: to imagine a view from the standpoint of the supposed ‘object’. Finding ways towards accommodating alternative perspectives is one of the key contributions of ‘law and humanities’ approaches to legal studies. What we need is criminal justice that has the imaginative capacity to countenance the object of its gaze ‘looking back’ – that is cognisant of the dangers of objectification and that makes room for something of the spirit of the mythic Medusa. In that myth, the hero Perseus knew that while he looked at Medusa only in the reflection of his polished shield, he was invulnerable to her monstrous feminine gaze. If rape myths are a kind of ‘shield’ that reinforces the male gaze, then the story of how Perseus killed Medusa seems perfectly to literalise that. The aims of feminist critiques of rape myths have tended to rehearse that struggle: to, so to speak, render Perseus’ shield transparent somehow and thereby to force dominant masculinity to reckon with another perspective on the question of what it means to do justice for both defendants and complainants.

David Gurnham, Professor of Criminal Law and Interdisciplinary Legal Studies, Southampton Law School