hirteen cases were considered by the Court of Appeal (Criminal Division) where prisoners serving indeterminate sentences of imprisonment for public protection (“IPP” sentences) had applied for permission to appeal against the sentence. It was thought by the various representatives on behalf of those applicants that grounds of appeal properly arose against the findings made by sentencers that had led to those individuals receiving IPPs in the first place. There were a number of existing Court of Appeal authorities that established principles upon which reliance was variously placed. 

Every one of the thirteen cases has been refused the necessary extension of time and dismissed (by the judgment handed down today, Woodward, Roberts et al [2016] EWCA Crim 71). This essentially means that the Court of Appeal has turned its back on the existing IPP population, save in rare cases, and considers that it must be for the Executive to find a solution to the problem of ongoing IPP detention for those who would no longer be eligible for indefinite detention since the abolition of this troubled sentence (that did not make provision for the existing IPP population).

Points of practice notable from the Lord Chief Justice’s judgment are:

(1)    Even where there is no criticism of the previous representatives, those who did not either represent the offender as a solicitor or appear as an advocate at the sentencing hearing have a professional duty to “make inquiry of those who represented the offender at the trial so that they are apprised of all relevant information” [40]. This is not a matter of waiver of privilege, but is so that the fresh representatives are able to ensure any inaccuracy to intended grounds or factual information is able to be corrected. This seems to place a burden also on first-instance representatives to do their best to provide some form of response to the fresh representatives pro bono. This guidance is not limited to IPP appeals.

(2)    The test for time extensions in IPP cases remains the same as in other cases (the Court considers the circumstances of the application to extend time including the merits and interests of justice: [37]-[39]). However the Court’s attitude to time extensions should be noted and first-instance representatives should not allow time limits to expire.

(3)    Where an IPP sentence was within the area of judgment open to a judge to pass, i.e. – where the judge has followed the provisions of the Criminal Justice Act 2003 as interpreted by the decisions of the Court of Appeal and has passed a sentence of IPP in circumstances where it was properly open to the judge to pass such a sentence, the Court “will not now revisit sentences of IPP on the bases argued in these applications.  Unless clear new points are raised, the court will in all such cases in the future simply refuse an extension of time without more.  The remedy, if any, is one that the Executive and Parliament must address” [42].

The judgment cites several of Philip Rule’s previous cases in respect of IPP sentences and detention, including: 

R(GJD) v Governor of Her Majesty’s Prison Grendon [2015] EWHC 3501 (Admin), R v GJD [2015] EWCA Crim 599 (an example of a successful appeal against an IPP that remains recognised by the new judgment) 

R (Kaiyam) and R (Haney) v Secretary of State for Justice [2015] AC 1344

R (Sturnham) v Secretary of State for Justice and the Parole Board [2013] 2 AC 254

R v Docherty [2014] 2 Cr. App. R. (S.) 76

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