HC Deb 15 January 1997 vol 288 cc403-11
Mr. Michael

I beg to move amendment No. 5, in page 16, line 19, leave out from 'to' to the end of line 21 and insert—

  1. (a) two-thirds of any term of four years or more which, at that time, it would have held to be appropriate if the offence had been so committed;
  2. (b) 60 per cent. of any term of less than four years which, at that time, it would have held to be appropriate if the offence had been so committed.'.

Madam Deputy Speaker

With this, it will be convenient to discuss amendment No. 38, in schedule 2, page 49, line 11, at end insert— '(2A) In section 3 of the 1984 Act (transfer of prisoners into the United Kingdom), in subsection (3), after subsection (b) add— or (c) would result in a prisoner serving longer than two thirds of the term which the Secretary of State would have considered appropriate if the transfer had taken place before the commencement of Chapter 1 of Part II of the Crime (Sentences) Act 1997.".'.

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Mr. Michael

On Second Reading, the Home Secretary suggested that prisoners should, in practice, serve no more or no less after the implementation of the Bill than they would serve at present under the law as it now stands. During the Committee, it was clear that Ministers accepted our argument that, in some cases, prisoners would serve shorter sentences as a result of the Bill as drafted. They then introduced amendments that, in some cases, will lead to higher sentences being served. That not only breaches the principle that the Home Secretary established—that there should not be a practical change in terms of the length of sentences—but has implications in terms of resources.

Given the Home Secretary's question to me on Monday about resources—following which, I am afraid, I had to correct his assumptions—we must ask whether he has the authority of the current Chancellor of the Exchequer for the amendment that he tabled in Committee which, it is calculated, would add some £40 million a year to the prisons budget and would involve the building of three additional prisons of the size of Dartmoor. As far as I am aware, there has been no amendment to the financial resolution or to the assessment of the costs of the legislation that was given on Second Reading.

The policy that the Home Secretary has called honesty in sentencing means that offenders sentenced to imprisonment will serve the full period of their sentence in prison, other than a small amount of remission—up to six days a month—that could be earned by good behaviour and positive co-operation. The Government have said that this is not intended either to increase or decrease the time that offenders spend in custody, but is simply to introduce honesty in sentencing.

Clause 22 of the Bill therefore requires courts to shorten their sentences by fixing them at two thirds of the current level. In the case of prisoners serving four years or more, it is true that, on average, this would roughly approximate to current periods in custody. Prisoners serving sentences of this length are released under supervision after two thirds of their sentence—earlier if they get parole, later if they receive additional days for disciplinary offences. Taking both the present rules and the proposals in clause 10 for earned early release days into account, the average term in custody would be similar to the present position.

That is not true of offenders serving under four years, as clause 22 would have the effect of increasing the time spent in prison compared with now. For example, a prisoner now sentenced to three years would instead be sentenced to two years. Under the new early release rules, even if he earned the maximum possible amount of remission, he would still have to serve 20 months in prison compared with 18 months now. That was acknowledged by the Minister of State in Committee on 3 December.

I will not rehearse what the Minister said at that time, but it was clear from the figures that he gave that prisoners sentenced to terms of under four years would serve 11 per cent. longer in custody than at present. That would increase the daily prison population by more than 1,800 and would cost more than £40 million a year—the estimate that I gave a few moments ago. It would also require three additional prisons the size of Dartmoor. In fact, the increase is likely to be higher than that, because those figures assume that all prisoners will earn the maximum possible remission, which is of course highly unlikely.

The increase would result not from a decision that all offenders sentenced to less than four years deserved to spend at least 11 per cent. longer in prison but from a clause that states that its aim is to ensure that an offender serves approximately the same time in prison as he would have served if the offence had been committed immediately before commencement. The Minister may profess to be relaxed about that completely unnecessary increase in the prison population, but an overstretched Prison Service, already desperately trying to cope with rising numbers, with expedients ranging from floating prisons to converted Royal Air Force camps, will be unlikely to take the same relaxed view. It would be interesting to know the views of prison governors about the increased pressure in their establishments.

The amendment, by requiring courts to fix their sentences for a particular group of offenders at 60 per cent. of the current level, would achieve the aim set out in subsection (1) of ensuring that prisoners serve approximately the same length of time in prison as at present. In the amendments that the Minister tabled in Committee, he corrected one anomaly and created a fresh one, and the amendment is designed to bring us back towards the target that the Home Secretary espoused on Second Reading.

Sir Ivan Lawrence

In Committee on 5 December 1996, at column 256, I raised my concern about the repatriation proposals in clause 35. I tabled new clause 11, which has not been selected, and amendment No. 38, to give a full airing to a problem caused by the Bill and tentatively to suggest a way of dealing with it.

The problem, I believe, will be acknowledged by the Government and by hon. Members of all parties, so the question will be how best to address it. Under existing law—I refer particularly to the Repatriation of Prisoners Act 1984—British criminals serving prison sentences abroad can be transferred back to serve their sentences in the United Kingdom, where they can more easily be visited by their families and where they may be more likely to be rehabilitated.

When that happens, the sentence imposed by a foreign court is adopted unchanged, unless it exceeds the British maximum sentence for a like offence, in which case the United Kingdom maximum is substituted. Otherwise, as in most cases, no adjustment is made to the sentence.

However—this is the rub—prisoners are subject to the systems of parole, remission and early release operating in the receiving country, so under our existing law those transferring to the United Kingdom from sentences abroad are eligible for release on parole after serving at least half their sentences in custody. Prisoners sentenced to less than 12 months in prison are automatically released altogether after serving half their sentence; prisoners serving 12 months to four years are automatically released on licence, and therefore under supervision by the probation service, until the licence period ends, which is usually three quarters of the way through the sentence; and prisoners sentenced to four years or more are eligible—it is not automatic—for release on licence after serving half their sentence and automatically released on licence after serving two thirds of their sentence.

At present, sentences imposed by foreign courts are sometimes considerably longer than sentences imposed for similar offences in the United Kingdom, and Parliament and the courts have always accepted that the Home Secretary would use his powers to grant early release on parole to remedy any injustice arising from the imposition of a disproportionately long sentence.

The problem in the Bill is that, as it substantially abolishes remission and parole, the sentence served will be the sentence passed, and that could be very much longer than a British prisoner would have to serve for the same offence in similar circumstances. The problem of unfairness would appear to be exacerbated by the provisions of the Bill, because when the sentences passed here are more closely related to the sentences served, the differences between the sentences for the same offence in similar circumstances will be even more glaring.

If British prisoners abroad are to serve far longer sentences, few will want to be transferred to this country to serve them, and the humanitarian aims of the 1984 Act will have been unintentionally negated.

The reciprocal position of a foreign national convicted in our courts who returns to his home country to serve his sentence makes the injustice yet more glaring: under the Bill he will get what is nominally a lesser sentence—one closer to the sentence that he is expected to serve—and in his country he will be subject to the local parole and remission conditions, which will of course be unaffected by our new legislation.

If it is accepted that there is not only an apparent injustice, of differences in sentences served by similar offenders in similar circumstances in different countries, but an actual injustice, involving British prisoners serving longer sentences than the court sentencing them may have intended, the only question is how to remove it.

The organisation Prisoners Abroad, which has many eminent and distinguished supporters, not all by any means on the left of the law and order spectrum, proposed two amendments to the Bill, both of which I tabled. Amendment No. 38 was the one selected.

Sections 1 and 3 of the Repatriation of Prisoners Act 1984 empower the Secretary of State to issue a warrant authorising the detention of a prisoner transferred into the United Kingdom. Section 3(1)(c) gives the Secretary of State a wide discretion to incorporate in the warrant provisions appearing to him to be appropriate for giving effect to the international arrangements in accordance with which the prisoner is transferred. In exercising that power, section 3(3) requires the Secretary of State to have regard (inter alia) to the inappropriateness of the warrant's containing provisions which— (a) are equivalent to more than the maximum penalties (if any) that may be imposed for a similar offence in the United Kingdom. When such a sentence is encountered, it is reduced to the maximum sentence under UK law for the equivalent offence.

If the Secretary of State were required to undertake the same exercise when issuing a warrant that the UK courts will undertake when sentencing, the inequities arising from the proposed changes would be remedied. Amendment No. 38 would take us some way toward the achievement of that aim.

It may be argued that the powers of the Secretary of State as expressed in the 1984 Act are already wide enough to enable him to achieve that end, but the decision of the House of Lords and the arguments of the Executive in the leading case of Reed make it clear that only a statutory change of the kind suggested could effect the remedy that is sought.

It may also be argued that clause 9 provides a remedy in that The Secretary of State may at any time release a prisoner if he is satisfied that exceptional circumstances exist which justify the prisoner's release on compassionate grounds. But such a provision is surely inappropriate for dealing with a class of offenders rather than with an individual. It would surely be wrong to seek to remedy a fundamental injustice by relying on such a limited Executive discretion. In my respectful submission, it requires a statutory change, and I ask my right hon. Friend to give that serious consideration.

May I ask my right hon. Friend about the related problem of the reciprocal arrangements for foreign prisoners sentenced in the United Kingdom who choose to serve their sentences in their home country? The British public, the police and, I think, the judiciary were last week appalled to hear that Valerio Viccei, the mastermind of the £40 million to £60 million Knightsbridge vault robbery in 1987, who received a 22-year prison sentence at the Old Bailey and who chose to serve his sentence in his home country of Italy, is now out and about after only seven years, and is enjoying his ill-gotten gains.

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To be fair, when Viccei was sentenced in 1989, British law required only a third of the sentence to be served before parole. This wise Government toughened the sentences actually served to half in the rather unfairly and oft maligned Criminal Justice Act 1991. We are now in the process of toughening even further actual sentences served by the provision of minimum sentences and more honest sentences.

Once the Bill is enacted, Viccei, with his record of armed robberies, would, in similar circumstances, be likely to receive a sentence of life imprisonment in this country. The Italian justice system is justified in applying the one-third provision in his case—that was before we toughened the minimum sentences. The position is unsatisfactory, because, under our parole rules, it is highly unlikely that Viccei would have been granted parole after a third of his sentence had been served in the United Kingdom, as he did not assist in the recovery of any of the millions of pounds—or its value—stolen during the Knightsbridge robbery. Viccei is living the life of Riley in Italy, which is not what the British Parliament, the British criminal justice system or the British people either intended or expected.

If sentences are to be served in the home country, the circumstances of serving them ought surely to be the same. If representations have not already been made to the Italians about the displeasure of our courts, our Parliament and our people, I ask my right hon. Friend that they be made, so that in future the comparative system in Italy may be improved. After all, the Italians are our colleagues in the European Union—although I hope that nothing that I say will be taken as a suggestion that home affairs and justice matters should become the competence of the European Union. I am sure that better provision for future eventualities can be arranged through nation state co-operation under the third pillar of Maastricht.

Will my right hon. Friend confirm that, when the Bill becomes law, it will be highly unlikely—unless the law is changed in Italy to permit it—that a future perpetrator of a serious violent crime, from which the offender, who has committed another serious violent offence in the past, has gained millions of pounds, could live the life of Riley on the proceeds after only seven years in prison?

Mr. Jack Straw (Blackburn)

As the hon. and learned Member for Burton (Sir I. Lawrence) said, his remarks about the Italian justice system underline the wisdom of both main parties in the House in resisting any notion that home affairs should be part of the European Union's competence, save under the third pillar. Given the story that the hon. and learned Gentleman told, and many similar ones, I shudder to think what state British justice would be in if it were to be harmonised on the basis of the standards of Italian justice.

I was not a member of the Standing Committee, but I have read the report of the debate on clause 35, to which the hon. and learned Gentleman referred. He has raised an important issue. In Committee, the Under-Secretary said that he would consider whether there is any way of improving the provision."—[Official Report, Standing Committee A, 5 December 1996; c. 288.] I hope that the Minister of State will respond to the very reasonable points made by the hon. and learned Member for Burton.

Mr. Maclean

I listened carefully to the debate and will respond to the point raised by the hon. Member for Blackburn (Mr. Straw). I must warn him that he is on dangerous ground in taking a swipe at the Italians. He may get away with that, but I advise him not to insult the Scots, who seem to be much thinner skinned.

We intend that prisoners should serve approximately the same time in prison once the Bill is in force as at present. We want the courts to take account of the changes in early release arrangements, which is the purpose of clause 22. That will mean that, when sentencing, courts will need to compare the sentence that they would have given before the changes in the Bill with the sentence that is to be imposed and adjust it accordingly to take account of the new early release arrangements. However, we want them to do that broadly, approximately and sensibly, and in a way that is easy for them to operate without reaching for laptop computers and calculators. That is what clause 22 provides.

The hon. Member for Cardiff, South and Penarth missed the fact that prison sentences imposed by the courts are typically in multiples of three months: six months, nine months, 18 months and so on. Asking judges or magistrates to impose sentences equal to two thirds of a 12-month sentence involves an easy calculation. I am not sure about the mathematical rules or whether the common integer is three or four, but the figures are all easily divisible. I shall not bore the House with a complete analysis of all the permutations up to four years.

The result of the process will be sensible sentencing. Divisions by two thirds are simple to calculate. Two thirds of 18 months is straightforward: it leads to a sentence of 12 months. Asking judges or magistrates to impose a sentence equal to 60 per cent. of a 12 or 18-month sentence is not such a simple calculation. Calculations that involve dividing by six tenths lead to incredible nonsense. They would produce sentences of seven months, six days or nine months, six days and various split months and split days. The Government's proposals involve a simple division.

I admit that prisoners serving sentences of less than four years will serve longer before they can be released: if the sentence imposed is eight months rather than seven months, six days, they will serve 18 days longer. Prisoners will generally serve a few days or months longer before they can be released under clause 22 as drafted than they would if it were to be amended as proposed by the Opposition. Prisoners will also spend longer under supervision following release. That does not unduly concern me. Offenders know that they could face prison sentences before they commit offences and that they will be subject to supervision on release. They do not have good grounds to complain that under our proposals they will serve an extra 18 days compared to what they would serve under the Opposition proposal.

Mr. Straw

I have been listening to the Minister's remarks with great care and witnessing the instructions that he has been given by hand signal by the Whip. He says that prisoners may not complain about 18 days, although I think that they probably will. However, what has the Treasury had to say about this? What does he think will be the additional cost of the Government's proposal?

Mr. Maclean

That is a key point, which I was about to address. In "Protecting the Public", we made it clear that we had made our calculations in drawing up the document. We calculated that the sentences imposed would be broadly similar. Clause 22 provides the mechanism for that. As has been said, there was some confusion. Three different Front-Bench spokesmen understood it in three different ways. However, we came to the view that it could have resulted in undershooting, in some prisoners serving less than we had intended. We therefore made this proposal, which means that some prisoners who serve less than four years will serve a bit more than we intended.

Our calculations were based on the assumption that whatever the wording of clause 22, the sentences would be broadly similar. Our calculations had parameters that ranged from £375 million to £435 million. We did not calculate an exact cost—I do not think that one could be exact—but the change in clause 22 is financed within those parameters. The old wording would have led us closer to the lower level of £375 million. With the changes that are proposed, however, the calculated costs will be closer to £435 million—in other words, to the upper band of the parameters. That being so, there is no need to ask my right hon. and learned Friend the Chancellor of the Exchequer for supplementary funding. The proposed changes mean that some prisoners who will serve longer sentences are already catered for in the financial calculations that have been made. For those reasons, amendment No. 5 is wrong and I cannot accept it.

I shall deal briefly with amendment No. 38, proposed by my hon. and learned Friend the Member for Burton.

Sir Ivan Lawrence

Before my right hon. Friend does that—I am conscious of the time—will he take on board the concerns of the criminal law sub-committee of the Council of Circuit Judges, which feels that the way in which clause 22 is worded gives a substantial increase to magistrates' sentencing powers, something which was not really considered in Committee, nor on Report? I have no doubt that the issue will be considered in another place. If we are suddenly to increase magistrates' sentencing powers, there will be an impact on the distribution of court work. I think that the judges are worried about that consequence. Will my right hon. Friend consider the matter? I will write with details as soon as my right hon. Friend resumes his place.

Mr. Maclean

I will certainly do that. One of the benefits of the Bill, however, is that effectively it gives magistrates slightly increased powers. I welcome that. At present, the maximum term of imprisonment that they can impose is six months, which is automatically cut to three months. The Bill will give them an extra month of sentencing power.

Amendment No. 38 is a thoughtful proposition. It is designed to ensure that prisoners who are repatriated to serve a prison sentence in the United Kingdom are not disadvantaged by the changes in early-release arrangements that will be introduced by means of the Bill.

I listened carefully to what my hon. and learned Friend said. I agree that we need a solution that is flexible enough to take account of the wide range of sentencing regimes in other countries. We believe that administrative measures are likely to offer the best way forward. We believe also that they would be legally permissible. We understand that such measures can be introduced within the existing legislative framework and that of the Bill. That will go a considerable way towards meeting the concerns expressed by my hon. and learned Friend. The issue is complex and we are considering the final details. We believe, however, that it will be possible to administer the sentences of those who are repatriated following the implementation of chapter I of part II in such a way that it will mitigate any potential disadvantages to prisoners returning to the United Kingdom from abroad.

We have in mind that the balance of the sentence to be served on return to this country will be calculated in taking account of the supervision period that will be required under the Bill's provisions. That means that the total time served, or deemed to be served, by the prisoner abroad, when added to the time to be served here and the required period of supervision, will not exceed the headline sentence imposed abroad. In view of these assurances—we shall explain the final details when they have been completed—I hope that my hon. and learned Friend will feel that we are dealing with these matters satisfactorily and will not wish to pursue his amendment.

As for Valerio Viccei, he was repatriated to Italy under the provisions of the Council of Europe convention on the transfer of sentenced persons on 11 November 1992. As the Italians have followed the convention, I do not think that it would be appropriate to protest to them about their following of the convention in terms of Italian law in the granting of parole. If my hon. and learned Friend does not like the behaviour of the Italians, it would be necessary to renegotiate the convention.

If Valerio Viccei had remained in custody in England and Wales, he would have been eligible for release on parole licence on 13 December 1994, once he had served one third of his sentence, not the one half quoted in the Sunday newspapers.

Following repatriation, the question of a prisoner's suitability for release from custody in a foreign jurisdiction, including any temporary release, is a matter for the authorities in that jurisdiction. My hon. and learned Friend is right, however, that in future, when the Bill is enacted, any criminals with previous convictions such as those of Valerio Viccei, committed in the United Kingdom, will come within the automatic life sentence provisions. They will be eligible for release once the Parole Board has concluded that that would be safe. In other words, there would be quite heavy sentences. In view of these assurances, I hope that my hon. and learned Friend will not wish to press amendment No. 38 to a Division. I hope also that he is satisfied on Valerio Viccei.

Mr. Michael

We have probed the issue and demonstrated that the Government went too low and that some people would have had shorter sentences. As a result of the amendments made in Committee to try to put that right, some people will now have longer sentences.

In view of the Home Secretary's intervention on Monday, I have to say that Home Office Ministers appear to be quite cavalier about their calculation of the exact impact of variations on Government finances. Nevertheless, we have succeeded in our aim, which was to highlight the problem. We recognise that it is difficult to be precise about the impact of the introduction of these measures or absolutely certain that the same sentence will be the practical outcome in the future as it was in the past—a point that we made at the beginning of the series of debates on this issue. Having achieved our aim, I do not think that we need to take up any more time, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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