§ 5.56 p.m.
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Earl Ferrers.)
On Question, Motion agreed to.
House in Committee accordingly.
[The DEPUTY CHAIRMAN OF COMMITTEES (Lord Skelmersdale) in the Chair.]
Clause 1 [Offence of prison mutiny]:
Baroness Ewart-Biggs moved Amendment No. 1:
Page 1, line 8, leave out ("two") and insert ("six").
§ The noble Baroness said: The purpose of the amendment is simple. Under the Bill the offence of prison mutiny can be committed by just two people. During the debate on Second Reading I argued that 801 that number was too low and I said that I would return to the matter in Committee. I now propose that six would be more appropriate.
§ The reasoning behind the amendment is twofold. First, the notion that two people can commit the kind of incident in a prison that we are all concerned to tackle seems to be far fetched. Surely, we are concerned to deal with the kind of event that we witnessed on our television screens happening at Strangeways and other prisons up and down the country; namely, violence and destruction on a large scale causing mayhem.
§ That is what the Bill was originally designed to prevent. However, it would appear that along the way the original purpose has been changed because the Bill is now about mutiny. That concept is derived from military legislation and deals with the refusal of subordinates to obey commands. On Second Reading the Minister said that two was the number required in the Army Act definition of mutiny. However, he added that no doubt it would be a rare occurrence for the conduct of two prisoners only to get out of control.
§ I believe that it would be right to say that two people may be sufficient for a mutiny situation but that it would be absurd to think of two people committing the kind of rioting that we saw at Strangeways. For example, it would be difficult to imagine only two people going on the rampage and causing the widespread damage that we watched to our dismay.
§ The second reason behind the amendment is that we believe that the number of people who can commit mutiny must be higher than the number of people who can live in one cell. It would be quite wrong for behaviour that takes place in a cell to be caught by this legislation and therefore carry a maximum sentence of 10 years. After all, in cramped conditions with three men sharing a cell, all kinds of difficulties may arise. We believe that those prisoners should not fall foul of the legislation.
§ The issue was extensively debated at both Committee and Report stages of the Bill in another place. The Minister there appeared at one point to be persuaded that a higher figure would be advisable. However, nothing was forthcoming from the Government and that is why we now put forward this amendment. We have a great deal of hope that the Government have now had time to reconsider and that they will acknowledge that the arguments that have been used both here and in another place are forceful and that they will accept the amendment. I beg to move.
§ 6 p.m.
§ Lord Donaldson of Kingsbridge
We feel that the whole idea of mutiny in prison is confusing. Mutiny, after all, is an organised revolt against authority by men or women who are recruited and paid to do a certain job under the equivalent of a contract and who owe loyalty to authority.
Prisoners, on the other hand, are forcibly deprived of liberty and one cannot expect them to feel loyalty to authority. Our view and that of the noble Baroness is that the right way to deal with general revolt is 802 under the Public Order Act 1986. But if the Government insist on this, then when two or three are gathered together, that seems to me to be as good a number as six or 12. Therefore, I do not feel passionately in support of the amendment, although if it were carried I believe it would do no harm.
I wish to show the noble Lord, Lord Donaldson of Kingsbridge, that if the amendment were passed it might do harm. I shall try to explain why. The amendment would make the offence of prison mutiny harder to prove, which is unfortunate to start with. It would therefore reduce the value of the offence of prison mutiny. An amendment with the same effect was tabled in another place and the reasons that we gave then are the same now.
Amendment No. 1 raises from two to six the minimum number of inmates who have to be involved in an incident before it may be charged as mutiny. My right honourable friend the Minister of State in another place gave thought at an earlier stage to whether this type of amendment was the best way to tackle the anxiety that had been expressed about the effect of the Bill. She concluded that it was not, and we have considered it and still feel that the view is correct.
The difficulty that many honourable Members saw with the Bill was that the range of behaviour that might constitute mutiny was too wide. It seemed to encompass everything from a passive protest about the food to the destruction we saw in our prisons in April 1990. The Government tabled an amendment at Report stage in another place to narrow the definition so that it applied only to the most serious types of incident. Honourable Members on both sides welcomed this. Raising the minimum number of inmates involved, on the other hand, would have been wide of the mark. Whether the minimum is two or six does not affect the nature of the conduct we seek to penalise.
The noble Baroness's amendment is open to serious objections. The first is that six—indeed, any number above two—is an arbitrary choice. I can see that a governor may have a greater problem containing an outburst by six inmates than one by two or three. He may need to deploy control and restraint staff from elsewhere in the prison, disrupting the regime with the risk of trouble over a wider area. But I think he would have the same problem in quelling a disturbance involving five rather than six inmates. It is a matter of degree. It would not be possible to say that six constitutes a mutiny whereas five does not.
A second and more fundamental objection is that, in a prison context, it may only take two prisoners hell-bent on overthrowing order to set off a full-scale riot involving many more prisoners. Raising the minimum to six would make it much harder to prove a common purpose of overthrowing lawful authority. It is difficult enough to prove that two people had a common purpose. I can quite easily envisage a disturbance involving 30 prisoners who run riot in a wing of a prison and cause widespread damage. The defence may argue successfully that no six prisoners shared a common purpose, but the same defence would fail if the offence required a minimum of only two.
803 I very much doubt whether an incident involving only two inmates would in itself be sufficient to be regarded as conduct intended to overthrow lawful authority. I suspect that we are more concerned with large-scale incidents involving many inmates. But the point is that two prisoners can precipitate a large-scale incident and it is right that the Bill should provide that only two need have that common purpose.
For those reasons, I hope that the noble Baroness will agree that it is best to leave the figure of two in the Bill.
§ Baroness Ewart-Biggs
I am grateful to the Minister for explaining his reasons so clearly. However, he did not touch at all on the second reason I gave for putting forward a higher number than two. It seems to us that it would be wrong for behaviour that takes place in a cell which can and often is inhabited by three prisoners to be caught by the legislation and therefore be subject to a large sentence—a maximum of 10 years. That was one of our serious anxieties which brought us to wish to increase the figure above the number who can inhabit a cell. I can imagine only too well the kind of behaviour that can erupt from cramped living quarters, in a cell inhabited by three men and which may be construed as mutiny or riot. I am disappointed that the noble Earl did not touch on that.
Perhaps I may interrupt the noble Baroness. I apologise; she is quite right, I omitted to reply to that. We believe that it is unlikely that two or three people who are involved in a cell could be construed as overthrowing authority, for the simple reason that they are in a cell. The chances are that it would require them to be outside the cell for the process of overthrowing authority to become recognised and therefore for them to participate in the act of mutiny.
§ Baroness Ewart-Biggs
I am grateful to the Minister for responding to both the points I made. They have been argued and discussed at great length. Therefore, in the light of the thought that has been given to the matter on both sides, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Ewart-Biggs moved Amendment No. 2:
Page 1, line 9, leave out from ("prison") to end of line 16 and insert ("together use or threaten violence for the common purpose of overthrowing lawful authority in that prison.").
§ The noble Baroness said: I know that Amendment No. 2 was grouped with the first amendment, but I wish to say a few words on it now. It is separate from Amendment No. 1. In it we try to ensure that the offence of prison mutiny consists of actual violence or the threat of violence to overthrow lawful authority in a prison. I believe it is important to recollect that the Bill was first conceived as a response to the appalling scenes at Strangeways and other prisons. As I have said, those scenes were characterised by violent behaviour and enormous destruction. But, as has been said before, the intention to deal with such behaviour was lost in the drafting of the Bill. In Committee in another place the Minister argued that the Bill did not 804 deal with riot, which is what we are all so concerned about. He said that it dealt with mutiny, which we are less concerned about at the present time.
As originally drafted, the Bill would have encompassed a wide range of non-violent protest. The Minister remarked on that just now. Fortunately, in another place the Government accepted an amendment to remove the most objectionable clause. That change was welcome but we feel that it did not go quite far enough. The offence of prison mutiny can still be committed where no violence or even threatened violence has taken place. The noble Lord, Lord Hesketh, gave examples of behaviour in prisons on Second Reading. He stated on 14th February:
'Taking part' in a mutiny will include both active and passive participation. Prisoners may be drawn towards the scene of a disturbance: to offer moral support, out of curiosity or simply to watch. Their presence adds to the problems of control".—[Official Report, 14/2/92; col. 966.]
§ Those are the kind of incidents that occur frequently in prisons at present. Officers are, after all, trained to handle such incidents. As the noble Lord, Lord Donaldson, said, such incidents are currently dealt with under Rule 47 (19) of the prison rules which makes it a disciplinary offence for a prisoner to disobey any lawful order. Surely that kind of behaviour does not warrant a 10-year sentence.
§ I do not believe we should allow the kind of offences that are dealt with under Rule 47(19) to be included in the Bill. We must draw a clear line between the two kinds of offences so that serious cases such as those we have witnessed in the past 12 months are dealt with under the Bill. It is our view that legislation must be precisely phrased. We believe Clause 1 is still open to abuse. After all it could be applied to behaviour which is non-violent and simply does not warrant an offence that carries such a draconian sentence. Our amendment would ensure that the new offence was focused on the kind of behaviour that we are all greatly concerned about. I beg to move.
§ Lord Donaldson of Kingsbridge
I fully support what the noble Baroness said. I have little to add to her remarks. I take the view that if we must have this concept of prison mutiny, it must at least consist of the presence of violence or the threat of violence. Anything else seems to me entirely unreasonable in the conditions of a prison. Almost any normal conversation between prisoners as often as not is one of bitter complaint. That conversation could be interpreted by a hostile companion, or anyone else, as subversive talk. It usually is subversive talk, but unless there is at least a threat of violence it is just a matter that every prison officer knows he has to put up with. No one worries about it. It is absolutely wrong to have left out that provision from a Bill of this importance. I believe the element of at least a threat of violence is a necessary component in this legislation. I hope very much the Government will think again.
Before the noble Lord sits down, I hope he can enlighten me on a matter. Let us suppose that two prisoners decide to take the whole prison out on strike. They refuse to work and refuse to leave their cells, or indeed take part in a dirty protest. Does the noble Lord not agree that that in itself could lead to 805 mutiny within the prison? In other words, violence does not necessarily have to occur to start off a situation that could lead to prison mutiny.
§ Lord Donaldson of Kingsbridge
I do not think I should answer that as I think it is a matter of common sense. A prisoner may be bitterly humiliated and furious at being imprisoned. Many prisoners feel humiliated. In my opinion some of them are in the wrong to feel that way and some of them are in the right. That is a normal attitude of prisoners. Such prisoners will make plans all day long to work out how they can do down the authorities and that kind of thing. That is absolutely normal procedure. The noble Earl, Lord Nelson, suggests that any behaviour of that kind could be regarded as the beginning of a mutiny. It is entirely unreasonable to suggest that. Clearly, any mutiny will begin with that kind of behaviour. The first step will be people talking and complaining and the final step will occur when someone says, "Can we not do something about this? Let us talk to old Joe round the corner." That is the way mutinies start. However, one cannot stop that process by saying that the conversation is mutinous.
§ 6.15 p.m.
The noble Baroness, Lady Ewart-Biggs, said that we need to make sure that the criteria for mutiny are carefully phrased. Her amendment narrows the definition of mutiny in Clause 1(2) by requiring the use or threat of violence before a charge of mutiny may be brought. The noble Lord, Lord Donaldson of Kingsbridge, said that there would always be a threat of violence before a mutiny occurs. I am sure an element of violence will be present in most of the serious disturbances at which the Bill is aimed. I do not think there is anything between us on that.
However, we need to recognise that it can be very difficult to prove particular acts of violence against particular inmates who are in a prison and behind locked doors. An incident may occur within a building and out of the sight of any onlookers, particularly where a large number of inmates have barricaded themselves in. If, despite the evidence of widespread damage, it is not possible to prove the use or threat of violence against a particular inmate, the amendment would prevent any of those involved being successfully prosecuted for mutiny. That would completely weaken the whole purpose of this part of the Bill.
Furthermore, the ringleaders in a disturbance—those who instigate or orchestrate it, often from the sidelines—may not themselves participate in acts of violence. In our view, they are as culpable as those who do. However, this amendment would let them off the hook.
§ Lord Donaldson of Kingsbridge
I should have thought that they would at least have participated in a threat of violence.
Again, one has to prove they have been part of the threat of violence. They may have orchestrated it from the sidelines, but it is difficult to prove they have created a threat.
806 Amendment No. 2 would also remove Clause 1(3) from the Bill. The first part of Clause 1(3) provides that the intentions and common purpose of prisoners may be inferred from their conduct. That is similar to a provision in the Public Order Act in relation to the offence of riot. It is not clear how prisoners' common purpose is to be proved if not by inferring it from their conduct. In the absence of an admission by the prisoners concerned, there may be no evidence of the formation of a plan to overthrow lawful authority other than the conduct of the prisoners being consistent with such a plan.
The second part of Clause 1(3) provides that the conduct of different prisoners may take a different form. Of course, if a number of prisoners act together to overpower an officer and take over and wreck part of a prison, it might be quite easy to prove that they had a common purpose. We want to cater for the situation where the same prisoners do not act in unison but do different things in different parts of a prison with the same purpose of overthrowing lawful authority. For example, one prisoner may smash the furniture; another may erect a barricade; a third may overpower an officer and take his keys; a fourth may break through to the roof and start shouting slogans. Clause 1(3) as it stands means that, provided that the prisoners share a common purpose, it does not matter that they further that purpose in different ways.
The noble Baroness, Lady Ewart-Biggs, referred to Rule 47(19). That makes it a disciplinary offence to disobey an order and carries with it a maximum penalty of 28 days loss of remission. I do not think that that is relevant to the amendment, which concerns whether or not violence needs to be proved against particular people who set out to create mutiny.
The noble Lord, Lord Donaldson of Kingsbridge, referred to conversation and complaints being subversive. It is not mutiny within the definition of the Bill to make plans and to make subversive complaints. One has to engage in conduct which is intended to overthrow lawful authority.
For those reasons I hope that the noble Baroness and the noble Lord, Lord Donaldson of Kingsbridge, will see that if the amendment were passed, it would considerably weaken the purpose of the Bill. That would be quite wrong.
§ Baroness Ewart-Biggs
The purpose of the amendment is not exactly as the noble Earl said. It is to make it quite clear that a prisoner has to act with violence in order to fall under the legislation.
Perhaps I may remind the noble Earl of the provisions of the Public Order Act 1986 under which powers exist in relation to many offences which now take place in prison. The Act provides, first, for a statutory offence of riot, defined as involving 12 people or more; secondly, for an offence of violent disorder involving three people or more; thirdly, for an offence of affray; and, fourthly, for a summary offence of threatening abuse or insulting behaviour. All of those offences can be committed in prison. Certain powers exist. In addition, there are powers under the prison rules, which I have already mentioned.
807 We are trying to confine the Bill to offences which are not covered elsewhere. That was made clear at Second Reading and was a point made by all speakers. However, I am grateful to the Minister for having explained the Government's point of view. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Ewart-Biggs moved Amendment No. 3:
Page 1, line 16, leave out subsection (4).
The noble Baroness said: The purpose of the amendment is to remove Clause 1(4) from the Bill. That subsection reads:
Where there is a prison mutiny, a prisoner who has or is given a reasonable opportunity of submitting to lawful authority and fails, without reasonable excuse, to do so shall be regarded for the purposes of this section as taking part in the mutiny".
§ We believe that that harks back to the old riot Act which rendered individuals liable to prosecution as a severe penalty simply for being present at the scene of a riot and failing to disperse when told to do so even though they took no active part in the violence or disorderly behaviour. At Second Reading the example was given of a food protest, which occurs a great deal in prisons. If people were standing by because they did not have much to do, they would be caught under that subsection although they were not actively involved in the disorderly behaviour.
§ The riot Act was abandoned as an unnecessary and unjust blunt instrument in a modern system of criminal justice, but the Bill effectively reintroduces such a provision for people in prison. We believe that the subsection is unnecessary and should therefore be dropped. I beg to move.
§ Lord Donaldson of Kingsbridge
Once again I support the noble Baroness. Such definitions are very difficult to get right, but it seems to me that any submissive type of prisoner, of which there are great numbers in prisons, is liable to be beaten up if he does not cheer anybody who is carrying out any act of violence anywhere. It is very difficult to stand by without getting into trouble oneself. The existing provision appears to suggest that people could be given a 10 year sentence if the judge thought that necessary, although I do not think that he would, for simply looking on while somebody else committed a crime. That is not the kind of legislation we ought to support.
With the greatest respect to the noble Lord, Lord Donaldson, I think that it is the kind of legislation that we ought to support and I hope to be able to persuade him to change his mind.
The noble Baroness, Lady Ewart-Biggs, referred to the riot Act, which covered a wide range of disturbances. However, mutiny in prison is a very specific offence and we have seen the effects in prisons. That is why we have introduced the Bill.
The purpose of Clause 1(4) is to deal with the real problem which arises in a serious situation when large numbers of onlookers congregate and refuse to disperse. Protests about food or other conditions would not fall within the definition of mutiny.
808 A prison disturbance becomes more dangerous as the numbers involved grow. The disruption caused is greater, and it becomes more difficult to quell the disturbance and to restore order. Clause 1(4) is designed to stop the numbers growing. It provides a clear incentive for prisoners who may not be actively involved to leave the scene and get out of the light when a mutiny begins. Their departure—whether or not it is in response to an order from the prison officers —makes it much easier to resolve an incident peacefully and to restore order. If they will not disperse and their presence adds fuel to the mutiny, then it seems to me to be only fair to regard them as taking part and to make them liable to the same penalty.
Secondly, it may not be obvious in a disturbance which takes place out of the sight of prison officers exactly who is taking an active part, who is lending encouragement and who is merely a bystander. Acts of violence and criminal damage may be committed; it may not be possible to identify the perpetrators, but those present will not be able to hide behind that. Under Clause 1(4), once it has been established that there is a mutiny and that there was a reasonable opportunity to leave the scene in safety but that some people did not do so, all prisoners who remain would be regarded as taking part in the mutiny unless they had a reasonable excuse for not leaving.
It is also not unknown for ring-leaders to try to pass themselves off as bystanders. A prisoner who does not take a reasonable opportunity to leave the scene of a mutiny and deliberately remains there without reasonable excuse cannot in any reasonable view properly be described as an innocent bystander. In my view he is a guilty bystander.
I could understand the need for the amendment if the Bill was still perceived to penalise trivial and passive protests. Clause 1(4) might have been thought to catch the innocent bystanders in a food protest. However, the Bill now clearly does not apply to such minor acts of collective disobedience.
That does not mean that all those who are present will necessarily be found guilty of mutiny. Of course, there may well be prisoners who are unwittingly caught up in a mutiny, who wish to leave the scene but who might be attacked by their fellows if they did so. Prisoners on Rule 43 may be particularly vulnerable. If they are unable to leave in safety then the offence will not apply to them. It is a necessary safeguard to protect the innocent.
Clause 1(4) does not reverse the burden of proof. The prosecution will need to prove beyond reasonable doubt that there was a prison mutiny and that the prisoner concerned remained on the scene despite having a reasonable opportunity to surrender in safety. If the accused gives evidence that he had a reasonable excuse for his behaviour, the prosecution will also need to convince the court that he did not have such an excuse. Clause 1(4) is designed to catch the culpable bystander (and I make no excuse for that) while providing adequate safeguards for the genuinely innocent bystander.
809 I hope that that explanation serves to reassure the noble Baroness that this provision meets a real need and that it will not have the unwelcome effects she ascribes to it.
§ Lord Auckland
I intervene on a point of clarification. I presume that any decision on this matter would have to be made by the prison governor personally and not by the chief prison officer following any prosecution. I believe that the Bill is basically right, but it is very widely drawn. I wonder whether my noble friend can confirm that it will be a matter for the very top authority in the prison to give a decision.
Quite clearly if there is a mutiny, that is the responsibility of the prison governor. The prison governor will accept responsibility for whoever is charged.
§ Baroness Ewart-Biggs
The noble Earl sees matters very differently from those of us on this side of the Chamber. However, I was glad to hear him say that he does not intend the Bill to catch prisoners who indulge in minor acts of civil disobedience. But I believe that there is a very fine distinction between those who do something wrong and those who stand by and watch it. There is a great fear that the draconian sentence included in the Bill may catch a completely innocent bystander who has been dragged into the central events.
At this point it is important to remind the Government that the prison governors did not want this Bill. They were asked whether they wished to have the Bill but they did not respond, or so I understand from the information we had at Second Reading. They must feel able to deal with the kind of disturbances that we are discussing now. I remind the noble Earl that neither the Prison Reform Trust nor the National Association for the Care and Resettlement of Offenders wanted the Bill. The POA seemed very doubtful about the usefulness of this Bill to them.
With that in view, I return to the remark made by my noble friend Lord Richard, which I quoted at Second Reading. He said:It is difficult to think of an example of a mutiny for which the offence is needed".—[Official Report, 14/2/92; col. 969.]That thought runs right through the amendments that we have tabled which are meant to mitigate the possible harm that the Bill could do. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ 6.30 p.m.
Baroness Ewart-Biggs moved Amendment No. 4:
Page 1, line 22, at end insert ("who shall not give his consent unless he is of the opinion that a prosecution is necessary in the public interest.").
§ The noble Baroness said: The amendment requires the Director of Public Prosecutions to withhold his consent to a prosecution or a prison mutiny unless he is of the opinion that a prosecution is necessary in the public interest. As I argued in relation to earlier amendments, the Bill would allow prisoners to be convicted of prison mutiny for involvement in non-violent protests, such as sit-down protests and protests about various prison matters.810
§ We believe that it is quite wrong to charge prisoners with a serious criminal offence for such behaviour. In deciding whether a prosecution should take place, the Director of Public Prosecutions should therefore have regard not just to the strength of the evidence and the probability of conviction but also to whether the behaviour was such that a prosecution for prison mutiny should be brought in the public interest.
§ It may be argued that the DPP would adopt such a course whether or not such a requirement is included on the face of the Bill—that is perhaps what the Minister will tell us in a moment—but we believe that an explicit statutory recognition of the need for such an approach would strengthen his hand in so doing. I beg to move.
I am bound to tell the noble Baroness that it would be unprecedented to seek to fetter the consent of the Director of Public Prosecutions in the way in which her amendment proposes. I am glad to say that I do not think it is necessary to do so. As I told my noble friend Lord Auckland, governors are responsible for their prisoners. The decision whether to charge is not made by the governor but by the Director of Public Prosecutions.
The noble Baroness may not be aware of the Code for Crown Prosecutors, issued under Section 10 of the Prosecution of Offences Act 1985. Section 10 requires the Director of Public Prosecutions to issue a code giving guidance to prosecutors on the general principles which are to be applied in determining, among other things, whether proceedings for an offence should be instituted. The code's provisions are set out in the annual report made by the Director of Public Prosecutions to the Attorney-General and published by him.
According to the code, the first question to be determined is the sufficiency of the evidence. After that, paragraph 7 of the code states:Having satisfied himself that the evidence itself can justify proceedings, the Crown Prosecutor must then consider whether the public interest requires a prosecution".The code goes on to list a number of factors that may properly lead to a decision not to prosecute. They include cases where the circumstances of an offence are not particularly serious and a court would be likely to impose a purely nominal penalty.
I hope it is clear from this that a Crown prosecutor would certainly have to consider whether the public interest required some prisoners' acts of disobedience to be prosecuted as prison mutiny. A prosecution would by no means be automatic. He could well decide that the conduct in question did not justify a prosecution and that the matter should be left to the governor to deal with under the prison disciplinary system. The penalties which are available to the governor range from the mild to the quite severe. They should be quite adequate for the majority of incidents in our prisons.
I am bound to tell the noble Baroness that not only would it be inappropriate for her amendment to appear on the face of the Bill and so in statute fetter the Director of Public Prosecutions, but the action which she seeks is in fact covered by the code of practice.
§ Baroness Ewart-Biggs
In the light of the Minister's explanation, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 1 agreed to.
Clause 2 [Offences relating to escape]:
Baroness Ewart-Biggs moved Amendment No. 5:
Page 2, line 10, leave out ("ten") and insert ("seven").
§ The noble Baroness said: In moving this amendment, I shall speak also to Amendment No. 6. I should say immediately that these amendments are designed to draw an explanation from the Government for their reasoning on two points. First, I ask the Minister to explain why it is thought necessary that such large increases in maximum penalties are required: from five to 10 years for assisting an escape; and, even more dramatically, from two to 10 years for harbouring or assisting an escaped prisoner. That is either twice as much or five times the original sentence.
§ Secondly, can the Minister tell the Committee why there should be no differential between the maximum penalty for assisting a prisoner to escape and that for harbouring or assisting an escaped prisoner? Currently there is a clear differential, the maximum for the former offence being five years and for the latter two years. However, the Bill provides a maximum 10-year penalty for both offences, putting them at the same level.
§ At Second Reading the Minister said that increasing to 10 years the maximum penalty for harbouring an escaped prisoner would remove an anomaly because 10 years is the maximum sentence for the offence of impeding the apprehension of a person known or believed to be guilty of an arrestable offence under the Criminal Law Act 1967. But it seems to us that in removing one anomaly the Bill has created another. The usual principle when setting maximum penalties is that they should reflect the relative seriousness of different offences. While both offences are serious matters—we certainly do not disagree with that—most people nevertheless would regard helping a prisoner to escape as more serious than harbouring or assisting one who has previously escaped. I should be grateful to the Minister for comments on Clause 2 of the Bill, and for some explanation as to why those sentences have been decided upon. I beg to move.
The noble Baroness, Lady Ewart-Biggs, quite reasonably wants to know why we fixed on the penalties that we did for assisting a prisoner to escape and for harbouring an escaped prisoner or assisting him to avoid arrest. She thought that we had increased the maximum too greatly.
There are two reasons why we settled on a 10 year maximum. The first is simply that assisting an escape, and harbouring an escaped prisoner, are grave offences. The first—assisting an escape—covers a wide range of situations from smuggling a hacksaw blade into an establishment to an attempt by an organised gang to break in, possibly using explosives. The second covers the situation where someone on the outside prepares a safe house for an inmate to go to. If he is a particularly dangerous prisoner, harbouring 812 him could well lead to the death or injury of others. In our view, those are very serious offences. The noble Baroness and I agree that they are serious offences.
The second reason for settling on a 10 year maximum is to correct an anomaly in the law. The maximum penalty under Section 4 of the Criminal Law Act 1967 for assisting a person who has committed an arrestable offence to avoid arrest is in some cases 10 years' imprisonment. I do not see why there should be a different and lower penalty for the related offences under the Prison Act 1952 and the Criminal Justice Act 1961 of assisting a prisoner to escape, and assisting an escaped prisoner to avoid arrest. It is anomalous to have different penalties for those offences. We think they should be brought into line and, in view of their serious nature, that they should be brought into line at 10 years.
Perhaps I should add that 10 years is a maximum and not a mandatory penalty. The courts will be able to impose a lower penalty within the maximum for the less serious type of offence. I hope that serves to reassure the noble Baroness of the reasons why we decided on the 10 years maximum.
§ Baroness Ewart-Biggs
I am grateful to the noble Earl for the clear explanation that he gave to the probing amendments. I am not entirely convinced by his argument that he has removed one anomaly because I still believe that most people would regard helping a prisoner to escape as more serious than harbouring a prisoner. Nevertheless, he has put forward his arguments for making those penalties on the same level. I am grateful for that. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ [Amendment No. 6 not moved.]
§ Clause 2 agreed to.
§ Remaining clause agreed to.
§ House resumed: Bill reported without amendment; Report received.