Fundamental Rights and Indeterminate Sentencing in England and Wales: The importance of the post-tariff distinction

TY - GEN

T1 - Fundamental Rights and Indeterminate Sentencing in England and Wales: The importance of the post-tariff distinction

AU - O'Loughlin, Ailbhe

AU - Annison, Harry

PY - 2019/6/27

Y1 - 2019/6/27

N2 - Judicial responses to challenges brought by prisoners serving the indeterminate sentence of imprisonment for public protection (IPP) have largely focused on the failure of the British government to provide adequate resources to the prison and parole systems. There has been some, though perhaps not enough, attention given by the courts to the harmful effects of indeterminate sentences on prisoners and the practical difficulties they face in demonstrating reduced risk. In this paper, we point to two related issues that are prompted by the IPP sentence, which have broader implications for criminal justice policy. First, the extent to which the risk logics underpinning the sentence (and particular notions of rehabilitation that comes with this) is an appropriate foundation on which to base on-going imprisonment of individuals for what they may do in the future. Second, the question of how punitive and preventive (ie pre- and post-tariff) elements of dangerousness-oriented sentences should be conceived – and the importance of their distinction.We suggest that interrogating extant risk logics, and taking seriously the punitive-preventive distinction, has significant implications for how the predicament of those subject to IPP sentences should be addressed. More broadly, it poses questions about how the perennial problem of dangerous offenders should be approached going forwards.

AB - Judicial responses to challenges brought by prisoners serving the indeterminate sentence of imprisonment for public protection (IPP) have largely focused on the failure of the British government to provide adequate resources to the prison and parole systems. There has been some, though perhaps not enough, attention given by the courts to the harmful effects of indeterminate sentences on prisoners and the practical difficulties they face in demonstrating reduced risk. In this paper, we point to two related issues that are prompted by the IPP sentence, which have broader implications for criminal justice policy. First, the extent to which the risk logics underpinning the sentence (and particular notions of rehabilitation that comes with this) is an appropriate foundation on which to base on-going imprisonment of individuals for what they may do in the future. Second, the question of how punitive and preventive (ie pre- and post-tariff) elements of dangerousness-oriented sentences should be conceived – and the importance of their distinction.We suggest that interrogating extant risk logics, and taking seriously the punitive-preventive distinction, has significant implications for how the predicament of those subject to IPP sentences should be addressed. More broadly, it poses questions about how the perennial problem of dangerous offenders should be approached going forwards.

KW - prisoners

KW - human rights

KW - sentencing

KW - punishment

UR - https://www.bloomsburyprofessional.com/uk/fundamental-rights-and-legal-consequences-of-criminal-conviction-9781509920983/

M3 - Conference contribution

T3 - Oñati International Series in Law and Society

BT - Fundamental Rights and Legal Consequences of Criminal Conviction

A2 - Meijer, Sonja

A2 - Annison, Harry

A2 - O'Loughlin, Ailbhe

PB - Hart Publishing

T2 - Comparative Perspectives on the Law and Practice of Limiting Offenders in Fundamental Rights Beyond Their Sentence

Y2 - 5 April 2017 through 7 April 2017

ER -