Lord Moylan (Con)

My Lords, I congratulate the noble Lord, Lord Woodley, on the tenacity he has shown in continuing the fight against the injustice of the IPP sentence. I hope the Minister will understand that the amendments in this group are intended to be helpful, in that they offer the Government a range of possibilities and flexibilities in the application of resentencing in the event that they cannot bring themselves—and it is clear that they cannot—to endorse the recommendation of the Select Committee in the other place in 2022 that all prisoners subject to this sentence should be resentenced and that the solution to the problem lies in that. That is certainly the character of Amendments 11 and 12 in my name. They make a point that was often made by the late Lord Brown of Eaton-under-Heywood, who was so passionate about this injustice—namely, that in July 2008 there were significant reforms, as the noble Lord, Lord Woodley, has said, to the IPP regime in England and Wales through the Criminal Justice and Immigration Act 2008, and those changes aimed to address the growing concerns about the sentence. The changes were that a seriousness threshold was introduced, and from that date an offender could receive an IPP sentence only if the offence they were being sentenced for was serious enough to justify a determinate sentence of at least four years. Before that change, there had been occasions, some referred to in Parliament—some are anecdotal because the names are not always known—of people with implied determinate sentences as low as 28 days who had been given IPP sentences. From this point on, four years was the seriousness test, and that was a major shift. The reforms also gave greater discretion to judges, allowing them to do their job properly—that is, sentencing somebody according to their individual deserts, which is the purpose of the sentencing regime. The Criminal Justice Act 2003, the original Act, had not given judges that discretion; it said that in the cases of those qualifying for IPP sentencing they must assume that there is a risk unless the court considered that it would be unreasonable to conclude that there was not a risk. Those are very strong words. “Must” and “unreasonable” set a very high bar, effectively removing judicial discretion in determining the sentence. Defendants sentenced under that provision were denied what should have been their right to an individually appropriate sentence. The key point, as the noble Lord, Lord Woodley, has said, is that the changes made in 2005 came into effect only in July 2008 and there was no attempt to make them retrospective to those who had been sentenced between 2005 and 2008. Many of those people are still subject to the sentence. Many of them are in prison and many have never been released. They are among the 1,000 or so IPP prisoners who have never been released to date. They continue to suffer from an injustice of exceptional gravity. They are serving a sentence that, as recognised in 2008, was passed pursuant to too wide a seriousness threshold by a judiciary whose discretion Parliament had so fettered as to prevent it saving defendants from unjustifiable severity. There are two amendments, Amendments 11 and 12, because one is required for IPP sentences and the other for DPP sentences—the sentences imposed on those under 18, as the noble Lord explained—because that is the way in which the legislation is drafted.