§ 3.7 p.m.
§ The Minister of State, Home Office (Baroness Blatch)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Baroness Blatch.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 7 [Time to be served]:
On Question, Whether Clause 7 shall stand part of the Bill?
§ Lord Carlisle of Bucklow
I rise to oppose the Question that Clause 7 shall stand part of the Bill. We now move away from the emotive issues relating to mandatory sentences which we debated under Part I of the Bill and turn to Part II dealing with the effectiveness and effect of sentences passed by the courts. It raises a question as to what proportion of the length of any sentence should be spent in prison, how much on supervision in the community, and how best to achieve the twin aims of punishment for the individual and the protection of the public. I oppose Clause 7 in order to raise the issue of whether we are wise to move in the way that the Bill proposes.
Our present sentencing system has been in existence only since October 1992. I ask the Committee to consider three questions. Why are we changing the system at this stage? What are we attempting to achieve? And how will the new scheme work in practice?
I believe that it is a mistake to change the system at this time and that what is proposed will prove to be far more complicated. It will have a serious effect on the prison population; it will increase tensions within prisons; it will be found to be largely unworkable; and it will reduce rather than increase the safety of society.
I believe that we would all agree in principle that real-time sentencing sounds very good sense. If one were starting from scratch to devise a penal system, clearly a system under which, when a sentence of three years is passed on a prisoner, that prisoner serves three years makes sense and is simple and understandable. The fact is that we do not start from scratch but have to consider the existing system.
556 We have had a system of early release from all forms of imprisonment since the middle of the last century. As long ago as 1837 the Select Committee on Transportation referred to the fact that those who were transported to Australia were given a ticket of leave which allowed them to be released from prison on licence approximately halfway through their sentences. When transportation ended, the penal servitude system in this country again provided that those sentenced to penal servitude should be released on licence at a period during their sentences.
As long ago as 1895 the Gladstone Committee, recognising the absurdity of a system whereby those who had committed the worst crimes were released from prison early while other prisoners served their sentences in full, recommended that all prisoners should gain a period of remission provided they behaved themselves while in prison.
Since 1948 and the abolition of penal servitude we have had a system under which, whatever the length of the sentence passed by the court, a prisoner obtains one-third remission of that sentence provided he behaves while he is in prison.
In 1967, a system of parole was introduced whereby not only were prisoners released automatically after serving two-thirds of their sentences, the rest of the sentence being completely ignored, but any prisoner serving a sentence of more than 12 months was free to be released on parole after serving merely one-third of the sentence. That system was accepted and agreed to by all parties and all sections of society until 1983 when the system was changed to make parole available to any prisoner who had served six months in prison. The decision on parole was removed from the Parole Board to the local review committee, and there was a presumption that prisoners would be released on parole. The effect was that almost all prisoners serving sentences of between nine and 18 months, irrespective of the difference in sentence, were released on the same day after having served six months in prison. That brought the parole system as it then existed into disrepute.
Against that background the then Home Secretary Douglas Hurd set up a committee, which I had the honour to chair, to consider the issue of parole and early release. I do not pretend that we necessarily got it right, but would suggest that it was a wide-ranging committee including, among others, a High Court judge, a chief constable, a principal probation officer, a senior criminologist and others. We took a year to complete our report. We considered a great deal of evidence and evaluated a great deal of research carried out by the Home Office. We made unanimous recommendations which were accepted by the Government. The Government said of our proposals at paragraph 6.6 of their White Paper:
The recommendations … propose a coherent new scheme for supervised early release from prison. The Government is grateful to the Committee for its work and believes that most of its recommendations should be implemented".What were those recommendations? Their purpose was simple. For all sentences up to four years, the first half, 50 per cent., should be spent in prison, after which 557 people should be automatically released, subject to good behaviour, the next 25 per cent. of their sentences being spent under supervision in society. During the last 25 per cent., although no longer under supervision, they would be at risk of being recalled and serving the rest of their sentences should they commit any further offence. The recommendations for those serving sentences of over four years were that parole should continue but, rather than starting at a third, it should start at 50 per cent.; that it should go on until three-quarters of the sentence—a longer period—and that, again, people should stand the risk of being recalled if they reoffended during the time of the original sentence.
The objects were to ensure that prisoners served at least 50 per cent. of their sentences as against the third that most were serving at that time; to restore proportionality to all forms of sentence; to provide supervision when prisoners receiving a sentence of longer than 12 months returned to society; and to give a meaning to the sentence as a whole. That system was introduced in October 1992.
Why is it now intended to change the system fundamentally? I have seen no evidence that it has failed. Indeed, it would be difficult to obtain such evidence in a period of three to four years. No suggestion has been made. We are told that prison works, and I accept that. We are told that crime has fallen during the time that the system has been in existence. The only reason given in the White Paper for changing it is that it is said to be a complicated statutory system. Out of the blue at the 1995 Conservative Party conference the Home Secretary announced that he intended to abolish the system of early release and that prisoners should serve the whole of their sentences.
What does that mean in effect? It is not intended that the sentences should be the same and that prisoners should serve the whole of them in prison. What is proposed in the Bill is that all sentences should now be reduced by one-third and that prisoners should serve 84 per cent. of the two-thirds' length of sentence passed.
The White Paper stated that the aim of turning to what I call real-time sentences and what the Home Secretary calls honesty in sentencing was not that the length of period served by prisoners should be increased. The Bill proposes that sentences should be reduced in length by one-third to two-thirds to equate more with the sentences served. It does not put an end to early release. Although we were told that the system of early release was to end, what is proposed in its place is a system whereby every two months a prisoner will be assessed and will have the chance of receiving 12 days' reduction of his sentence every two months, six days if his behaviour meets the prescribed minimum behaviour of a prisoner, whatever that may be, and six further days if he has exceeded that standard.
What does that mean in practice? Let me take three simple examples. Today, when an offender gets a sentence of four years, he serves two years in prison, one under supervision and one at risk of recall. In future, under this Bill, for the same offence he would receive a 558 sentence of two years eight months, serve two years two months and 24 days in prison and be on supervision for eight months (rather than 12), with no period at risk of recall should he reoffend. At present, for a sentence of three years, an offender serves 18 months in prison, nine months on supervision and nine months at risk of recall. That is to be replaced by a sentence of two years, with 20 months in prison, six months on supervision and, as I said, no further period at risk. Finally, at the top end of the scale, the armed robber who receives 18 years at the moment serves between nine years and 12 years, depending on the risk assessed by the Parole Board, is on supervision until the end of 13½ years and at risk of return for the whole of the 18 years if he commits a further offence. Under the new provisions, he would get a sentence of 12 years, serve 10 years and then be released—not on risk but depending on whether he had behaved himself in prison—and be on supervision for a period of three years.
With great respect, it is said that that system is simpler, more honest and gives greater protection. I do not believe that it meets or achieves any one of those aims. Therefore, I ask what its effect will be on the prison population.
I apologise for speaking at length but I want to take up three points. The White Paper states in terms that the inventions are that sentences should in no way be increased—the length of time that people spend in prison should not be increased as a result of the changes in sentencing policy. Indeed, in the chapter summarising the resource implications of the White Paper, the key assumption is that when imposing a sentence other than a mandatory sentence, courts will take full account of the changes in early release arrangements. It is not, therefore, intended that there should be a general increase in sentences following the introduction of honesty in sentencing.
Therefore, I take it that when the White Paper says that the provisions overall will lead to an increase of over 10,000 in the prison population and the need for 12 new prisons, it is assumed that its proposals in that area will be neutral. In fact, they will not be neutral. If all sentences are reduced by 66 per cent. of the present sentence, it means that everybody, even if they receive full remission for early release, will serve 11 per cent. more time in prison than they do at the moment. What does that mean? If all those sentenced up to four years automatically serve at least 11 per cent. longer, the daily prison population goes up by 1,900. What does that involve? It means £40 million extra a year and three new prisons.
But will that figure be achieved? It is on the basis that all of them will get early release. Yet, as I understand from the White Paper and the speeches that have been made, the intention is that most prisoners should serve their sentence in full and only model prisoners would get a short period of early release. Therefore, one must assume that not every prisoner will get his 12 days every two months early release. So, to the extent that that fails, so the prison population will become greater, as people spend longer in prison. We all know of the tremendous pressures with 60,000 people in prison today.
559 Finally on that matter, will sentences in fact be reduced by one-third? I do not want to sound cynical about the judges, whose case I attempted to argue last week, but I am bound to say that when we wrote our report we wondered whether, even in the climate of nine years ago, it would be easy to have sentences passed in courts reduced by one-third. I suggest that in the climate of 1997 it may be considerably more difficult to have sentences reduced by one-third, even more difficult than it would have been in 1988. To the extent that they are not reduced, the increase in the prison population could rise by anything up to 20,000 people, which means some 30 new prisons, and could cost heaven knows how many billion pounds.
My other concern relates to how the system of early release will work. Is it practical to assess every individual prisoner on a two-month basis? Do we have the resources to do it? Is it the wisest use of those resources?
In conclusion, there is my question to the Minister about the effect on the protection of society. The vast majority of prisoners will receive a shorter period of supervision than they have at the moment. However, I agree with her entirely—I agree with the Government—that one of the faults of the present system can fairly be said to be that those who are the most serious prisoners at the moment receive the least supervision. If they are refused parole, they have supervision only from the 66 per cent. point to the 75 per cent. point, whereas the Government's proposal, which I wholly support, is that there should be a supervision period of at least a quarter of the length of the total sentence.
I ask my noble friend the Minister to consider carefully whether a system which, on the face of it, appears to remove risk as the criterion for release and replaces it by a criterion of being a model prisoner—many of the worst people in society are very well behaved in prison—would in fact improve rather than reduce the protection of society. Should we at least consider putting back the test of risk into the release of those prisoners. I ask her to look again at the effect that the proposals as a whole will have on the prison population. I ask her to say, in view of the numerous criticisms that have been made—totally well intentioned—about the effectiveness of what is proposed compared with the effectiveness of the present system, that she will examine its effect on the population, on protection and on tensions within prisons. I hope she will say that the Government will at least take time to reflect and that before moving in such a direction they have met the various concerns that I have expressed.
§ 3.30 p.m.
§ Lord McIntosh of Haringey
The noble Lord, Lord Carlisle, made a thoroughly Conservative speech. Those who think of themselves as Conservative ought to support him. I rise to try to persuade my noble friends and others in the Committee who do not think of themselves as Conservative, that he is right and ought to be supported in this matter.
560 Clause 7 of the Bill is a declaratory clause. It declares in advance of Clauses 8 to 33, which constitute Chapter I of Part II of the Bill, that the principle behind the effect of custodial sentences should be that prisoners should serve the term to which they have been sentenced and that there should only be the exceptions which are set out in subsequent clauses of that chapter.
Looking at the principles on which imprisonment is justified—not just in the public mind but in penal theory for hundreds of years—it is true that retribution and the immediate protection of society by the removal of offenders from society is reflected and only reflected in the length of their sentences. But there are other issues to be considered when deciding on the length of sentences and the length of the part of sentences to be spent in custody. The other considerations which are generally agreed by all concerned include rehabilitation and therefore the risk of re-offending.
Clause 7 is included in the Bill specifically and openly to put retribution over and above all other considerations in sentencing theory and practice. It is based on the statement in paragraph 9.3 of last year's White Paper which said that the existing system provides for prisoners to be released automatically after a certain proportion of their sentence has been served. That statement contains two major errors of fact. First, prisoners are not released automatically after they have served a certain proportion of their sentence. Provision exists in the current system for additional days to be served in custody because of misconduct in prison. That will be continued in Chapter I of the Bill.
It is also wrong to say that prisoners are released automatically. When prisoners are released from custody their sentence is suspended rather than remitted. If they are serving a sentence of more than 12 months, their supervision by the Probation Service continues to three-quarters of the original sentence and even after that they are still considered to be at risk. When they are released under those circumstances, they are released subject to specific conditions which include not just supervision by the Probation Service, but also more precise conditions as to where they should live, what their behaviour should be, reporting conditions and so forth. If they breach those conditions, they can be returned to prison on the authority of a supervising probation officer far more readily than is provided for under the Bill. Under Clause 13 of the Bill it is necessary to go to a court to secure a return to prison. I ask the Committee to think about what that means in terms of the protection of the public.
A sentence now is a determinate sentence just like a life sentence; it is a combination of custody and supervision. It is, or should be, a pragmatic question as to what the balance should be between custody and subsequent supervision. The evidence has shown, even in the short time since these arrangements were introduced by the Criminal Justice Act 1991, that the combination of custody and supervision—the Parole Board carrying out the supervision—has provided greater protection for the public than it had before or than it would have under the provisions of this Bill. 561 Parole reduces re-offending rates. Despite what was said in Committee in another place by the Minister of State, it reduces them against a profile of prediction of the rate at which re-offending would otherwise have taken place. That is the official view of the Home Office Research Department and cannot be overturned simply by saying, as Mr. Maclean unfortunately did, that that is the view of a sociologist.
I come back to the issue of recall. It is important that we concern ourselves with the protection of the public and the need for recall to be immediate if that is deemed to be necessary. This Bill does not provide for that. I come back to the question of supervision. It is true that in a small number of cases the amount of time spent under supervision will increase under the Bill; but in the vast majority of cases there will be a reduction in the amount of supervision and therefore in the protection of the public.
I emphasise the issue of the protection of the public because it is important that we understand it. It contains two elements. One is that it is, of course, dependent on good behaviour in prison. The Bill provides for a reflection of good behaviour in prison in the length of time spent in custody. But the other element which, as we have seen, actually works, is the element of supervision. As the noble Lord, Lord Carlisle, said, and as Sir Peter Lloyd said in another place, the worst villains are often those who behave best in prison. They are therefore able to get out sooner and resume offending after their release.
If we have two workable measures which determine the release date—one being behaviour in prison and the other the possibility of supervision—why is the Bill throwing one of them away? Even the measure of good behaviour in prison is proposed in the Bill in a way that is, frankly, unworkable. It is proposed that every two months there should be two sorts of assessment; that is, one as to whether the prisoner has attained a minimum standard and the second as to whether he has exceeded a minimum standard. That means that around 80,000 assessments will need to be carried out every two months by the Prison Service. In practice, unless the amendment of the noble Lord, Lord Belstead, is carried, those assessments would be carried out by prison officers; not just centrally; not by prison governors; but by prison officers from the wings. One can imagine what that will mean in terms of discipline in prisons and the possibility of aggravation between prisoners and prison staff when they learn that they are not being given the same consideration as other prisoners on the wing. It is impossible for prison staff to implement the provisions proposed in the Bill.
I said when I began that this was a declaratory clause. Opposing the clause is a declaratory position for this Chamber to take. The Committee needs to declare this afternoon—I hope we will have an opportunity to do so, if necessary in the Division Lobbies—that we put the interests of society and the interests of a system, relatively recently introduced by this Government with widespread support, above the doctrinal statements of this particular Conservative Home Secretary at a conference. By refusing to accept that Clause 7 should 562 stand part of the Bill, we would be declaring—perhaps a Conservative position—that penal reform is still a live concern of Parliament and of this country.
§ Lord Belstead
Perhaps I may intervene briefly. I shall not follow my noble friend Lord Carlisle and the noble Lord, Lord McIntosh, in their detailed comments on Part II of the Bill. My noble friend is justified in asking, as he did in his speech, the simple, single question: why this major change in the early release system in this country? It was my noble friend Lord Carlisle who chaired the committee which recommended major changes in the parole system only some five years ago, including incidentally the tightening up of the release date of a prisoner. I hope I do not misconstrue my noble friend but I think that he, arid certainly I, would very much understand if the Government wished to tighten up release dates further. However, Part II of the Bill, on which we are just embarking, does something very different. It abolishes the existing system of early release in this country and substitutes a new system of remission based on a test of good behaviour, and only good behaviour, leaving, as both noble Lords have said, a risk assessment of letting prisoners out into the community entirely aside.
So, declaring an interest as chairman of the Parole Board, I join the two noble Lords who have spoken in saying that I think this is an important clause. It makes a statement that full-time sentencing is the guiding principle of this part of the Bill, but following the line of thought of the noble Lord, Lord McIntosh, I say that it omits curiously any mention of the early release scheme to which we shall come in Clause 10. I join those noble Lords who I know believe that the way to make clear the exact meaning of what a sentence of the court is to the general public is for the judge to state in open court the time that will be spent in prison as retribution and the periods when it will be possible for a prisoner to be awarded early release into the community, making clear of course that this will be dependent upon a prisoner's positive efforts while in custody. However, instead of explaining in that way what full-time sentencing together with an early release system means in practical terms, the philosophy of honesty in sentencing seems to assume that the sentence of the court is almost entirely retributive.
In saying that, I am not forgetting that, within a full-time sentence, a prisoner should seek to tackle the causes of his or her offending behaviour. But it is clear from the Bill that the time to be served is looked on by the Government as being mainly retributive, with early release for good behaviour, and only for good behaviour, in prison, and not for the difficult test of success or failure of rehabilitative and risk reduction work. That of course is the inevitable consequence of abolishing parole.
I speak entirely as a layman so far as concerns sentencing; but my understanding is that if retribution, deterrence, prevention and rehabilitation—the well known foundations even to me—are the principles of sentencing, then prevention and rehabilitation cannot be achieved once and for all, rather like taking a snapshot, at the moment of sentencing. Decisions on the reduction
563 and management of risk and on progress towards rehabilitation can only be taken, and judged to be taken, later on in a sentence. That is the whole reason for having parole.
I am sure, if I am sure of anything, that people want clarity concerning the meaning of a sentence. People want the retributive time to be clear; people want the time which can be awarded for early release to be clear. But, if they stop to think about it, people also want prisoners to be encouraged to reform. And that makes good, sound sense in terms of public protection, borne out by Home Office research which proves a very much lower reconviction rate for parolees compared with non-parolees.
I recognise that retribution and deterrence are essential principles of sentencing. But surely variation in the time to be served, according to the progress which a prisoner makes in risk reduction and rehabilitation, are also ingredients of a sentence which we should not lightly cast aside. Rather than the exact drafting of Clause 7, I must say that I am more interested this afternoon in the Government's intentions for Part II of the Bill. I shall listen very closely to the Minister's reply in the hope that the Government recognise that the principles of sentencing, along with retribution and deterrence, include whenever possible prevention and rehabilitation. If I hear that that is part of the Government's response, then I shall be very much heartened, and I believe many other noble Lords will be as well; for at the end of the day that is the road to the protection of the public, and that, I believe, should be our major concern as we start on Part II of the Bill.
§ 3.45 p.m.
§ Lord Thomas of Gresford
The mandatory sentences which we discussed in Committee last week were justified on the basis that judges were not sentencing adequately. It is a very curious thing that the provisions of Part II are justified on the principle of honesty in sentencing when that principle is immediately qualified by a direction to judges to reduce their sentences by one-third; so that with Part I of the Bill judges are being told, "You are not being tough enough" and with Part II of the Bill they are being told to reduce their sentences. That is a paradox which perhaps the Minister can help to explain.
I direct my remarks to the provisions for early release. The framework of the present system is that prisoners should be entitled to be released at a fixed point in their sentence subject to a loss of remission due to misbehaviour. We consider that the framework now proposed by the Government for early release is not simply unworkable but, from a practical point of view, is positively dangerous. David Roddan, the general secretary of the Prison Governors Association, wrote in an article in the Guardian on 11th February this year:Any system that determines when a prisoner is released will need to be in accord with the rules of natural justice. The riots of 1990 caused Lord Woolf to remind us of the need for fairness and justice if grievances are not to fester. Under the Bill's proposals, governors will have to assess 80,000 prisoners every two months. This work will have to be pushed down the line, possibly to the level of wing staff. The dangers are obvious. Prisoners will intimidate or threaten 564 action if they are rewarded less than their fellows. Staff will inevitably be accused of bias. Millions of pounds will be ploughed into defending appeals against differential awards. Alternatively, staff will allocate maximum remission automatically for a quiet life".That is the view of the general secretary of the Prison Governors Association. One assumes that he is speaking for a general view among prison governors. The problems that he outlines cannot be over-emphasised.
Under the Government's proposals in this part of the Bill, for the first 12 months of a prisoner's imprisonment the prescribed person may award up to 12 early release days in each two-month period as he may determine. Who is this prescribed person? He is defined in the Bill simply as the person prescribed by prison rules. The noble Lord, Lord Belstead, has put down amendments which will at least ensure that the prescribed person is a person of governor grade. But even if his amendments were to succeed, upon whose recommendations or advice would this prescribed person—a governor shall we say—be acting? It is only on the advice of a prison warder on a landing, who can assess whether the prisoner's behaviour has attained the prescribed minimum standard.
According to the Bill, after 12 months of the sentence have been served, the discretion of the prescribed person is widened still further. He may award up to six days in each two-month period if the prisoner's behaviour attains the minimum standard. But he has in his discretion the power to award a further six days if he decides that it exceeds that minimum standard.
In theory, an individual assessment of each and every prisoner is admirable, but consider the requirements every two months of assessing between 60,000 and 80,000 prisoners in a shifting prison population. Records would have to be maintained of each and every one of the 60,000 decisions taken every two months. If the decision cannot be appealed, the prisoner would be at the mercy of the prison warder on the landing or, alternatively, the prison warder would be at the mercy of the prisoner whose conduct he has to assess. If there were a system of appeals introduced against individual two-monthly assessments, that would completely overwhelm the system. One can imagine an assessment every two months of 60,000 people if a substantial proportion of those prisoners decided to appeal. Inconsistencies are bound to occur between prisons depending on the inclinations and the temper of the prison staff.
The present system has been operating successfully. A prisoner is given a fixed release date, subject to supervision, but he may forfeit remission by being given additional days of imprisonment for misconduct at properly convened disciplinary hearings. The strength of the current system—I find myself, along with the noble Lord, Lord McIntosh, defending it, which is a somewhat unusual position for a Liberal to be in—is that the disciplinary proceedings follow a properly laid down procedure in which evidence of the disciplinary offence is presented. The prisoner knows the charge and he can challenge it and the governor must give his reasons. A proper record of those proceedings is made.
565 If that seems to be too formalistic, giving too many rights to prisoners, it is a system which is open and fair and avoids grievances. The decisions which are taken currently may be made subject to outside scrutiny. It is not a case of the prison warder on the landing taking a decision, but a governor considering the charge that has been brought. By way of analogy, consider the disastrous effect on Army morale if punishment of the private soldier were placed at the discretion of the corporal and not dealt with through the hearing of a formal charge before the CO. One can imagine what effect that would have in a military context.
The noble Lord, Lord Belstead, said that the public have a right to expect that retribution follows sentencing but that it is very important to encourage the prisoner to reform. That is where the greatest protection of the public lies—that a prisoner is treated humanely, does not suffer grievances through the system which he is in and is encouraged to come out and play his part in society.
Like the noble Lord, Lord Carlisle, we want to know from the Minister why the present system is deemed not to be working satisfactorily. We are entitled to know that. We want to know what merits the government proposals are supposed to have. I for one will not be satisfied with an explanation that the public—the people on top of the Minister's bus—do not understand what is going on. It is the responsibility of government to explain what sentencing means and, if necessary, judges will take their lead from government and spell out in detail what the current system entails. What we do not want is change simply as a public relations exercise. I have looked at my thesaurus, because I know the Minister objects to my using the expression "an election gimmick". We do not want a public relations exercise; what we want is a system that is working fairly and honestly to continue.
§ Lord Ackner
The principal purpose of a sentence of imprisonment is obviously to punish—that is, retribution—but that punishment provides a possibility for the protection of the public in two ways. First, it disables the prisoner for as long as he is in prison from committing further offences, that is obvious. Secondly, there could be an element of deterrence in relation to that particular prisoner. He may learn, by loss of liberty, that crime does not pay. But excepting the life sentence, with which we are not concerned, the prisoner is going to come out of prison at the end of his sentence. If the public are to be properly protected, every well run prison system will contain facilities for the education and training of the prisoner so that when he comes out at the end of his sentence he will be better equipped for leading an honest life.
But the rehabilitation prospects and possibilities in prison should not end there. There should be rehabilitation prospects out of prison under supervision, that is where the parole system comes in. The person, having left prison—one hopes better equipped—is then supervised in order that he may better settle down to the difficult situation after a period of imprisonment of earning his livelihood.
566 The present system of parole has the following obvious strengths. First, it is clear and intelligible; secondly, it ensures that every day of the sentence pronounced by the court has practical content—one half in prison, one quarter thereafter under supervision and one quarter at risk of recall if there is an offence. Thirdly, it enables offenders to be reintroduced into the community conditionally. Fourthly, it enables decisions on the release of more serious offenders to be based on the experienced judgment of an independent body of experts. Fifthly, it enables offenders whose behaviour in the community causes concern to be recalled quickly and with the minimum of legal formality and delay. Sixthly, it avoids the prolonged incarceration of those whom it is judged are safe to release. Penultimately, it is a regime which has worked well in practice. Finally, the validity of the research that has led to its adoption has not been in any way impugned.
All of the factors that I have spelt out in numbers were included in one paragraph in the speech of my noble and learned friend the Lord Chief Justice at Second Reading. He ended by asking,One asks why such a system so recently instituted is to be cast aside".—[Official Report. 27/1/97; col. 984.]We have been given no reason. I can therefore only venture to suggest that the answer is to be found in one of the soundbites in one of the Minister's speeches to the party faithful; namely,no more half time sentences for full time crimes".That sounded very much as though the four-year sentence in future would involve four years' imprisonment, but that has been totally cast to one side. The Minister, so to speak, having been hoist with his own petard—half-time sentences are to continue—had to do something to satisfy what he perceived to be public indignation. This is the way he achieves it. In my respectful submission, he achieves it at the risk of considerable prejudice to public safety.
§ 4 p.m.
§ Lord Elton
This has been called a declaratory clause and the speeches so far have all been declaratory of position. Like my noble friend Lord Belstead, I await with great interest the declaration of the Government's position by my noble friend on the Front Bench.
I rise to ask only three short questions. The first is technical. What would be the effect on the whole of Chapter I of Part II of the Bill of deleting this clause from the Bill at this stage? If it would render it inoperable or ineffective, then it is proper to ask the next question; namely, how is the recall system going to work? We are told that we are looking for greater protection of the public. At present, under licence or parole, a prisoner can be taken straight back to prison on breach of his terms. In Clause 14 I see that breach of the terms is elevated to a criminal offence which is triable. What will happen to the ex-prisoner who has demonstrated himself to be a risk to the public by breaching his terms between the breach and the trial? Either we shall have a lot of people on remand, adding to overcrowding, or we shall have a lot of people at large adding to public risk.
567 I suppose that my final question should be addressed to my noble friend Lord Carlisle. I listened carefully but I may have missed a reference in his speech to Clause 22 on continuity of sentencing. That clause begins:This section has effect for the purpose of securing that, where a person is sentenced to a term of imprisonment in respect of an offence … to which this section applies; and … which is committed after the commencement of this Chapter, he serves approximately the same time in prison as he would have served if the offence had been committed immediately before that commencement".If anything is declaratory, that is. It declares that the Government's intention is that the prison population shall not be affected and that the courts shall take care to see that it is not so affected. My noble friend is going to illuminate this matter in a moment, for which I am profoundly thankful. As I shall not rise again after he has sat down, I merely say to the Minister that the question of recall is one of many matters about which I am anxious and I very much look forward to her reply.
§ Lord Ackner
Before the noble Lord sits down, does he agree that recall is operative not only for a breach of a condition but if there is good reason to anticipate that a condition will be breached?
§ Lord Elton
I was anxious not to become involved in a debate on the merits of the Probation Service, which I should do happily if I had longer. The noble and learned Lord has added a dimension to what I asked.
§ Lord Carlisle of Bucklow
welcome the declaratory nature of Clause 22. I thought that I had made that clear. My concern is that there is reference to 66 per cent., which means a built-in 11 per cent. increase. My further concern is as to whether it can be achieved. But the declaration that sentences should not increase automatically if one moves to real-time sentencing is a view which I certainly share.
§ Baroness Blatch
have heard a series of Second Reading debates on what the noble Lord, Lord McIntosh, has described as a declaratory clause. Moreover, we have had a good deal of debate which impinges on the next group of amendments, because Clause 7 relates to the measures which follow. As has been said, it is an introductory clause. Clause 7 is straightforward and self-explanatory. It provides for the release of prisoners when they have served their sentence. However, it paves the way also for the group of proposals which go under the heading "Honesty in sentencing". It may therefore be helpful if I outline the thinking behind those provisions.
We believe that the public, victims and offenders should know that the sentence passed by the court is the term that the offender can expect to serve. That simple concept is reflected in Clause 7, but it is certainly not what happens at present. The present arrangements are complicated and difficult to understand. As the noble and learned Lord, Lord Taylor of Gosforth, said, the present arrangements have the appearance of a charade, with everyone engaged in a calculation of how much 568 less than the announced sentence will actually be served. It is common knowledge in court that that creates a sort of sport. First one hears what is the sentence and then there is almost a calculator under the Bench which works out how little of the sentence needs to be served in custody.
The present arrangements mean also that the vast majority of prisoners can walk away from prison after serving only half of the sentence. The public and in particular the victims are understandably confused and outraged when that happens.
It has been pointed out that the present arrangements for parole and automatic early release were introduced as recently as 1992. Of course, that is true. They were a substantial improvement on the previous system which in substance dated back to 1967, as my noble friend said. However, we believe now that it is time for a more radical overhaul of early release arrangements and that our proposals offer real advantages over the present system.
Perhaps I may explain why that is so. First, the new arrangements mean that the time which prisoners serve matches more closely the sentence imposed by the court. Much has been said—and I think wrongly said—about that being the be-all and end-all of the matter. As the courts sentence now, the custodial part of the sentence will be only up to half the sentence. There is then automatic release at the two-thirds point. That is reflected in the custodial sentence which would be awarded under the present arrangements. But that goes hand in hand with a much better supervision provision which follows sentence.
It will also avoid the current uncertainty which surrounds likely release dates. Prisoners will serve their full sentence, subject to a small discount. The remand time to be credited against sentence will be decided at the point of sentence in open court.
I was interested in the notion that simply spelling out the sentence in court would allay all people's fears and remove confusion. I have taken a simple four-year sentence under the present system and, if I may be so bold, I shall be the judge on this occasion talking to the offender who has been given four years.
I as the judge would say, "I sentence you to four years' imprisonment. You are eligible to be released on parole at the half-way point of the sentence, which is two years, and entitled to be released at the two-thirds point, which is two years and eight months. However, all of those periods will be reduced by whatever time you have already spent on remand, which the Prison Service will determine. You may serve longer if you are awarded additional days for offences against prison discipline. When you are released, you will then remain under the supervision of a probation officer until the three-quarter point of the original sentence, which means that you will be supervised for a maximum of one year and a minimum of four months, although those figures may also alter if you are awarded additional days for disciplinary offences. During the supervision period, you will be liable to be returned to prison if you fail to comply with the terms of your licence or commit an imprisonable offence. For one year you will remain at risk of being returned to prison to serve the 569 balance of your sentence if you are convicted of an imprisonable offence. And it is fortunate that you are not already serving a sentence for another offence because the position would become even more complicated". I do not believe that spelling out the present system in court would help to allay people's concerns and confusion about the system.
Secondly, the provisions in the Bill ensure that there is no automatic release from prison. At present, 94 per cent. of those who go to prison are released automatically, subject only to any additional days awarded for disciplinary offences at the 50 per cent. point of sentence. The provisions in the Bill ensure that early release is earned. There has been concern that the earned early release schemes will be costly and difficult to operate, but they will build on and develop the existing earned privileges scheme which is bedding down very well in the Prison Service.
I say to the noble Lord, Lord Thomas of Gresford, that all the horrors he predicted in terms of the relationship between prison officers and prisoners have not been borne out in practice by the earned privileges scheme. The details of the scheme will be decided in consultation with those who will have to operate it—prison governors. The earned release scheme will provide a positive incentive for good behaviour that does not exist at present. Prison governors will retain the power to award additional days as punishment for disciplinary offences. They will be set against any earned early release days. The system will be more easily understood. For example, a person who is sentenced will be told that he is expected to serve that sentence unless by his own behaviour he earns up to 16 per cent. of earned early release. It is as simple as that.
The arrangements in the Bill will vastly improve the arrangements for post-release supervision. No longer will the length of the supervision period be determined by the point of release, as under the present system. Long term prisoners who receive no parole and are therefore deemed to be the greatest risk to the public are supervised for at most 8 per cent. of sentence under the present system. Under the provisions of the Bill all prisoners who serve sentences of 12 months or more will be supervised for a period equal to 25 per cent. of sentence whenever they are released. This means that high risk offenders who are currently refused parole will be supervised for substantially longer than at present.
In Clause 17 the Bill provides for the extended supervision of sex offenders. It will normally be for 50 per cent. of the sentence or at least for 12 months but it will be extendable to a maximum of 10 years at the discretion of the court. Breach of the conditions of supervision will in future be an arrestable offence. This will enable quick intervention to detain a person who has breached his conditions of supervision and bring him before the court. The court will be able to impose a range of penalties that is not now available. That will include imprisonment for the whole of the outstanding period of supervision. It will also be possible to attach a range of conditions to the release supervising order, in exactly the same way as now when an offender is released on licence. Risk assessments will continue to 570 be carried out as part of the process of sentence planning and setting the terms of the release supervision order. We believe that this adds up to a coherent and comprehensive package of proposals that offers real improvements on the present arrangements for early release and post-release supervision. We believe that these proposals are more honest and open than the present system and that they provide better protection for the public from potentially dangerous offenders after they are released.
Since our deliberations on Thursday of last week I have gone back to the Second Reading debates. I have re-read the deliberations of last Thursday. I have had two very constructive meetings with my noble friend Lord Belstead. I have had a rather shorter meeting with my noble friend Lord Carlisle. I have had discussions with my right honourable friend the Home Secretary. My noble friends have made a point that I believe requires further consideration. As a result of the discussions with my noble friends, I should like to take away the particular point that they make: the value of risk assessment by the Parole Board in determining the release of long-term prisoners. I understand their concerns about the absence of this matter from the present proposals which may not provide the best possible protection for the public.
I am not able to give details because I would like to think about it and possibly table amendments at the next stage of the Bill. However, perhaps I may indicate the kinds of things that I am thinking about. In the case of those who are subject to Parole Board risk assessment under the present system, it is possible at the 84 per cent. point of the sentence for short-term prisoners to be released on the basis of good behaviour. But for those who are considered to be long-term prisoners there would be Parole Board involvement in risk assessment and the determination of the supervision conditions. Therefore, the Parole Board would have an influence on the supervision period that followed a sentence.
However, the very important point is that everything that is contained in the proposals of the Government is post-sentence. All of the supervision arrangements are post-sentence. We believe it is wrong for the Parole Board, the Secretary of State or anybody to re-commit anyone to prison or to impose a sentence of any kind without the involvement of the court. For that reason we want to look at ways of retaining court involvement post-sentence for returning people during prolonged periods of supervision. That would address two issues. First, it would address the particular concerns of my noble friends about the risk that is presented to the public post-release and therefore the involvement of the Parole Board in the question of the safety of releasing someone into the community. Secondly, although I want to think about it further, I believe that it would have some impact on the two-monthly review of those who fall into that category in terms of continuous assessment over what may be a longer term sentence. Nevertheless, I hope that both my noble friends agree, given their experience in these matters, that the behaviour of a prisoner in prison must be material to any risk assessment post-release. Therefore, one cannot ignore behaviour in prison.
571 I shall look more closely at the particular areas of concern. But I still believe that a more transparent system is one in which a court says to an offender, "This is your sentence. On your behaviour your release will depend. On your possible risk to the public your release will depend". That will depend on the work that is done between this stage and the next stage of the Bill. This Bill exists precisely because of the interests of the public. The noble Lord, Lord McIntosh, said that in a moment he wanted to invite the Committee to consider the interests of society. I believe that the interests of society are reflected by the Government. The rationale for this Bill is the interests of society. The sentencing system appears confusing to the public, especially when the length of sentence is announced in court and they see prisoners coming out of prison as early as halfway through their sentences. The public simply do not understand that. We believe that the interests of the public will be better served by a more honest and transparent system in which the sentence served matches more closely the sentence that is imposed and release will be effected only on the basis of good behaviour. I hope that I shall be able to meet the concerns of my noble friends Lord Belstead and Lord Carlisle that others will be released on the basis of risk assessment, followed by effective periods of supervision, with strong and carefully thought out conditions which will influence their behaviour post-release and mechanisms to return them to custody or impose a range of sentences that can be administered by the courts.
§ 4.15 p.m.
§ Lord Campbell of Alloway
Before my noble friend sits down, I should like to put a short question. If one assumes that Clause 7 does not stand part, does she agree that that will not have any real effect on Part II? Clause 7 is purely declaratory, is it not?
§ Baroness Blatch
Clause 7 is an introduction to the measures that follow. It is the declared intention of those who propose that Clause 7 does not stand part of the Bill that the measures which follow shall be very different from those that are proposed by the Government in the Bill and those that they may want to modify in the light of the concerns of my noble friends Lord Carlisle and Lord Belstead. If the introduction goes, as sure as night follows day those who vote for the Motion, if successful, will vote for the next group of amendments which will completely wreck the Government's proposals in the Bill.
§ Lord Campbell of Alloway
I accept what my noble friend has said on the substance of the amendments. However, does she agree that if one construes Clause 7 its removal from the Bill will not affect the substantive clauses?
§ Baroness Blatch
Part II of the Bill would not work without Clause 7. That was certainly the point that was raised by my noble friend Lord Elton. Clause 7 needs to be in the Bill in some form, whether or not it is the 572 intention of noble Lords to produce another declaratory statement which introduces other provisions that they plan to substitute for the Government's proposals.
§ Lord Carlisle of Bucklow
It has been said by several Members of the Committee that of course Clause 7 is largely a declaratory clause. I made it clear that my purpose was to try to seek an explanation as to the reason for the changes that were being made and to express my concerns that, on balance, they were steps in the wrong direction. I am bound to say to my noble friend the Minister that, with the greatest respect, I still do not believe that we have really been given an answer as to why it is necessary to change the present system at all. I remain of the view that "if it ain't broke, don't mend it" applies to this part of the Bill.
The Minister said that we had had a short meeting. I hope that by use of the word "short" as related to the meeting she had with my noble friend Lord Belstead she was not implying that it was in any way acrimonious. It was short because we only had about five minutes when the Minister was able to speak to me and she started to put to me during that time certain proposals which she is prepared to look at again on this part of the Bill. I hope that I have that right.
I repeat that I have three major concerns. I am not against the idea that there should be clarity in what is said by the court. Indeed, our report recommended that the court should spell out what is the effect of a sentence when it passes it. My concerns are whether what is proposed will lead to an undue increase in the prison population, which my noble friend says she does not intend; whether it will lead to people being released without risk assessment for whom risk assessment should be made; and whether the system of early release is workable.
As I understand what my noble friend said—I would be grateful to have confirmation, even by silence—she is prepared to look again at the question of the terms on which people are released and she is prepared to look, as we did, at the division between short-term and longer-term prisoners and say that those who are over a certain stage of imprisonment—and I suggest that in this case it will have to be less than the present four years—should be reviewed by the Parole Board as at present and released under supervision to society for the greatest protection of society. I understand that that is one of the matters the Minister has said she will consider.
I understood the Minister also to say that she accepted and would look at possible concern over the mechanism of early release.
Although I am unhappy at the way it is achieved, the Minister also reiterated her view that it is not the intention of the Government that greater periods in prison should be spent than are being spent at the moment. If I am right in those three understandings, then, since I do not wish to be seen to be wrecking this part of the Bill and since a declarative statement and declarations of views have been expressed and the clause or that which follows will, I understand, probably have to be re-written to meet some of the matters to which my noble friend the Minister referred, I am 573 willing to withdraw my objection at this stage and to consider what my noble friend proposes before Report. However, I would ask her to confirm that those are the sort of matters which at least in general terms can be discussed.
§ Baroness Blatch
Perhaps I may touch on the three points my noble friend raised. First, I can tell him that we have made no secret that there will be a small increase in the prison population as a result of honesty in sentencing. We have accepted that some people will spend more time in prison; indeed, it is an answer to one of the points made by the noble Lord, Lord McIntosh, for those shorter-term prisoners would be supervised for less time and would in fact be in custody for a longer time. There is a balance because they would spend slightly longer in prison. The extent of the increase has been fully taken into account in the assessment and is part of the financial memorandum for providing the additional prison places.
It is true that I want to address the other concern my noble friend invited me to consider—the involvement of the Parole Board in risk assessment for the release of long-term prisoners and the Parole Board's involvement in setting conditions. I give him an absolute assurance that I would wish to do that. I have to add the caveat that we do not intend to contemplate earlier release than that provided for in the Bill. In other words, it would be the 84 per cent. point, that point when the maximum amount of remission could be gained from good behaviour. For short-term prisoners it would be on the basis of good behaviour. For the longer-term prisoners it would be subject to assessment of risk to the public, which is the lacuna which has been identified by my noble friends. My noble friend asked whether people would spend longer in prison. I have just answered that question in relation to the prison places. We believe there will be some marginally longer periods of time spent in prison as a result of honesty in sentencing because we are doing away with the much earlier release at the 50 per cent. and the two-thirds points.
§ Lord Carlisle of Bucklow
Perhaps I may ask my noble friend one matter. Do I understand from the second question she answered that she is prepared at least to listen to representations over the viability of the method of deciding on earlier release? I believe it requires investigation.
§ Baroness Blatch
Again, I can give my noble friend the assurance that I will discuss the matters with him and start to flesh out in more detail the proposals that we have in mind to address the concerns of my noble friends on this matter.
§ Lord Carlisle of Bucklow
I am grateful to my noble friend the Minister. In those circumstances, I do not believe there would be any advantage, on a declaratory clause of this nature, in testing the opinion of the Committee, because the opinion of the Committee is clearly a desire to see a method of release which achieves the punishment of the individual and the greatest protection to society. In those circumstances, 574 I beg leave to withdraw my Motion at this time, but I shall come back to it if necessary at Report stage when I have seen my noble friend's proposals.
Clause 7 agreed to.
§ 4.30 p.m.
Lord McIntosh of Haringey moved Amendment No. 33:
After Clause 7, insert the following new clause—
§ HONESTY IN SENTENCING
§ (". Where a court sentences an offender to imprisonment for a term, it, shall state in open court—
- (a) the minimum and maximum periods which the offender will spend in custody, taking into account the duties and powers of the Secretary of State under Part II of the Criminal Justice Act 1991;
- (b) the maximum and minimum periods during which the offender will be under the supervision of a probation officer after release; and
- (c) the maximum and minimum periods during which the offender will be liable after release to be returned to prison under section 40 of the Criminal Justice Act 1991.").
§ The noble Lord said: In rising to move Amendment No. 33, I speak to Amendments Nos. 40, 48 and 50 in Clause 10, and to Amendment No. 51, which is a new clause to be inserted after Clause 10.
§ The noble Lord, Lord Carlisle, is entirely within his rights not to pursue his opposition on the Motion that Clause 7 should stand part of the Bill. I listened very carefully to what the Minister said and I listened very carefully to what the noble Lord said. I rather think that he is reading more into the Minister's undertakings than is justified, but we need not pursue that matter because that will be resolved by the time we come to Report stage.
§ If the three undertakings which the noble Lord, Lord Carlisle was seeking were indeed to be reflected in government amendments or government agreement to other amendments at Report stage, the result would be, at least for Chapter I of Part II, a very different Bill from that which is before the Committee, and an even more different Bill from that which was presaged by the Home Secretary in his Blackpool speech to the Conservative Party Conference in 1995. The essence of what he was saying to the party faithful was that a sentence of four years means a sentence of four years in custody, or a sentence of two years, or whatever the case may be. If the parole board is to be brought back into the equation and if there is going to be effective reflection of the risk to the community in release, then we are moving a long way back to the parole board system. It leads us to ask the question whether there is any sense whatever in pursuing Chapter I of Part II of the Bill at all, or whether, as was said by the noble Lord, Lord Thomas of Gresford, it has been a public relations exercise.
§ Therefore, it is entirely appropriate that we should move on to Amendment No. 33, which seeks to set out for the benefit of public understanding exactly what is meant and what should be meant by honesty in sentencing. The principle on which we are working, and with which the Government appear to agree, is not that 575 either on balance or in many particular cases there should be any difference in the amount of time which prisoners spend in custody, because the Minister is now virtually saying that there will be no significant difference and therefore there will be no significant increase in the number of people held in prison. The principle is that it should be stated at the time of sentencing, which is the important time, what the implications of a custodial sentence are.
§ The Minister in her speech sought to make fun of the complication of the existing system. Her argument was quite amusing but it was not realistic. For example, in her mock-up—perhaps that is the way to describe it—of what the judge might say she included comments on what might happen if the prisoner were already serving the non-custodial part of an existing sentence. Of course, such complications will exist in whatever system we adopt. Perhaps in view of the Minister's undertaking she is not able to agree to my request, but I ask her to play the same game—it was only a game—in relation to what a judge would say not under the existing system but under that proposed in Part II of the Bill. We might find that what is proposed will result in at least as complicated a statement from the Bench as is required under the existing parole system. In any event, it is not all that complicated.
Amendment No. 33 provides that there should be a statement about:
the minimum and maximum periods which the offender will spend in custody, taking into account the duties and powers of the Secretary of State under Part II of the Criminal Justice Act 1991"—
in other words, Sections 33 to 51 of the 1991 Act, which are repealed under Schedule 6. The amendment also provides that a statement shall be made about:
§ "the minimum and maximum periods during which the offender will be under the supervision of a probation officer after release".
Is that complicated? Is it so difficult to understand? I do not believe so. It also provides for a statement about:
the maximum and minimum periods during which the offender will be liable after release to be returned to prison under section 40 of the Criminal Justice Act 1991".
§ All the Minister did was to embroider on that proposal. However, it is clear, it is definite, it preserves the conditions of the 1991 Act, which is what we seek to preserve, and it would be of benefit even if the Minister were to make significant concessions in negotiations with the noble Lords, Lord Belstead and Lord Carlisle. I hasten to say that if it seems appropriate I shall be willing to join in any discussions. That has always been my position; I do not hold myself apart from discussions which might lead to constructive results.
§ We still have the opportunity offered by the new clause to take the existing situation, with modifications which might be called for by any changes that the Minister might wish to make between now and Report, and say clearly what the provisions on honesty in sentencing should be and answer the only valid point which the Home Secretary addressed in his conference speech—that the public generally should be able to understand what is meant by reality in sentencing.576
§ I hasten to say that honesty in sentencing is not the only issue. There is the whole question of progression in sentencing to which we must return later in Committee and, if necessary, on Report. The two are inextricably linked and I do not believe that in Part I of the Bill, even as amended, the Government have provided for proper progression in sentencing.
§ Amendment No. 33, and the consequential amendments to Clause 10 and afterwards, are a blow for transparency, a blow for clarity and a blow for greater public understanding of what is meant by sentencing practice. I commend them to the Committee. I beg to move.
§ Baroness Blatch
I am sorry that the noble Lord thought fit to respond as he did to my reply to my noble friend's concerns about the risk assessment for the release of certain prisoners. Either we are a revising Chamber or we are not. I often face accusations, I believe wrongly, that the Government are immovable and will not consider change. I hope that the Committee will accept that between last Thursday and today I have done a great deal of footwork in discussing some of the anxieties which emerged from the debates and have made some progress. I should like to think that the noble Lord believes that that is the House doing its job and welcomes that.
A key theme of this group of amendments, standing in the name of the noble Lords, Lord McIntosh of Haringey and Lord Williams of Mostyn, is to retain automatic early release. Amendment No. 33 seeks to retain the present system of automatic release at the half-way point or two-thirds point with just a requirement for that to be spelt out in court. Amendments Nos. 40, 48 and 50 seek to introduce automatic release to the new early release provisions set out in the Bill.
As regards Amendment No. 33, we fully endorse the principle of introducing greater clarity and transparency in sentencing. This is the aim of Part II of the Bill and the new arrangements for honesty in sentencing which it introduces. It is also perhaps worth noting that there is nothing to prevent the court when passing sentence from explaining what is the effect of the sentence—either at present or in the future. However, we believe that honesty and transparency are best achieved by ensuring that the sentence served equates more closely to the sentence imposed in court. This is the purpose of the Bill as it stands but is certainly not the result of the new clause before us.
We believe that public confidence in the criminal justice system is undermined when offenders are automatically released from prison after serving as little as half their sentence. I repeat that the noble and learned Lord, Lord Taylor, described the present arrangements as:a charade, with everyone engaged in a calculation of how much less than the announced sentence will actually be served".This is exactly what Part II of the Bill is designed to avoid. In future, everyone—the court, victim and offenders alike—will know what the court's sentence means. The term imposed will match more closely the 577 time served; any time off will have to be earned, rather than granted as of right; and the offender will be supervised on release for a sufficient period to allow him to re-integrate into society and to provide adequate protection for the public. That period of supervision will be confirmed at the point of sentence.
All the above are achieved by the Bill as it stands. However, the new clause appears to envisage that the present arrangements would continue to apply, which means that 94 per cent. of those who go to prison would continue to be released automatically after serving just half their sentence. I do not believe that that would restore public confidence in the sentence of the court.
Part II of the Bill constitutes a radical and important overhaul of the current early release arrangements which are set out in the Criminal Justice Act 1991. I know that those arrangements continue to have their champions in this House. However, I believe that our proposals offer real advantages over the present system. Simply explaining the effect of the court's sentence, which is what this clause proposes, would not go nearly far enough to restore public confidence. It would not, in practice, make the effect of the sentence any better understood by either the victim or the public at large. The public at large are not present in court when the sentence is spelt out. I have given an example of what it would sound like to have a sentence spelt out. If the defendant in court understood it, that would be one thing; but I doubt whether the public outside would understand.
It is a straightforward case which does not involve either consecutive or concurrent sentences like the example I gave of the four-year sentence. Is that what the Opposition really mean by that almost garbled explanation which did not take into account the one complexity that I mentioned earlier; namely, where the person concerned had already been serving a sentence? Moreover, it did not deal with consecutive or concurrent sentences with which we are dealing in our proposals.
Is this what the trial judge is supposed to say each and every time he passes sentence? It is easy to see why the noble and learned Lord, Lord Taylor, described the present arrangements as a charade. Amendment No. 33 would simply perpetuate that charade. Our proposals are designed to replace the present arrangements with a far simpler, more straightforward and more honest approach.
Amendment No. 51, combined with Amendments Nos. 40, 48 and 50, seeks to remove the requirement that prisoners should earn any early release, and to substitute automatic awards. The amendments to Clause 10 would provide for automatic release at the maximum level that we are proposing for good behaviour by prisoners for those prisoners serving sentences of two months or more. That is 12 days for every completed two months of sentence. Amendment No. 51 would mean that prisoners serving sentences of two months or less would receive automatically up to three days early release for every completed two weeks of their sentence. Incidentally, as an aside, the noble Lord suggests up to three days, having abolished it being assessed on the basis of behaviour. However, the noble 578 Lord did not say how those three days would be determined in each two-week period. For example, will it be one, two or three, and on what basis will the "up to three days" be granted if it is not to he based on behaviour?
The amendments to Clause 10 introduce a further requirement that the court passing sentence informs the prisoner of the number of early release days to which he is entitled. That entitlement could be reduced if the prisoner was subsequently found guilty of a disciplinary offence and the reduction would be allowed to exceed the number of early release days already notionally awarded. There is also a provision permitting prison rules to set a maximum on the number of early release days a prisoner could lose.
The amendments would enshrine the principle of automatic rather than earned early release in the new early release arrangements in the Bill. That would significantly weaken the new arrangements in the Bill for the release of prisoners. It would certainly undermine a central element of the honesty in sentencing proposals which is that there should be no automatic release, irrespective of behaviour, before the end of the term of imprisonment that is imposed by the sentencing court.
The present automatic early release provisions provide no incentive for prisoners to behave well: they merely discourage prisoners from behaving so badly by awarding additional days for disciplinary offences. Automatic early release is neither understood nor supported by the public. That is why the proposals in the Bill provide for prisoners to earn early release. That is why the proposals provide for the earning of early release to be based on continual assessment.
The Bill's provisions provide a powerful incentive for prisoners to behave well throughout their prison sentence. Those that do so will be awarded the maximum early release. In practice this is about one-sixth of sentence length earned at a rate of 12 days for each two-month assessment period. Those that do not behave well will remain in prison to the end of their sentence. The Prison Service has already taken a step in this direction by recently introducing a new scheme under which prisoners must earn their privileges. Earned early release will be in line with one of the recommendations made in the Learmont Report on prison security. In that report General Sir John Learmont says that,if every day by which release was brought forward had to be earned … a cornerstone of good behaviour throughout the period of sentence would be laid. This is fundamental to the security of our prisons".I know that there has been some concern, particularly among prison governors, that prison staff will not be able to cope with the new assessment system. I do not share those fears. It is our intention that this new assessment be integrated into existing prison procedures wherever that is practicable. Prisons have already introduced arrangements for assessing the behaviour and performance level of privileges earned. Prisons are at this moment introducing an improved system for the planning and management of prisoners' sentences, which aims to regularise and unify present assessment 579 arrangements. I would expect the new assessment arrangements to be linked with or form a part of those procedures.
When one thinks of nurses, one realises that they are recording the state of a patient by the hour; indeed, they are doing so in the morning, in the afternoon and in the evening on a 24-hour basis. Moreover, if one takes the case of a teacher, he or she is recording the behaviour of the children on a daily basis. Why should it be any different for people who are managing prisoners? Why should they not be reminded that it is an important feature of management to be recording the behaviour of the prisoners in their care? For those reasons, I cannot recommend this group of amendments to the Committee. I very much hope that Members of the Committee will not follow the noble Lord into the Division Lobby should he decide to press the amendment.
§ 4.45 p.m.
§ Lord McIntosh of Haringey
It was significant that the Minister went straight back in her response to the claim that I had already dealt with—although perhaps at excessive length when considering the earlier debate—that the existing system represents automatic early release. That is not the case. It is not the case that it is automatic because there is still the provision for additional days to be served under certain circumstances. Moreover, it is not the case, as the Minister implied, that release is unconditional. Early release of any kind under the existing system is a suspension of the custodial part of a sentence rather than the remission of that sentence. It is always accompanied by a specific period of supervision with specific conditions which the person released has to comply with, and is always accompanied by the threat of a return to prison if necessary either when the period of supervision is still in force or, at the end of that, when the prisoner is still at risk. In those circumstances, it is simply a misrepresentation of the facts to return to the catchphrase of "automatic early release" as, I am afraid, the Home Secretary wished it to be understood when he made his statement about, "You don't serve half the time if you have done the whole of the crime". I have probably got the wording wrong, but the implication is still the same.
The second claim that the Minister made in her reply was that somehow by retaining the existing system—with whatever amendments she is prepared to discuss and negotiate, which would in turn mean that this amendment may be amended by any changes that the Government are able or willing to make—we would abolish any consideration for the behaviour of a prisoner while in prison; that could not be further from the truth. Under the Government's present proposals, only behaviour while in prison will affect the length of the custodial sentence and the length of the period to be served in custody. However, as I believe has been made very clear by those sitting behind the Minister, good behaviour in prison is not the only consideration. Indeed, the risk to the public is at least as great a consideration. If there is any advance to be made in 580 discussions between now and the Report stage, so much the better. That, in turn, could also be reflected in my amendment.
I simply do not see the analogy with teachers and nurses which the Minister made. Prison officers, like teachers and nurses, are always making assessments: sometimes they make informal assessments, and occasionally even formal assessments, of the prisoners in their charge. There is no doubting that fact. But if such assessments are to be turned into decisions about the time spent in custody, that would be decentralisation of decision making to a degree which the Government have never admitted before and perhaps ought to spell out in a little more detail.
Amendment No. 33 and the consequential amendments provide for the kind of discussions which could be undertaken. If the Minister is serious in the undertakings that she has given, or in the indications that she has given—I think she would probably shrink from calling them undertakings—some version of Part II of the 1991 Criminal Justice Act will survive. It is worth preserving that in the wording of this amendment. Therefore I have no hesitation in commending Amendment No. 33 to the Committee.
§ 4.50 p.m.
§ On Question, Whether the said amendment (No. 33) shall be agreed to?
§ Their Lordships divided: Contents, 152; Not-Contents, 164.582
|Ackner, L.||Dubs, L.|
|Acton, L.||Eatwell, L.|
|Alderdice, L.||Elis-Thomas, L.|
|Allen of Abbeydale, L.||Ezra, L.|
|Archer of Sandwell, L.||Falkender, B.|
|Barnett, L.||Farrington of Ribbleton, B.|
|Bath, M.||Fisher of Rednal, B.|
|Beaumont of Whitley, L.||Fitt, L.|
|Berkeley, L.||Freyberg, L.|
|Blackstone, B.||Gallacher, L.|
|Blease, L.||Geraint, L.|
|Borrie, L.||Gerard, L.|
|Bridges, L.||Gould of Potternewton, B.|
|Brooks of Tremorfa, L.||Graham of Edmonton, L. [Teller.]|
|Bruce of Donington, L.||Gregson, L.|
|Calverley, L.||Grenfell, L.|
|Carmichael of Kelvingrove, L.||Grey, E.|
|Carter, L.||Hampton, L.|
|Chandos, V.||Hamwee, B.|
|Cledwyn of Penrhos, L.||Hanworth, V.|
|Clinton-Davis, L.||Harris of Greenwich, L.|
|Crook, L.||Haskel, L.|
|Dahrendorf, L.||Hayman, B.|
|Darcy (de Knayth), B.||Hilton of Eggardon, B.|
|David, B.||Hoffmann, L.|
|Dean of Beswick, L.||Hollick, L.|
|Dean of Thomton-le-Fylde, B.||Hollis of Heigham, B.|
|Desai, L.||Holme of Cheltenham, L.|
|Diamond, L.||Hooson, L.|
|Donaldson of Kingsbridge, L.||Howell, L.|
|Donoughue, L.||Howie of Troon, L.|
|Dormand of Easington, L.||Hughes, L.|
|Hylton, L.||Redesdale, L.|
|Ilchester, E.||Ritchie of Dundee, L.|
|Jay of Paddington, B.||Robson of Kiddington, B.|
|Jenkins of Hillhead, L.||Rochester, L.|
|Jenkins of Putney, L.||Rodgers of Quarry Bank, L.|
|Judd, L.||Rogers of Riverside, L.|
|Kennet, L.||Russell, E.|
|Kilbracken, L.||Sainsbury, L.|
|Kirkhill, L.||Sefton of Garston, L.|
|Kirkwood, L.||Serota, B.|
|Lawrence, L.||Sewel, L.|
|Lester of Herne Hill, L.||Shepherd, L.|
|Lincoln, Bp.||simon of Glaisdale, L.|
|Listowel, E.||Smith of Gilmorehill, B.|
|Lloyd-George of Dwyfor, E.||Southwark, Bp.|
|Lockwood, B.||Stallard, L.|
|Longford, E.||Stoddart of Swindon, L.|
|Lovell-Davis, L.||Strabolgi, L.|
|McCarthy, L.||Symons of Vernham Dean, B.|
|McIntosh of Haringey, L.||Taverne, L.|
|Mackie of Benshie, L.||Taylor of Blackburn L.|
|McNair, L.||Taylor of Gosforth, L.|
|McNally, L.||Taylor of Gryfe, L.|
|Mallalieu, B.||Tenby, V.|
|Thomas of Gresford, L.|
|Mar and Kellie, E.||Thomas of Walliswood, B.|
|Mason of Barsley, L.||Thomson of Monifieth, L|
|Molloy, L.||Thurlow, L.|
|Monckton of Brenchley, V.||Thurso, V.|
|Monkswell, L.||Tope, L.|
|Monson, L.||Tordoff, L.|
|Morris of Castle Morris, L.||Turner of Camden, B.|
|Murray of Epping Forest, L.||Varley, L.|
|Nicol, B.||Wallace of Coslany, L.|
|Ogmore, L.||Walpole, L.|
|Oliver of Aylmerton, L.||Wedderburn of Charlton, L.|
|Oxford, Bp.||Wharton, B.|
|Palmer, L.||White, B.|
|Paul, L.||Whitty, L.|
|Perry of Walton, L.||Williams of Crosby, B.|
|Peston, L.||Williams of Elvel, L.|
|Prys-Davies, L.||Williams of Mostyn, L.|
|Ramsay of Cartvale, B.||Winston, L.|
|Rea, L.||Young of Darlington, L.|
|Addison, V.||Campbell of Alloway, L|
|Ailsa, M.||Campbell of Croy, L.|
|Aldington, L.||Carnegy of Lour, B.|
|Alexander of Tunis, E.||Carnock, L.|
|Allenby of Megiddo, V.||Chalker of Wallasey, B.|
|Anelay of St. Johns, B.||Charteris of Amisfield, L.|
|Annaly, L.||Chelmsford, V.|
|Archer of Weston-Super-Mare, L.||Chesham, L. [Teller.]|
|Arran, E.||Clark of Kempston, L.|
|Ashbourne, L.||Cochrane of Culls, L.|
|Attlee, E.||Colwyn, L.|
|Balfour, E.||Cork and Orrery, E.|
|Banbury of Southam, L.||Courtown, E.|
|Belhaven and Stenton, L.||Cranborne, V. [Lord Privy Seal.]|
|Beloff, L.||Crickhowell, L.|
|Berners, B.||Cuckney, L.|
|Biddulph, L.||Cullen of Ashbourne, L.|
|Blaker, L.||Cumberlege, B.|
|Blatch, B.||Davidson, V.|
|Boardman, L.||De Freyne, L.|
|Bowness, L.||De Ramsey, L.|
|Boyd-Carpenter, L.||Dean of Harptree, L.|
|Brabazon of Tara, L.||Denbigh, E.|
|Braine of Wheatley, L.||Denham, L.|
|Brougham and Vaux, L.||Demon of Wakefield, B.|
|Bruntisfield, L.||Derwent, L.|
|Burnham, L.||Eden of Winton, L.|
|Butterworth, L.||Ellenborough, L.|
|Byford, B.||Elles, B.|
|Elliott of Morpeth, L.||Milverton, L.|
|Elton, L.||Minto, E.|
|Erne, E.||Monk Bretton, L.|
|Feldman, L.||Montgomery of Alamein, V.|
|Ferrers, E.||Mottistone, L.|
|Fraser of Carmyllie, L.||Mountevans, L.|
|Gainford, L.||Mowbray and Stourton, L.|
|Geddes, L.||Nelson, E.|
|Gisborough, L.||Newall, L.|
|Glenarthur, L.||Nickson, L.|
|Goschen, V.||Norfolk, D.|
|Gray of Contin, L.||Northesk, E.|
|Grimston of Westbury, L.||O'Cathain, B.|
|Haddington, E.||Oxfuird, V.|
|Hailsham of Saint Marylebone, L.||Peel, E.|
|Hanson, L.||Perry of Southwark, B.|
|Harding of Petherton, L.||Peyton of Yeovil, L.|
|Hardinge of Penshurst, L.||Pike, B.|
|Harmar-Nicholls, L.||Pilkington of Oxenford, L.|
|Haslam L||Plummer of St. Marylebone, L.|
|Hayhoe, L.||Prior, L.|
|Hemphill, L.||Quinton, L.|
|Henley, L.||Rankeillour, L.|
|Holderness, L.||Rawlings, B.|
|HolmPatrick, L.||Reay, L.|
|Hood, V.||Rees, L.|
|Howe, E.||Renfrew of Kaimsthorn, L.|
|Inglewood, L.||Renwick, L.|
|Keyes, L.||Romney, E.|
|Kimball, L.||Rowallan, L.|
|Kinnoull, E||St. Davids, V.|
|Knollys, V.||Sandford, L.|
|Lane of Horsell, L.||Seccombe, B.|
|Lauderdale, E.||Shaw of Northstead, L.|
|Lindsay, E.||Skelmersdale, L.|
|Long, V.||Strange, B.|
|Lucas, L.||Strathclyde, L. [Teller.]|
|Lyell, L.||Strathcona and Mount Royal, L.|
|McColl of Dulwich, L.||Sudeley, L.|
|McConnell, L.||Suffolk and Berkshire, E.|
|MacFarlane of Bearsden, L.||Terrington, L.|
|Mackay of Ardbrecknish, L.||Teviot, L.|
|Mackay of Clashfern, L. [Lord Chancellor.]||Teynham, L.|
|Thomas of Gwydir, L.|
|Mackay of Drumadoon, L.||Trefgarne, L.|
|Macleod of Borve, B.||Trumpington, B.|
|Malmesbury, E.||Wade of Chorlton, L.|
|Marlesford, L||Westbury, L.|
|Marsh, L.||Whitelaw, V.|
|Merrivale, L.||Wilcox, B.|
|Mersey, V.||Willoughby de Broke, L.|
|Middleton, L.||Wise, L.|
|Miller of Hendon, B.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 5 p.m.
§ The Deputy Chairman of Committees (Baroness Turner of Camden)
I call Amendment No. 34. If Amendment No. 34 is agreed to, I cannot call Amendment No. 35.
The Earl of Mar and Kellie moved Amendment No. 34:
Page 5, line 27, leave outfrom ("concurrent") to end of line 29.
§ The noble Earl said: Amendment No. 34 relates to the backdating of sentences after a period of remand. I move the amendment because the Bill introduces the idea of refusing to backdate on the grounds of wasting time. I bring the amendment before the Committee because 583 I believe that not to do so would cause injustice and the possibility of unnecessary appeals against that injustice; and because I am interested in reducing friction in prisons and in young offender institutions. That belief is based on having worked in such an institution. I apologise to the Committee for not bringing forward a consequential amendment: the deletion of paragraph (d) of subsection (6).
§ In the context of deciding how much of the time spent on remand should be credited to the convicted prisoner, the Bill gives the court the power to decide whether the remand credit or "backdater", as it is known in gaol, would be just. That is presumably aimed at offenders who may appear to be slowing up the proceedings in an allegedly unnecessary way. At present, time on remand in England and Wales is automatically credited to the prisoner and, after a lengthy period of remand, may lead to the immediate release, or substantial reduction of time served after conviction.
§ Time spent on remand as an untried prisoner is probably worse than being on the convicted side. Not only is there a restricted programme for the untried or remand prisoner, leading to boredom, based on the dubious privilege of not having to work, there is also the constant movement of remand prisoners. Their collective anxieties on the remand wing far exceed those on the convicted wings. That is because the outcome of the trial and conviction is already known, is being worked out, or slept through, with a release or lib date on the horizon. The automatic crediting of the remand period is extended to all periods of remand. That contrasts with the Scottish practice where the backdating is decided by the sheriff or High Court judge, often at the prompting of the defence agent. The usual Scottish practice is that when the remand period has been interspersed by a period of bail, only the latter part of the remand forms part of the backdating. There is no requirement to explain the formula used.
§ As regards the proposed practice for England and Wales, it seems to me that the frequent use of the power in Clause 8(3)(b) could be unjust in a number of ways. First, the fault could lie with dilatory or incompetent lawyers both for the defence and the Crown Prosecution Service. Secondly, the fault could lie with other co-accused and/or their lawyers. Cases with multiple co-accused are notorious for their delays. Thirdly, should a co-accused be on bail, only the accused on remand would be required to serve extra time for time wasting. Fourthly, it might wrongly encourage an accused person to plead guilty and not to opt for trial, which is his right, for fear of being accused of unnecessarily delaying the proceedings. That could also lead to a compound punishment. The accused can already be punished by loss of a discount for a timely plea of guilt.
In its response to the White Paper, the Magistrates' Association states:
The Association sees great difficulties in assessing how much time on remand is attributable to time wasting, and regards this part of the proposal as unworkable".
That is a view from the sharp end about a new, controversial, onerous and marginally useful task. It may ultimately lead to appeals against this element of sentence. It certainly poses problems of uniformity between courts and 28,000 lay magistrates on the bench as it is based on subjective criteria.
§ I conclude with the suggestion that the rigorous application of time limits at each stage of the pre-trial process would be more helpful. I cite the scrupulously observed Scottish 110 day rule as an example of an achievable working practice in this respect. The amendment would prevent injustice and subsequent appeals, and reduce whingeing and complaining in prison. I beg to move.
The Lord Bishop of Southwark
As Bishop of Southwark, I minister through my chaplains to several prisons. One of them, Brixton, which I have visited twice in recent months, endures conditions of great overcrowding. I am told that last week up to 150 prisoners were admitted into the induction wing for people who had never been in prison before. Some had received their sentence but many were on remand. Despite the exemplary work of prison officers and governors, conditions are very bad. Prisoners spend their time banged up for all but two or three hours each day. Even food is eaten while locked up in cells.
Some spend many months in prison on remand, and as more cases become drug related and the complexity of evidence delays the date of trial, periods of remand get longer. Virtually no periods of employment or education are provided for those on remand in prisons such as Brixton. That is not the fault of the prison staff, who suffer from shortage of numbers. Where bail cannot be obtained, prisoners sit and wait.
However, Clause 8 of the Bill allows the court not to count time on remand as part of the sentence if it seems "just in all the circumstances". The White Paper Protecting the Public suggested that courts should leave out of the sentence any period attributable to time wasting spent on remand. I cannot imagine anyone on remand in Brixton Prison choosing to waste time in such conditions. As the noble Earl reminded us, less competent lawyers may delay a case. Nevertheless, the Magistrates' Association regard the Bill as unworkable. I believe that out of a sense of natural justice this part of the clause should be deleted. I support the amendment.
§ Lord Carlisle of Bucklow
Perhaps I may ask the Minister whether I understand correctly the purpose of this part of the clause. It gives a wide discretion to the judge to decide whether or not time spent on remand should count towards the sentence. If that is so, surely common justice requires that the representations of the individual or his counsel should be heard before that decision is made. Perhaps I have misunderstood the point.
§ Lord Williams of Mostyn
Perhaps I may assist the noble Lord. He refers to the next amendment, which I shall move.
§ Earl Russell
There is in this part of the Bill, which my noble friend's amendment seeks to delete, a discrepancy between the words in the Bill and the purpose which we are told by the White Paper those words are intended to serve. The words in the Bill are that the court in all the circumstances may not give a direction if it is in the interests of justice. But we are told that the purpose of the provision is to prevent time-wasting.
I think that we in this Committee know perfectly well that time-wasting is something that the other side does. The notion is inherently subjective. In sentencing a prisoner, we shall be judging whether the prisoner's conduct was time-wasting on an assumption that the prisoner is guilty. That is an assumption which the prisoner may be continuing to contest and which may even in future be tested on appeal. In giving an extra sentence for time-wasting, because we believe the prisoner, being guilty, was prolonging and evading the inevitable, we may be subjecting the prisoner to something that has at least a faint resemblance to double jeopardy.
There have been cases of this sort before. Cases have been tried in this House where it was said that the offender had made his offence worse by defending himself. It is the sort of thinking to which this approach gives a very dangerous opening. While I do not suggest that anything like that is in the mind of the Home Secretary, if we leave a power like this on the books to be used in the time of future Home Secretaries, I do not know where it may lead.
We should also always bear in mind, in extending power to detain people on remand, that the procedure of bail contains within itself an inherent social bias. It is perfectly obvious that it is very much easier for those who are propertied and well-connected to obtain bail than it is for those who are not so. Imprisonment on remand always bites more severely on one part of the population than it does on another.
When I was young I used in my folly to believe that if we thought hard enough we should soon think of an alternative to bail. I am a great deal less confident of that than I was 30 years ago. But, just for that reason, I become rather more wary of powers to extend time spent on remand. Imprisonment is a penalty. I do not want to subject people to a penalty for defending themselves.
§ 5.15 p.m.
§ The Lord Advocate (Lord Mackay of Drumadoon)
In seeking to respond to the amendment, I should perhaps confess an interest, having had throughout my experience of the criminal courts in Scotland a similar, albeit not identical, provision there. Periods spent on remand have always been taken regard of. Sometimes they are allowed in full in backdating the sentence; sometimes the sentence starts from the date when it is imposed. On the basis of my experience both as a defence lawyer and a prosecutor, I have never been conscious of any of the concerns raised by noble Lords in speaking to this amendment.
586 The clause as drafted requires the court to direct that the number of days spent by an offender on remand in custody for an offence shall count as time served as part of the sentence. Two exceptions are proposed to this general approach. First, remand time may not be counted if and to the extent that rules governing the counting of remand time towards consecutive or concurrent sentences provide that no such direction shall be made. I shall draw attention to those rules in a little more detail in a moment. Secondly, it is provided that remand time shall not be counted if the court's view is that it is just not to do so in all the circumstances.
It is important to bear in mind the precise terminology of subsection (4)(b) of Clause 8:it is in the opinion of the court just in all the circumstances not to give a direction under that subsection".That means just not simply to the offender (the defendant) but just to the wider public. The court is required to have regard to both those matters in addressing the issue of whether or not it is just in all the circumstances.
We believe that such a discretion is fundamental to the justice and good administration of the new provisions set out in Clause 8 for more honest sentence calculation by the courts. Clause 8 simplifies the existing law governing the calculation of remand time against sentence. But there is the potential for anomalies in sentence calculation to arise whatever system is adopted. It is impossible for the clause to cater for all the possible permutations that may arise when sentence calculations having regard to periods of remand are carried out. It is impossible for the calculations to anticipate all the specific factors that may be of relevance in particular cases. It is for that reason that this discretion is set out on the face of the Bill.
The clause as drafted reflects the fact that it will be the exception rather than the rule where the court does not give full credit for remand time against sentence. A discretionary power is, however, necessary to allow the court to take account, as it considers appropriate, of all the circumstances where the outcome of counting total remand time towards sentence is patently unjust or anomalous.
Perhaps one or two examples may illustrate the point I seek to make. Let us take the case of an offender on remand in custody for two offences which are tried on separate occasions for good reason. The defendant might be given a prison sentence in respect of one of them, against which the remand time would be counted. Some time later he would fall to be dealt with in connection with the other matter whether or not he had been released from any initial period of imprisonment and would be required to be sentenced separately for that separate offence. In those circumstances, clearly the remand time that had already been credited towards the first sentence should not also be counted towards the latter sentence. The courts should have the right to exercise judicial discretion to ensure that the remand time would not be credited twice. Other circumstances in which discretion not to credit the full remand time might come into play would be where an offender was serving a term of imprisonment in default of payment of a fine at the same time as being on remand in custody 587 for an untried offence. Discretion would be needed if the court's view was that the period of time which he had served in respect of the fine default should not be credited towards his sentence in respect of the offence for which he was simultaneously remanded in custody.
A further example of the need for discretion, highlighted in the White Paper, arises in the question of time-wasting. Experience in Scotland has shown that it is perfectly possible not only for professional judges but for lay justices to work out when an accused person, as opposed to his solicitor or counsel, falls to be blamed for any delay which may have arisen. As I said at the outset, I am not conscious of any of the prejudice remarked upon by noble Lords who spoke in support of the amendment.
It is important to bear in mind that two safeguards will ensure that such discretion does not result in injustice. First, where the court decides not to credit the full remand time, Clause 8 requires the judge or magistrate to state reasons for not doing so in open court. Secondly, an offender will have a right of appeal against the overall length of his sentence. That should help to ensure judicial consistency. It is clearly an area where in the fullness of time the Appeal Court could exercise its power to issue guidelines if that proved necessary to put these provisions into practice.
I have already mentioned the rule-making power set out in Clause 8(4)(a) of the Bill. Many Members of the Committee will have seen the report of the Select Committee on the Scrutiny of Delegated Powers which invites the House to consider whether Clause 8 should either be amended to ensure that the Secretary of State consults on the draft rules or that there should be a formal ministerial undertaking that such consultation will be conducted.
I am happy to be in a position to give such an undertaking. I fully appreciate the significance of these rules which, as the Committee pointed out, can affect the liberty of the defendant. These rules are necessary because the crediting of remand time towards consecutive and concurrent sentences can be a complex and technical matter and the courts will need to know what principles to follow in making the calculations.
In view of the complexity and importance of the issues which arise from putting these provisions on the face of the Bill, the Government fully accept the need for consultation on the detailed contents of the rules prior to their being laid before Parliament. I remind Members of the Committee that the rules will be subject to affirmative resolution.
I hope that, on the basis of that explanation and the undertaking given in connection with the rules, it will prove possible for the noble Earl, Lord Mar and Kellie, not to press his amendment.
§ Earl Russell
Perhaps I may ask the noble and learned Lord the Lord Advocate one question before he leaves this matter. It was with great pleasure that I heard a Minister of the Crown defend the exercise of judicial discretion. The argument was powerful and persuasive. However, suppose all the judges should decide that days 588 on remand should not count towards sentence; or suppose one judge should always take that decision. Would the Home Secretary accuse such a judge of flying in the face of the will of Parliament?
§ Lord Mackay of Drumadoon
I am not sure that it is helpful to anticipate what the Home Secretary would do in the extreme hypothetical situations on which the noble Earl focuses. I detect in his question a certain chiding of the Government for relying on the existence of judicial discretion to ensure that justice is done. Perhaps I may say to the noble Earl, with the greatest respect, that that chiding may have issued because he overestimates the extent to which the Bill interferes with judicial discretion. To elaborate on that might take us back to the discussions of last week. As we have many other amendments to address, I decline to become too involved at this stage.
§ The Earl of Mar and Kellie
There is a certain irony in someone from these Benches rooted in the Scottish criminal justice system being answered by someone else who is also so rooted. However, that is one of the merits of an international assembly such as this Committee.
I was keen to put forward this amendment because it addresses a matter introduced into a system of automatic backdating, unlike the Scottish system which is not automatic but discretionary. Prisoners do not like it when a change occurs. I am always concerned about keeping the atmosphere in prison fairly light; I am also concerned that we keep the roof on the prison. I know that an upset prisoner requires a lot of assistance from the staff and that an angry prisoner is not only a pain in the neck but also liable to have a very deleterious effect on the prison.
I was pleased to hear that the use of the provision with regard to time-wasting was expected to be rare. I sincerely hope that that will be the case. It is extremely subjective and therefore how it would stand up to scrutiny on an appeal is obviously a matter of concern.
I am very pleased to hear from the noble and learned Lord the Lord Advocate that the rules will come before this Chamber. Therefore, while thanking the right reverend Prelate the Bishop of Southwark and my noble friend for their support, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Williams of Mostyn moved Amendment No. 35:
Page 5, line 29, at end insert—
("( ) In forming an opinion under paragraph (b) of subsection (4), a court shall invite and take into account any representations on this matter by the offender or by his legal representative.").
§ The noble Lord said: This amendment in the names of my noble friend Lord McIntosh of Haringey and myself deals with the practical difficulties which were prefigured by the noble Lord, Lord Carlisle, a moment or two ago and most helpfully developed by the noble and learned Lord the Lord Advocate in his reply to 589 the observations of the noble Earl, Lord Mar and Kellie, and the noble Earl, Lord Russell. I listened to them very carefully and found them extremely beneficial.
§ Clause 8(4)(b) gives the sentencing court—which I take to be a magistrates' court as well as a Crown Court for the purposes of jurisdiction in England and Wales—the discretion to order that time served on remand shall not count against a sentence. That discretion is given to the court if the court takes the view that it is just in all the circumstances not to give a direction.
Rather different language is found in the explanatory memorandum at Part II. There it is stated that Clause 8 gives the court the discretion to allow time spent on remand not to count towards sentence. The words used there are,
unless, in all the circumstances of the case, it considers it unjust to do so".
That is slightly different.
§ The reason that I go to the explanatory memorandum, Clause 8, is that the language used there is precisely the terms of the amendment which Members of the Committee rightly carried last Thursday. The noble and learned Lord the Lord Advocate said a moment ago that what we have here is a question which can affect the liberty of the defendant. Agreed. He said that it is a complex and technical matter. Agreed. He said that it is right to maintain the exercise of judicial discretion. Agreed.
§ The noble and learned Lord the Lord Advocate put all these matters so much better than I could that I simply move this amendment on the basis that, if there are technical matters and if there is judicial discretion, there should be a statutory requirement—which is all this amendment seeks—for the court, before it takes away a defendant's liberty on the basis of not allowing remand time to count, to invite, and to take into account, representations made by the offender or his legal representative.
§ It is important to bear in mind that, as all practitioners know, 95 per cent. of criminal work takes place in the magistrates' courts. Not every defendant is represented, even in the Crown Court. This is a perfectly sensible, efficient and workable amendment. I would expect that the noble and learned Lord the Lord Advocate would readily recognise the coherence of thinking between what I have said and what he said only a moment or two ago. I beg to move.
§ Lord Carlisle of Bucklow
Having risen to support the noble Lord, Lord Williams of Mostyn, on this point on the previous amendment, when I got the amendments wrong, perhaps I may say that nothing that he said has dissuaded me of the view that I then held, which is that it would be common justice to accept that anyone in this situation should be represented or have the chance to make representations 590 before a decision of this nature is taken. I hope that my noble and learned friend the Lord Advocate will explain that that is the Government's position.
§ Lord Thomas of Gresford
I strongly support the amendment moved by the noble Lord, Lord Williams of Mostyn. I represented someone who spent seven years on remand, three years in Pentonville and four years in Brixton. I agree with everything that the right reverend Prelate said about incarceration in those institutions. Remand is not an easy option for anybody.
I was interested to discover to what circumstances Clause 8(4)(b) referred. I waited with interest to hear from the noble and learned Lord the Lord Advocate what the Government had in mind. He referred to the double-counting of time spent on remand. I believe that that was quite recently the cause of an unusual and unexpected release of a flood of prisoners from prison. On appeal it was held that to count the remand period twice was not lawful. Accordingly, this is not one of the circumstances which can possibly be in the minds of the Government under Clause 8(4)(b).
The noble and learned Lord referred to the case of someone serving a term of imprisonment for failing to pay a fine concurrently with a period on remand. I cannot see why, when a person has been arrested and held in custody for a serious offence, the fact that he concurrently serves a period of imprisonment for failing to pay a fine should in any way affect the situation.
So one comes to the third heading: time wasting. If a person is to serve a period of imprisonment for the very serious criminal offence of wasting time, the very least that one can expect is that he should have the right to make representations to the court, either personally or through his advocate, to prevent that sentence of imprisonment being imposed—because that is effectively what it is—and to make sure that all the facts are properly disclosed and are before the sentencing judges, be it magistrates or the Crown Court judge.
§ 5.30 p.m.
§ Earl Russell
I rise to join issue briefly with a few remarks made by Mr. David Maclean on behalf of the Home Office. Speaking in another place on 26th November last (cols. 188–9) he said:I do not think it is necessary or wise to provide explicitly for this in statute … To do so in these circumstances might be to imply that in others there is no need to take account of defence misrepresentations".There seems to be quite a depth of legal misunderstanding behind that remark.
The requirement to hear both sides is a basic requirement of natural justice. I shall not speculate on how far back in English law that goes because it is a great deal further than it is wise to take us tonight. But that requirement is perfectly clear. There is no danger of it disappearing in one place because it is specified in another. The argument for specifying it is lest the statute might appear to be attempting to overrule it.
591 I do not for one moment deny that a statute may overrule natural justice or indeed do absolutely anything else that it likes. But, as the Home Office knows perfectly well, statutes which purport to overrule natural justice are rightly construed a great deal more strictly by the courts than any other statutes. They might then avoid a good deal of trouble by accepting the amendments of the noble Lord, Lord Williams of Mostyn.
§ Lord Mackay of Drumadoon
am grateful to the noble Lord, Lord Williams, for accepting my advocacy at an early stage. I hope that he will continue to accept what I say and depart from his amendment. As I said earlier, there are similar provisions in Scotland which work perfectly well without any requirement in the legislation that before taking account of a period spent in remand, the court has to invite and take into account any representations on this matter by the offender or his legal representative.
Clearly, the Government do not argue with the principles that lie behind the amendment. It is a standard part of the criminal procedure both north and south of the Border that the accused man or the defendant should have the right to make representations about whether it would be just to disallow any time spent in remand counting towards his prison service or the date from which any prison service is to be imposed.
But, quite genuinely, we do not consider it necessary to provide explicitly for that in statute in the form that the amendment proposes. Any representations that the defendant might wish to make either personally or through counsel in respect of receiving the lightest possible sentence can be made during the speech in mitigation prior to sentence being passed. The clause as drafted makes clear that the magistrate or judge must take account of all the circumstances of the case in reaching a decision. That will include any mitigating factors raised by the defence and, following the coming into force of these provisions, will include taking account of factual material as to the period spent in remand, which will no doubt require to be placed before the court, I assume by the prosecutor. Certainly that is the practice in Scotland.
The criminal justice system in England works on the basis that, where a court is minded to make a decision which is to the disadvantage of the defendant, the defence is given the opportunity to address the issue in question. That is as it should be and common practice reflects that underlying principle. If, for whatever reason, a court was minded not to credit the full remand period and no mention is made of remand time in the mitigating speech, I should have thought it implicit that the court would invite the defence to make such representations before reaching a decision. I have to say, again based on my experience, that invariably when a period has been spent on remand and it is competent for the court to take it into 592 account, it forms part of the plea in mitigation seeking to gain the maximum advantage for an accused person of such a period in custody.
I recognise that this amendment seeks to place on the face of the Bill principle and practice which are accepted. However, as the Minister said in another place, there is a danger that doing so might imply that in other circumstances a court should not take a similar tack of inviting defence representations. Clearly, we would not wish to give any cause for believing that that is the case.
I should like to remind the Committee of an important safeguard against any potential injustice in that respect. As I have already indicated, the court has to explain in open court why its decision has been reached and the defendant will have a right of appeal. If, for whatever reason, the court had not properly exercised its discretion or had denied a defendant the right to make submissions on this important matter, I have little doubt that the appeal would be successful.
Returning to the point I made at the outset, I hope that on this occasion at least the noble Lord, Lord Williams, will accept that experience from north of the Border suggests that this particular amendment is unnecessary.
§ Lord Williams of Mostyn
I am most grateful for that careful exposition. Our stance is one of principle. Of course the defendant has the right to be heard but if he is not represented or is inadequately represented, which I believe happens on some occasions even south of the Border, there ought to be a mechanism in place to deal with putting things right. With great regard to what the noble and learned Lord said, I cannot believe that if a man is unjustly treated, the mere existence of a right of appeal is a better mechanism to deal with it than getting the matter right first time. However, the noble and learned Lord the Lord Advocate has made it perfectly plain—I am most obliged to him—that in respect of this particular statutory power it is expected that the opportunity to make representations will be given in every case, whether or not the defendant is represented. On the basis of that specific assurance, we have achieved our object. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 8 shall stand part of the Bill?
The Earl of Balfour
Subsection (4) of this clause reads:Subsection (3) above shall not apply if and to the extent that … rules made by the Secretary of State so provide".I have raised this matter in regard to previous legislation that has passed through this Chamber. I was under the impression that regulations are made by the Secretary of State but that rules are usually made by a court. I do not say that I necessarily have any right to expect an answer now but between now and Report, 593 would my noble and noble and learned friends on the Front Bench consider whether they are using the right words there? I feel that it should read:regulations made by the Secretary of State and rules made by a court".
§ Lord Mackay of Drumadoon
I am happy to take the advice of parliamentary counsel as to whether the clause as presently framed is in the correct terms. We shall report further on that at Report stage.
Clause 8 agreed to.
Clause 9 agreed to.
Lord Belstead moved Amendment No. 36:
After Clause 9, insert the following new clause—
RELEASE ON LICENCE OF LONG-TERM PRISONERS
(".—(1) After a long-term prisoner has served three-quarters of his sentence, the Secretary of State shall, if recommended to do so by the Parole Board, release him on licence.
(2) Where a long-term prisoner is released on licence, the licence shall, subject to any revocation under section 28 below, remain in force until the date on which he would (but for his release) have completed his sentence.
(3) In this section, a "long-term prisoner" means a person serving a sentence of imprisonment for a term of four years or more.").
§ The noble Lord said: The reason for tabling this amendment and the amendments grouped with it is that the new remission scheme for prisoners, set out in Clause 10 and subsequent clauses, looks certain to put the general public at greater risk than it is at present of prisoners committing further crimes when they are released early. In making that assertion, I do not imply that I did not listen carefully to what the Minister said earlier in this afternoon's proceedings. I realise that this is perhaps an issue on which we are not seeing entirely eye-to-eye.
§ My reason for making this assertion is simply that Clause 10 will award early release days at a maximum rate of 12 days every two months on a test simply and solely of good behaviour—or behaviour of the "prescribed minimum standard" as the Bill rather dryly puts it. That is not risk assessment.
§ I ask the Committee to contemplate for a moment the situation of a robber or the attacker of a defenceless pedestrian being released early from prison under the Bill to live near one's home, having had no proper risk assessment as to whether or not he is still a danger to the public. I would guess that most people would not be happy about that situation. It takes little imagination to realise that many prisoners have little difficulty in behaving well in prison, but do not necessarily experience a change of attitude or of criminal intent and in some cases can remain as much a danger to the public as on the day that they were sentenced.
§ It is exactly that problem which, for the past quarter of a century, the parole system has tried to tackle by weighing up the risk of releasing a prisoner early. As a result, reconvictions for parolees are lower by some half to two-thirds than the reconviction rate for non-parolees. I was heartened therefore to hear my noble friend Lady Blatch, in relation to the first amendment this afternoon, indicate that the Government recognise the danger to 594 the public of the early release of, at any rate, long-term prisoners without risk assessment and that the Government will now accept risk assessment for more serious offenders. I assume of course that the release will be based on risk assessment reports.
§ Nonetheless, I tabled Amendment No. 35 in order to record factors which I expect my noble friend the Minister to take into account in any discussions following today's debate. I have therefore adhered to the new clause, which has the effect of retaining the opportunity for prisoners serving sentences of four years or more—in other words, long-term prisoners—to have a single parole review at the three-quarter point in their sentence. If at that point the long-term prisoner is granted parole, he or she will be supervised for the remaining 25 per cent. of their sentence, which is exactly the time stipulated in the Bill for supervision.
§ As the Committee will already have perceived, the new clause is limited. It is simply a method of inserting into the new remission scheme one opportunity for long-term prisoners to have a single parole review. However, though the amendment is limited, the new clause will do a great deal to put right three major problems inherent in the remission scheme.
§ First, it will provide a full-scale risk assessment for long-term prisoners and will not just tip those more serious, fixed-term prisoners out into the community on grounds of good behaviour. That is absolutely in line with the directions the Home Secretary gives to the Parole Board at the present time. They make clear that, in considering early release, "primacy—the Home Secretary's word—must always be given to the safety of the public.
§ The second advantage, which is a spin-off of the amendment, is that at the parole review it would be possible to decide what conditions should be placed on a long-term prisoner's supervision period which will either follow immediately if parole is granted, or after sentence if parole is refused. The aim of extra conditions is to reduce recidivism by obliging an offender to tackle problems which contributed to his or her criminality; for example, drugs, alcohol and anger. But setting the right licence conditions is only possible if the supervising probation officer—the probation officer who will supervise when the offender comes to that part of the country to live—contributes to and sees the reports on which early release is to be based. As the Bill stands, it does not seem that probation officers will be required to undertake the wide-ranging risk assessment which they currently provide for a parole review nor, significantly, to impose licence conditions based on that assessment and specifically aimed at reducing risks. Those are serious omissions which would be put right by my amendment.
§ Thirdly—more briefly, but just as importantly—the new clause would make it much more possible to recall a long-term prisoner than under Clause 14, which requires court proceedings to be started if recall is to take place. I realise from what my noble friend said 595 earlier that this is an area where the Government feel that the Bill has got it right. Perhaps I can say briefly therefore that the effect of Amendments Nos. 68 to 71 and 73 to 79 is that if a prisoner starts to go off the rails; if he ignores licence conditions relating to victim protection or psychiatric oversight; if he leaves a rehabilitation centre or abandons offence-focused work; if for any reason a prisoner under supervision looks as though he or she is about to re-offend, there can be recall before and not after another crime is committed. As the noble and learned Lord, Lord Ackner, indicated earlier this afternoon, that is an essential safeguard now for public protection.
§ The amendments do not jeopardise the Bill. They tackle the three issues to which I have just referred in Clauses 10 to 14, which will jeopardise public safety if amendments are not made. I am heartened that my noble friend Lady Blatch recognised that danger, particularly in relation to the release of long-term prisoners who, as the Bill is drafted, would be released without a real risk assessment. I hope that the additional points I have made in speaking now to these amendments can be taken into account in the discussions which the Minister kindly offered following this Committee stage. I beg to move.
§ 5.45 p.m.
§ Lord Pilkington of Oxenford
I served on the Parole Board for six years and, like my noble friend Lord Belstead, I am delighted that the Minister is showing some sympathy with the thinking behind this amendment. The participation of the Parole Board would be of particular importance for those offenders—there will be many of them—who are released for good behaviour six, seven or eight months before the completion of their sentences.
Prison officers on their own are not the best fitted to be the judges of risk or to set the conditions of licence. While on the board I had considerable experience of the reports from prison officers. Many were not good. They were often bland and vague. It is not surprising that, in conditions of open reporting in prisons, reports were not as direct as one would have liked.
More than that, I should like to underline something of the nature of the Parole Board that makes it the best judge of risk and of conditions of licence. First, it is independent. Secondly, the Parole Board consists of a wide range of expertise: judges, psychiatrists, probation officers and independent members drawn from a wide range of professions.
I add another fact. Since the last Criminal Justice Act it has been the practice of the Parole Board to require one of its members—not one who considered whether or not to grant parole—to conduct a lengthy interview with the offender at the prison. The interview would last anything from between 40 minutes to one hour. When I sat on the board I found that the reports of those interviews—often covering four or five pages—were of inestimable value; they were of much more value than the rather limited reports of prison officers. Inevitably, hard pressed, overworked prison officers, living and working within the prison, are much influenced by the 596 exigencies of the prison service. This element of independence and detachment is very important if the interests of the general public are to be guarded. As I have said before, under the Bill, an offender serving four years would receive as much as seven or eight months' remission for good behaviour before the end of his sentence. Therefore, in her discussions with my noble friend Lord Belstead I would urge the Minister to take note of these points.
Viscount Colville of Culross
I certainly did not come to the House this afternoon with the intention of making a Second Reading speech, and I shall try very hard to avoid doing so. However, I have looked at Chapter I of Part II of the Bill as it was printed and as it has come before the Committee. I do not think it is a financial interest that I have to declare but I was the predecessor of the noble Lord, Lord Belstead, as chairman of the Parole Board and a very good and happy colleague of the noble Lord, Lord Pilkington. The Committee will appreciate that since then I have spent most of my time trying to administer justice in the Crown Court in the same way as some noble Lords may do, although perhaps not many of them, on a regular basis.
We have all got used to the 1991 legislation. Indeed, I was part of the arrangement whereby Sections 33 to 51, now to be swept away by Schedule 6, were put onto the statute book. I am very concerned about the risk assessment element which has been mentioned during the course of the debates today. The noble Baroness, Lady Blatch, said that that will be looked at again. Therefore, nothing I can say will do anything other than, I hope, point consideration in certain directions. However, when one is passing sentence in the Crown Court—I hope that this is a wholly non-political matter—one has to consider the assessment of risk and the way in which that will be dealt with at the end of any sentence one may pass.
I am not sure whether noble Lords have previously considered the aspect of the 1991 Act which deals with longer than normal sentences. Longer than normal sentences can be passed—not of course exceeding the maximum that is laid down by statute but exceeding what might otherwise be the amount that the Court of Appeal has advised us to pass in such cases—when one is dealing with a violent or sexual offence. I should like to illustrate what I am saying by referring to arson. Under Section 1(2) of the Criminal Damage Act arson carries a life sentence, and rightly so because it is a very worrying offence. It is not included as part of the arrangement in Part I of the Bill whereby people will automatically have certain offences registered against them and at the end of the day they will receive a life sentence. Arson is not among those. But arson is one of the most difficult and complicated issues with which we have to deal when it comes to sentencing. Indeed, the Court of Appeal has said—I am certain, from every background I have, with great justification—that one always ought to have some medical evidence before one deals with it.
597 The case of an arsonist, if one is going to give him an ordinary sentence, a longer than normal sentence or anything else other than a life sentence, will involve a risk assessment. If it is a life sentence, under the Bill there will be a risk assessment, because that is still left in the hands of the noble Lord, Lord Belstead, and his colleagues on the Parole Board. However, it is anything else, there will be no risk assessment.
I looked at one of the cases we have in the encyclopedia. It took place in 1988. It involved an arsonist. He lived in a ground-floor flat of a block of dwellings. He piled his furniture together, set light to it and then went. When he was arrested he said that he was fed up with life, that he had forgotten about those living upstairs and he claimed not to realise that they were at risk. He had 18 previous convictions, including two for arson and eight for criminal damage. He was put on probation with a condition requiring him to reside and undergo treatment at a clinic forming part of a mental hospital. Within a few months he left the clinic and was brought before the court for failing to comply with the requirements of the probation order. He was then sentenced to five years' imprisonment. That was before the 1991 Act came in allowing longer than normal sentences. There were medical reports—he was of low intelligence, he was subject to schizophrenic episodes and personality disorder, he lacked insight and was likely to set further fires in future. But he was unsuitable for a normal mental hospital and had been refused admission to a special hospital.
At the end of the five years one would have thought that it would be necessary for there to be a risk assessment. Under that legislation, and under the legislation as it now exists, that risk assessment is undertaken by the Parole Board. People who sentence in the Crown Court do not pass sentences of four years or more in order to make people subject to assessment by the Parole Board. It would be wholly wrong and it would be set aside on appeal if we did. But we are aware, because we are trained, that if we sentence people to more than four years there will be an assessment by the Parole Board before they are released as a matter of risk assessment and other conditions such as have already been mentioned by the noble Lords, Lord Belstead and Lord Pilkington. That is to go; or is it?
The noble Baroness, Lady Blatch, suggested that we might think again about this. I have talked to colleagues in my court about the kind of case I have described as it would stand under the Bill. Clause 22 is the continuity of sentencing exercise. If the Bill is left as it stands we shall have longer than normal sentences in the kind of case I have described of someone who is obviously a serious potential risk when released. We are supposed to pass what is approximately the same time in prison as that person would otherwise have served under the old regime. We are also aware that there will no longer be any process for risk assessment before that person is let out. I do not see how any court can pass a sentence which is approximately the same. There is no mechanism whereby you can test whether at the end of the time you pass as a sentence that person is fit to go out except by taking the views of the wing officer in the 598 prison. I am very much afraid that the Bill as it stands at the moment on this issue will force judges to pass longer sentences than would otherwise be the case.
I dare say that we shall all be trained and told what to do about it. At the moment, because we know that we are dealing with somebody who certainly will not receive a life sentence, which would be totally unjust, that person will be released and be confronted by the public again, having had no risk assessment whatever. The only way in which we can protect the public—that is one of the things which, as I understand it, judges are supposed to do as well as being fair in every possibly way to the offender, the victim and anybody else concerned—is to increase the length of sentence. I do not believe that that is what the Government are trying to achieve in this part of the Bill. If the noble Baroness intends to look at this matter again, I hope that she will use that to illustrate why this particular provision will simply not work satisfactorily and that she will perhaps consider it as part of a revision of the regime that she is putting forward.
§ 6 p.m.
§ Lord Hope of Craighead
I do not wish to prolong this debate, but I would like to endorse the observations of the noble Lords, Lord Pilkington and Lord Belstead, about the work of the Parole Board. I have never served on it, but I have observed the Parole Board at work. I went to visit the board in my capacity as Lord Justice General of Scotland and I have also seen reports by the board in connection with tasks that I had to perform. I have also seen and been able to compare its work with the reports provided by prison officers, who no doubt do a very good task under difficult conditions.
I endorse with all the strength I can what has been said about the quality of the work which the Parole Board can perform and the value of the work it can do with the various expertise which its members bring to bear on the difficult problems with which it has to deal. I urge the Minister to think very carefully about abandoning that particular input into the criminal justice system, bearing in mind the aim that we all share which is to protect the public against the risk of re-offending.
§ Lord Carlisle of Bucklow
The noble Viscount, Lord Colville, has given a very clear example of the way in which this Bill may have the effect of increasing sentences in a manner which the Government say they do not intend. I hope that my noble friend the Minister will bear in mind what the noble Viscount said.
I do not want to repeat the arguments that we had earlier as regards Clause 7 of the Bill. However, I wish briefly to support Amendment No. 36 in the name of my noble friend Lord Belstead. The Minister has implied that we are to look again at what is really the restoration of parole. At the moment the Bill does away with parole other than for life sentences. If we are to look again at risk assessment for long-term prisoners, we would be looking at the return of parole, and that is important for the protection of the public. I hope that the Minister will put forward proposals on this matter 599 which will command the general support of this Chamber. In fact, we need something along the lines proposed by my noble friend Lord Belstead. In other words, if sentences are to be two-thirds their present length, we should see whether that person is to be released based on risk. Then we shall have the kind of protection that we have at the moment, with the advantage that the longer period of supervision suggested by the Government in the Bill will cover an equivalent period of supervision if the prisoner was released having completed 50 per cent. of a longer original sentence.
There is one point about which I really wish to ask my noble friend. At the moment subsection (3) of the new clause in the name of my noble friend Lord Belstead, states,
In this section, a 'long-term prisoner' means a person serving a sentence of imprisonment for a term of four years or more".As I understand it, that has always been the classic definition of a long-term prisoner used by the Home Office, and that is why the present provisions provide for automatic release up to four years and only with the approval of the Parole Board after four years. If we are to be serious in the intention of reducing by one-third the sentence passed by the court, then technically the sentence line between longer and shorter-term prisoners should be reduced to two years and eight months. That might be unrealistic, but I suggest to my noble friend that if we are to live in a regime where it is the desire and intention of government that the judiciary should pass sentences which are one-third shorter than they are at the moment, it will be necessary to reduce the definition of "long-term prisoner" from four years to three years so that people will be subject to risk assessment at a suitable point in the sentence, as they are at the moment. Unless one does that, one is in fact saying that many people will no longer have risk assessment.
§ Lord McIntosh of Haringey
I apologise to the noble Lord, Lord Belstead, in that I was detained outside the Chamber for the first part of his opening speech. I want to support the general thrust of this complex group of amendments very much for the reasons suggested by the noble Lord, Lord Carlisle, just now. In effect, the noble Lord, Lord Belstead, is proposing the restoration of the Parole Board, with virtually all of its current responsibilities. We very much support that and hope that the indications given by the Minister in her response to the debate on Clause 7 mean that.
I heard one part of the speech of the noble Lord, Lord Belstead, in which he spoke about recall powers. It occurred to me then to wonder whether I should have grouped my Amendment No. 57 with this group, because that amendment is specifically designed to retain the powers which the Parole Board now has to order the immediate recall from post-release supervision of somebody who has been breaking the conditions. In the debate on Clause 7 the Minister 600 referred to the power to go back to court laid down in Clause 14. That is fine as far as it goes, but it is not an immediate recall of the kind—
§ Baroness Blatch
It is possible for a person to be arrested on the spot for a breach. The most likely way in which that would be done would be on information provided by a probation officer. The person would be held in custody and the opportunity would be sought for a court hearing the following morning in order to confirm whether the person should remain in custody or be released on bail before the breach is properly considered. In relation to an arrestable offence, that person can be taken into custody on the spot for breaching the terms and conditions of the supervision order.
§ Lord McIntosh of Haringey
I accept what the Minister says. The committing of an arrestable offence is not quite the same as that which the Parole Board is prepared to consider. At the moment the board considers a report from a supervising probation officer. That officer may not feel that the breach of the conditions of the post-release supervision order is sufficiently explicit or serious to justify an arrestable offence which would lead to a new term of imprisonment, which is what Clause 14 provides.
Under the present arrangements, the supervising probation officer reports to the Parole Board, which meets daily for that purpose. As I understand it, it considers recall applications as the first and urgent business of that daily meeting. The Parole Board is then enabled to order a recall to prison immediately, without the court considering the matter or there being any further arrestable offence.
It may be that in extreme cases the Minister is right and that what is proposed in Clause 14 could result in very rapid recall. But that is not the same as recall under the existing sentence, which is what is now provided. When that was debated in another place, Mr. Maclean said that the difference is that the release supervision order under the new arrangements will be in addition to rather than part of the prison term. That seems to me an entirely technical answer that does not deal with the issue of the protection of the public, which I understand to be the basis of the amendments in the name of the noble Lord, Lord Belstead.
It may be that I am not raising this in a definitive way and that it would be better for the Minister to take advice on the matter rather than to respond immediately. But I believe that the issue which I raise in Amendment No. 57 is of great importance and germane to the amendments to which the noble Lord, Lord Belstead, has been speaking.
Having said that about my amendment, I wish to support everything that the noble Lord, Lord Carlisle, said about the importance, in the discussions which are to take place, of restoring the responsibilities of the Parole Board, because that is the only way in which risk to the public will resume its pre-eminence in the consideration of the amount of time that prisoners should spend in custody and what sort of supervision should take place after they have been released.
§ 6.15 p.m.
§ Lord Ackner
I should like to register my support for the amendment in the name of the noble Lord, Lord Belstead. I shall not express my reasons because they have been covered, and in any event there is no question of a Division on this amendment.
I stress that it is very important that the Parole Board should continue to have the power to recall if it is anticipated with good reason that breach of the conditions may occur. Odd behaviour, acting as a danger signal, should give power to act, as occurs now. One wishes to prevent breaches and future offences, not merely wait until they occur. I too support fully what has been said by the noble Lord, Lord Carlisle, that the period of four years needs to be brought down to at least three years, both in this amendment and the amendments which the noble Lord, Lord McIntosh, had in mind.
§ Baroness Blatch
My noble friend's amendment seeks to combine for long-term prisoners the current parole arrangements with the earned early release arrangements set out in Part II. I have listened carefully to the debate and in particular I have listened to my noble friend Lord Belstead, whose experience and knowledge of the parole system I hold in great respect.
I understand and share my noble friend's concerns to ensure that any system that we have in place for dealing with the release of prisoners both affords the public proper protection and affords the best opportunity for the prisoner to follow a law-abiding and constructive life on his return to the community. It is for that reason that I made clear in speaking to Clause 7 that, as regards the release arrangements in the Bill, we must see how best to build in the release of the most serious long-term prisoners. I do not believe that the amendments proposed by my noble friend Lord Belstead would be the best way forward. However, I give my noble friend an assurance that I shall make every effort to see that a way will be found to achieve that.
One very evident anomaly arising from the proposed amendments would be that those prisoners who have committed less serious offences and who have received a sentence of less than four years would have to serve at least five-sixths of their sentence, whereas an offender who had committed a more serious offence and had received a longer sentence could serve as little as three-quarters of it. I do not believe that the public would understand or would even accept that. Prisoners would not understand it or accept it, and we do not believe that it is consistent with the aim of honesty in sentencing.
As I understand the effect of the amendment, long-term prisoners would continue to earn early release. A prisoner serving a four-year sentence who did not receive parole would nevertheless be eligible for release before the end of the sentence if he behaved well. In other words, he would be released at exactly the same point as under the provisions of the Bill.
Therefore, the main effect of the amendments would be to release some prisoners earlier than under the provisions in the Bill. None would be held for longer. And if the prisoner were released early on parole, then 602 all the work that had been undertaken to assess the prisoner's behaviour under the earned early release scheme would be largely redundant.
Those released earlier on parole would of course be released on licence, such that they could be recalled to prison on the recommendation of the Parole Board to serve the remainder of their sentence. But the licence period would be no longer than the 25 per cent. supervision period provided in the Bill. The range of conditions that could be imposed would be the same. The possibility of return to prison is provided for in the Bill if supervision is breached.
The early release arrangements in the Bill improve upon the present system and protect the public. The proposals in the Bill ensure that all prisoners will serve their full sentence unless they behave well; there will be no automatic release, as there is now for short-term prisoners, and I must remind the Committee that that is the majority of prisoners. About 90 per cent. of people who go to prison serve sentences of less than four years.
The proposals in the Bill ensure also that all prisoners serving sentences of 12 months or more will be subject to a period of supervision equal to 25 per cent. of the sentence; that sex offenders will be supervised for at least 50 per cent. of the sentence and up to 10 years; that a range of conditions can be attached to the supervision period of any prisoner, just as they can now be imposed when an offender is released on licence; and risk assessments will continue to be carried out as appropriate as part of the process of sentencing, planning and setting of post-release conditions.
If an offender breaches conditions, he can be returned to prison. In deciding whether to imprison, the court is required to consider the same issue—the protection of the public—that the Parole Board must consider before recommending the recall of a prisoner. There is no other constraint on the court when considering a return to prison. If the court judges that that is inappropriate, it has a range of other options that are not available under the present system which it can take; namely, probation, community service, curfew orders. As I say, they are not presently available. I believe that in the light of the changes we are now contemplating, we should want to build on those advantages and further improve the scheme.
Perhaps I may pick up on one or two points mentioned by Members of the Committee. My noble friend referred to the role of the probation officer. Under the terms of the amendments and the terms set out in the Bill, there is no way in which this will work without the expertise and influence of the probation officer. That simply is not possible. The views of the probation officer, particularly the through-care workers and those working in the Prison Service, will be extremely material in reports which go either to the Parole Board and/or to people carrying out the assessments of the shorter-term prisoners.
All of the examples of breaches mentioned by my noble friend, unlike the interpretation placed on them by the noble Lord, Lord McIntosh of Haringey, will be arrestable offences. If the Parole Board or others set conditions about behaviour that are material to the 603 indexed offence—for example, someone who has been involved in child abuse may be hanging around school gates or someone who gets drunk may frequent the pub every night—and there is evidence that that pattern of behaviour is repeated, it will be possible to regard it as an arrestable offence. All breaches of conditions will be considered to be arrestable offences. It will allow flexibility to deal with breaches from the most minor to the most serious throughout the whole period of supervision. The setting of conditions will be a very important part of that process.
The noble Viscount, Lord Colville of Culross, made some important points. First, I give him the absolute assurance that I will take very seriously all that he has said in deciding what to do at the next stage of the Bill in addressing the concerns that have been expressed. The illustration that he gave involved acts of arson. The other day I met a young man who was just 24 and had already served a life sentence. He had been found guilty of a number of arson offences, during one of which people had died. I was shocked to find that he was still aged only 24 and was back in the community. I had a slight intake of breadth when the noble Viscount said that a person who had 18 previous convictions, two for arson, had been put on probation. I am no judge of the appropriate sentence, but I suggest that that raises eyebrows just a little.
Viscount Colville of Culross
The noble Baroness cannot say that. When one is confronted with a person in this position sometimes there is a point in putting him on probation. I do not know what happened in this case, but it was before the 1991 Act. One could try it out to see whether the person would abide by the conditions of the probation order. He is told that if he does not he will be brought back before the court. This man did not abide by the conditions, was brought back before the court and given five years. I and justices sitting with me have done this in order to see whether there is any way out of what would otherwise be an impossible dilemma. If not, the person is sentenced accordingly. The noble Baroness must not raise her eyebrows. With respect, she does not know the way in which one must deal with these matters in practice.
§ Baroness Blatch
I believe that I am as free to raise my eyebrows at the circumstances of a particular case as any member of the public. I only know what I am told. I concede that I do not know all of the circumstances. However, this person had 18 previous convictions, two of which were for arson. I simply pose to myself the rhetorical question: had probation been tried before? The point that the noble Viscount makes, which I take seriously, is that when the court considers the sentence the assessment of the risk if the person is released back into the community is a factor in the mind of the judge. That is a matter which will weigh heavily with me in the course of the debates and discussions that I will have between now and the next stage of the Bill in order to address the issue of the protection of the public.
604 The noble Viscount went on to describe this offender. There are measures in the Bill, which we will discuss at a later stage, that give the court more flexibility to deal with mentally disordered offenders so that it does not have to chose either prison or hospital. It can impose a hybrid sentence that may be prison with a hospital direction. I believe that that would be a welcome addition to the disposals available to the court.
We want to retain the principle that there should not be automatic release or staged early release but that before someone is released into the community the question of whether it is safe to release him is addressed. My noble friend referred to subsection (3) and long-term prisoners. This was a matter discussed only in passing because we had insufficient time to develop it in earlier discussions. If one is referring to sentencing and the release arrangements for long-term prisoners, clearly one must take a view as to what is a short-term and what is a long-term prisoner. I am entirely seized of that point and I want to include it as part of the package of proposals to be brought back to Committee. It would involve taking a view as to what the sentence should be now and what the comparable sentence would be under the new arrangements.
The noble Viscount also referred to freedom to give longer sentences in certain circumstances. Nothing in this Bill will preclude judges from doing that. I see Clause 22 as being interpreted in the following way. If a judge felt that had he been sentencing under today's proposals he would have given a longer sentence, that would be the starting point for determining the two-thirds of the longer sentence. We do not want to preclude that. The effect of Clause 22 would be very much a continuum not only of normal sentencing but longer than normal sentencing.
I return to a question posed by the noble and learned Lord, Lord Ackner. He referred to waiting for a crime to be committed. In setting out the supervision arrangements we specifically do not intend that someone must commit a crime before he can be dealt with. We intend that breaches can relate to any of the conditions laid down before a person is released. Therefore, it may be a matter of displaying the kind of behaviour that leads to crime. Perhaps someone takes up drinking again or begins to demonstrate threatening behaviour towards a partner similar to that which was involved in his previous crime.
§ Lord Ackner
It was not a question of waiting for someone to commit a crime but of a breach of the conditions. The point that I sought to make was that a situation might occur well before a breach of the conditions in which the person behaved in a worrying way without breaking the conditions and the psychiatrist, or even the probation officer, said, "This augurs ill. If I do not do something soon there will be a breach of conditions".
§ Baroness Blatch
I understand the point that the noble and learned Lord has just made. On many occasions in discussions with probation officers, for whom I am responsible, they have spoken of patterns of 605 behaviour that give rise to concerns about the kinds of crimes that they may lead to if they remain unchecked. We see that as being related precisely to a condition. It is easy to describe a condition where a breach would be committed if that happened.
Recently I came across a case involving a particularly violent offence against a partner. A different partner went to the police to describe the kind of behaviour that the individual was displaying 'which made her very nervous. When the police cross-referenced with the probation officer, the probation officer immediately realised that this was just the kind of behaviour that had preceded the indexed offence. A return to custody was then initiated through the Parole Board. All of that would be possible under the supervision arrangements in the Bill.
I remind the noble and learned Lord that even under the present arrangements, when one comes to the at-risk period, which is still within the sentence period, it is a very different matter. An offence must be committed. One wants to get away from the necessity for an offence to be committed before people can be dealt with. Pervading the whole of the supervision period should be the belief that behaviour that gives rise to concern must he dealt with by making sure that the conditions are properly spelt out.
In the light of what has been said and my assurance that I will think carefully about these matters, in particular the whole question of safe release into the community, I hope that my noble friend will not press his amendment.
Viscount Colville of Culross
Before the noble Baroness sits down, 1 am wholly in favour of her proposal to discuss this matter with the noble Lords, Lord Belstead, Lord Carlisle and Lord McIntosh. Will she also discuss it with the noble and learned Lord the Lord Chief Justice on behalf of the judiciary? This is completely new and it must be workable by the judges. Before the Bill and the provision go to Report stage in an amended form, it must be discussed with the judiciary to see whether they can handle it. Can the noble Baroness give an assurance as to that?
§ 6.30 p.m.
§ Baroness Blatch
If I may say so, it is not nearly new. The tension between what we have at the moment and the proposals in the Bill is that before long-term prisoners are released into the community they are released on the basis of a risk assessment into the community with conditions. I am simply looking for ways of taking that form of release into the community at the point when they are eligible for release into the community and working it into—not grafting it on—the system we have at the moment. There is nothing new. The way it is envisaged that the parole board will do its work is exactly the same as it is now, taking its information from the sources it takes its information from now: probation officers, psychiatrists, medical people, the Prison Service and anybody who has any involvement with the prisoner, using exactly that same system. I want to consider doing that. It is nothing new; 606 it is simply an adaptation of the release arrangements for the longer-term prisoners as opposed to the shorter-term prisoners.
§ Lord Shepherd
The noble Viscount made a plea. Surely the noble Baroness would not resist the wish of this Committee that she should consult with the Lord Chief Justice.
§ Baroness Blatch
I have given assurances throughout the whole of this day that I will discuss this with all the relevant people, including the Lord Chief Justice. The point I was taking at issue was that this is new; it is not new. It is a question of taking the best of the present system and making sure that it does not compromise the intentions of the Home Secretary that there should not be automatic release on the basis of nothing other than it being automatic, and that certainly there should not be an earlier release contemplated other than at the maximum point at which one could be released under the provisions of this Bill.
§ Lord Belstead
I shall speak briefly because I know that the Committee wishes to proceed. There were three reasons I suggested for this group of amendments. The first lies at the heart of any debate on law and order. Are prisoners, once they are released, going to return to crime or are they not? If I have learnt anything in the last four years working with the Parole Board it is that the chairman requires a little humility in these matters. Nonetheless, the available evidence shows that prisoners on parole are reconvicted at much lower rates than non-parolees, and this is significant protection for the public. However, parole is decided by assessing the risk of earlier release of an individual prisoner into the community and not by a test of good behaviour in prison, as the Bill is worded at the present time.
The second reason for the amendment was that it would be a practical way of enabling, at a parole review, the board to decide what special conditions should be placed on the prisoner's period of supervision. Surely, it is going to be quite considerable at 25 per cent. of the sentence. It still remains totally unclear to me how, for instance, hard-pressed prison officers can possibly decide whether a prisoner needs psychiatric treatment on release or whether a special and probably crucial victim protection condition should be imposed. But these can be life and death decisions which, under the amendment, can be decided professionally and independently at that particular point of sentence.
My understanding of the reply of my noble friend Lady Blatch is that the Government recognise that those two reasons for the amendment are based—these are my own words—on Protecting the Public, using the exact title of the White Paper which preceded the Bill, and that she accepts the case put for those two points and intends to proceed as she described in her most valuable assurance; namely, seeing how we can bring again within the scope of the Bill the parole procedure for long-term prisoners.
Having heard the speeches in support of this amendment from those with very much more expertise than I shall ever have, indeed from noble and learned 607 Lords as well as other of your Lordships, and particularly the speech of my predecessor as chairman of the Parole Board, the noble Viscount, Lord Colville of Culross, it is enormously important that we have such an assurance from my noble friend Lady Blatch.
The one point on which my noble friend has not been able to meet the amendment concerns recalls. With the greatest respect to this Government, I believe that the problem is of their own making. The difficulty about the recall situation is that if you push the release date up into the region of 80 per cent., then you are going to find that the period under supervision is being spent entirely after the sentence has been served by the prisoner. That is why the Government do not like the way in which Amendment No. 57 of the noble Lord, Lord McIntosh, is drafted. This is a real impasse. It is going to be very difficult despite what has been said by, for instance, the noble and learned Lord, Lord Ackner, of the enormous importance of trying to see that recalls work so that one recalls somebody before and not after he has committed another offence. It is going to be very difficult to see if that can be achieved. I am by no means sure that it can be done. All I can say this afternoon is that I will continue to keep this in view. I will not harry my noble friend because I owe some thanks to her for showing that even with so much legislation on her shoulders, she is still capable of listening sympathetically. I beg leave to withdraw this amendment.
Amendment, by leave, withdrawn.
§ The Deputy Chairman of Committees (Viscount Allenby of Megiddo)
Before calling Amendment No. 37, I should inform the Committee that if this amendment is agreed to then I cannot call Amendment No. 38.
Clause 10 [Award of early release days for good behaviour]:
Lord Thomas of Gresford moved Amendment No. 37:
Page 6, line 19, leave out ("for a term of more than two months").
§ The noble Lord said: This amendment is grouped with other amendments. I have addressed the Committee earlier today on the difference between the present system, which depends upon a fixed date of release followed by supervision and conditions, and the proposals that exist in the Bill. However, I make no apologies for returning to this particular topic because, to my mind, it is vital.
§ My amendments seek to introduce into the framework of the Bill an entitlement to earlier release as opposed to a discretion. The amendments propose that we should have a fixed date subject to additional days for misdemeanours which are proved through a proper procedure. The discretion to which I refer is in the hands of the corporal, the warder on the landing. The Minister in her reply to the Question, That Clause 7 shall stand part, likened the prison warder to the teacher dealing with a pupil or the nurse dealing with a patient, and 608 pointed out that the teacher and the nurse are concerned with constant monitoring of his or her charges. That seems to me to be not a very good analogy.
§ The prison warder is not trained in the same way to make assessments of this kind. He is not a person who has any specific expertise or calling to judge his fellow men. He is there simply to keep people contained and locked up. One can envisage that some form of training would be necessary for him to make the kind of assessment that nurses or teachers may make of the charges under their control. Therefore, if the prescribed person who, as I have already indicated to the committee, is simply defined as the person prescribed in prison rules, and if the prescribed person is either the prison warder or a person advised by the prison warder, how is he to exercise that discretion? What is the difference between a prisoner behaving well and thereby getting early release days awarded to him for reaching or exceeding the prescribed standard of behaviour, and a person who is so misbehaving as to be on a charge in front of the governor? What is the limbo land where a prison warder judges that the prisoner has not reached the prescribed standard of behaviour? What does that mean? Does it mean that he has not made his bed, has not cleaned his shoes, has been rude to the person who has cooked his meals and has not washed up? If so, it sounds like my own home life.
§ What is the prescribed standard of behaviour which prisoners must achieve in order to obtain early release? If they fall below the prescribed standard and do not get a tick on the assessment, what happens then? Are they told about it? Does someone come along and say, "You have to make your bed every morning, look smarter and dress better"? What kind of regime is envisaged that a prison warden must look at and judge? What temperatures does he have to take? What standards are required? I am trying to point out that between failing to meet a minimum standard and misbehaving there is a completely vague area. It is left to a warder or someone of that level to try to determine, and one can see the problems which will be created.
§ The Minister referred to the issues that I set out in an earlier address as a set of horrors which will not come about. They are not horrors that I have invented. They were horrors, to use her word, which were set out by the General Secretary of the Prison Governors' Association in his article in the Guardian on 11th February. I want the Minister to address the problems that I earlier outlined and to tell us what the Government intend to do about 60,000 assessments every two months. Where will the records be stored? If the assessments are not recorded, there will be no way of checking that they have been made, what kind of progress has been made and so forth.
§ How will they deal with the intimidation which might occur on the landing? How will they deal with favouritism, racism and all the problems outlined by the noble and learned Lord the Lord Chief Justice in his forceful speech on Second Reading? Are there to be appeals against assessments or is the matter to be left simply in the hands of the person prescribed without recourse to higher authority? In that case, a person may fall into the limbo-land below the prescribed minimum 609 standard of behaviour and have no redress. He will simply be marked down and be moved off the register and, on the Minister's own analogy, will not be able to appeal to the headmaster to put the record straight on his behalf.
§ It is not enough for the Minister to say, "Well, we already have a system in operation whereby prisoners are assessed for the purposes of giving them privileges". There is all the difference in the world between giving a privilege to a prisoner to work in a certain capacity in a certain part of the prison or a specific privilege of free time within the prison and denying to him his freedom to go out into the world. One cannot equate those two types of assessment and say, "If we can give the prisoner privileges we can also leave it in the hands of the prescribed person to deny him his liberty".
§ Finally, if there is no fixed date for release towards which a person can work in order to make plans for the future—I will not accept the automatic date of release—what about the supervision plans that are to be made for him, his ability to apply for jobs and the ability of his family to look forward to him returning to be a breadwinner and to play a useful part in society? If the date is not fixed but is variable at the whim of the prescribed person—I say that the Bill permits the prescribed person to make whimsical decisions—the planning for release is that much more difficult for the person, who is suffering enough by being deprived of his liberty during his period of incarceration.
§ Like the noble Viscount, Lord Colville, I have the problem of sentencing people from time to time. Obviously, people who commit a crime deserve to be punished, but I repeat that the best protection for the public is that those people should come out of prison and lead a decent and honest life. All our planning for their release should be directed to that end. I beg to move.
§ 6.45 p.m.
§ Lord Carlisle of Bucklow
I strongly support the noble Lord, Lord Thomas. He outlined all the problems which Clause 10 raises and which have not been answered. How will the new system of early release work in practice? I understand that the prescribed person is to be the prison officer on the landing. How is he to decide whether an individual has attained the prescribed minimum standard? What is the prescribed minimum standard? Is it a standard that is laid down? How can the prison warder decide whether he can have regard to the extent to which the prisoner's behaviour during the period has exceeded that standard? What does that mean? I understand from the Minister that it means that the prisoner must have shown active co-operation. However, if you are in an overcrowded local prison and banged up in your cell for 23 hours a day, how in practice, even if your heart is entirely in the right place, do you show co-operation which exceeds the minimum standard that is expected? What does it mean?
Surely what the noble Lord, Lord Thomas, said is right. Let us imagine that in the heat of the summer in 610 a fraught, overcrowded prison during the last two months of a sentence one prisoner is granted 12 days' early release in order to attend a particular course but another is granted only six days because it is said he has reached only the minimum standard. I cannot fail to see anything other than tension caused between the prisoners, leading to problems within the prisons. I understand that that is exactly what prison governors have warned the Government about.
I notice that there is to be a right of appeal to another prescribed person. Who is that person to be? Is it to be the governor? How much resource time is to be used? One cannot ignore the points made by the noble Lord, Lord Thomas. For example, if there are 60,000 people in prison, a certain number of them will be serving under two months so they can be ignored. However, you must take into account those on remand because that remand may count towards the period of imprisonment eventually decided upon. Let us say that there are only 40,000 of the 60,000 prisoners who require assessment at the two-month level. How long is assumed for the purpose of working out the resource implications? What is the length of time considered necessary to make an assessment on an individual prisoner? There must be some time involved. If you have 40,000 prisoners being assessed every two months, surely there must be very substantial resource implications.
I do not want to repeat what I said earlier, but perhaps I may remind my noble friend the Minister that this has been tried before. I know that it is a long time ago but when remission or early release first came in, it was based on a marks system. Prisoners were awarded marks for good behaviour. In the earlier part of this century, which perhaps only the noble Earl, Lord Longford, will remember, that system was abandoned because it was found to be inoperable. The authorities moved instead not to automatic release as my noble friend always says but to a situation where, provided he behaved properly, a prisoner was given a target date on which to aim for release. If he failed to behave properly, days were added to that target and he failed to come out on that date.
As I said, the marks system was soon abandoned and we moved to a system where release was accepted, unless the person was involved in behaviour which was not good. I do not see why it is said to be less of an incentive to say to someone, "You will not come out on such a day unless you behave yourself", than it is to say, "You will come out on such a day if you behave yourself". That seems to me to be the difference, in some ways. With the greatest respect to my noble friend the Minister, I must admit that I am not persuaded as to how in practice the new system will work without putting great pressure on the Prison Officers' Association and increasing the tensions in prison.
§ Lord Burnham
I may seem very stupid but, as I read it, Amendment No. 37 would make no difference to someone who is serving a sentence of more than two months or someone who is serving a sentence of less than two months. I listened with great care to the noble 611 Lord and my noble friend and I have heard no word addressing the specific amendment under discussion. Are we perhaps talking to some other amendment?
§ Lord Carlisle of Bucklow
I should point out that I was talking to the other amendments that are grouped with Amendment No. 37. I share my noble friend's views on Amendment No. 37.
§ Lord McIntosh of Haringey
Perhaps I may put the noble Lords, Lord Carlisle and Lord Thomas, out of their misery. They were speculating about what kind of behaviour would be classified as reaching the minimum standard or exceeding the minimum standard. Well, Notes on Clauses gives some examples. For the sake of brevity, I shall give examples only of behaviour which might exceed the prescribed minimum standards. Subsection (3) of the notes on Clause 10 refers to,participating constructively in sentence planning (if available); effort and productivity in workshops"—I do not know what proportion of prisoners are in workshops but there must be a substantial number who are not. Therefore, the words "if available" or "if relevant" ought to be added,(where appropriate and available) participating constructively in courses on addressing offending behaviour or in educational or vocational training courses".Finally, we have,promoting positive relationships between staff and prisoners".The examples given by the Government in their Notes on Clauses reinforce the point that noble Lords have made. It is virtually impossible to imagine how one could have consistent, fair, acceptable and accepted standards which could be applied across the range of types of prison and prisoner. Fears expressed by Members of the Committee about the opportunity—indeed, the likelihood—of disruption and disaffection must be very much in the forefront of our minds.
I support what the noble Lord, Lord Carlisle, said about a target release date. I do not know how many Members of the Committee underwent peacetime conscription—that is, peacetime national service—but, when I was a gunner in the Royal Artillery as a conscript, the only thing that kept me going was being able to say:
It is terribly important that people should have that protection, that target; and, indeed, that they should know that their behaviour will contribute to whether or not that target is reached. A target date is of enormous psychological importance.
- "Only 121 days to do,
- That's a lot less than you,
- Get some more in!"
§ The Lord Bishop of Lincoln
Perhaps I may express my concern regarding the last point made by then noble Lord, Lord McIntosh, about the uncertainty over the ever-changing release dates. How are probation officers and prisoner resettlement organisations expected to make sensible plans for released prisoners as regards hostel places, local authority housing, housing 612 association accommodation, job training schemes, and so on, if they cannot tell when the prisoner will be released until such release is imminent? Those difficulties would be avoided or greatly reduced if prisoners were eligible for a fixed amount of early release, unless of course they lost it through the disciplinary system following misbehaviour in prison. That is a very important point.
§ The Earl of Mar and Kellie
Can the Committee be assured that the minimum prescribed standards in a prison are that you comply with the prison rules and that the test of whether or not you have done so is the fact that you have not appeared before the governor on report?
The Earl of Balfour
I should like to raise one further question about the word "prescribed". Clause 23 says that "prescribed",means prescribed by prison rules".Having read that, I looked up the prison rules within Section 47 of the Prison Act 1942, but I could not find the word "prescribed" anywhere. However, it is possible that I have not read the most recent edition of that section which is mentioned in Clause 23.
§ Earl Russell
I am sorry to prolong the discussion but I am afraid that we have not exhausted the evils of the proposals contained in the Bill. On Second Reading, the noble and learned Lord, Lord Bingham of Cornhill, said that he believed that the proposals would prove incapable of fair operation and that they would give rise to a flood of appeals. There are many good reasons why that is so. It is a basic principle of English law that any exercise of public authority is subject to the rules of natural justice. That has been the case for a very long time.
Under the present procedure there is a date for release unless a disciplinary offence is committed which justifies its postponement. In dealing with any such offence, there is an orderly procedure. The procedure is laid down, the evidence is presented, the prisoner is given an opportunity to challenge it, reasons are given for the governor's decision and a record of the proceedings is made. That is a fairly precise outline of the basic minimum requirements of natural justice. It will be a great deal harder under the new and more discretionary system.
Perhaps I may take the Minister's analogy of a teacher. The effect of what is happening is very much as if we were to move from a formal examination to a system of continuous assessment. In a system of continuous assessment, the decisions which affect the ultimate class are taken at a very much lower level and on a very much more daily basis. Therefore, the range of situations in which an abuse of power may take place is very much wider. It is sadly true that charges of sexual harassment are very much more part of daily existence in an American University than is the case in a British one. I do not believe that that is because Americans are more libidinous than the British. I believe 613 that it is because the power to affect the final grade is more constantly available to an individual professor, or even an individual teaching assistant at quite a low level.
It is this devolution down the scale of the power which worries David Roddan of the Prison Governors Association. He is surely right that the work will have to be pushed down the line, possibly to the level of wing staff. Therefore there will be a big risk of infringing one of the basic requirements of natural justice; namely, that a person should not be judge and party in his own cause.
Let us suppose it is alleged that a person has forfeited some of his early release by being offensive to his warder. The warder, in the end, may be the judge of this matter. If that is not the case, I should be extremely interested to hear the reasons why that is not so because those could be extremely helpful to the Committee. If there are to be these detailed decisions made on daily behaviour, there is surely a risk of them being made by people who are directly affected by the prisoner's conduct. It is not only a flood of appeals that we shall get; it is a flood of judicial reviews as well.
It is my understanding that the Government do not like the growth of judicial review. I can see why; I would not if I were them. But it seems to be the effect of legislation which frees public authority from statutory control that the only remaining controls are the principles of natural justice. That must lead to a growth of judicial review. In my opinion the Government frequently complain of that of which they are themselves the author.
There is also, of course, a problem of favouritism. For me to quote or refer to Sir Ivan Lawrence might be thought to be a case of the devil quoting scripture. But fortunately the rules of order restrain me from quoting him in detail. However, I hope I may be allowed one or two words. He said in another place that there was a real risk of cases in which relations between a prisoner and a warder became over-friendly. The risk of being judge and party in one's own cause is surely obvious.
§ 7 p.m.
§ Lord Williams of Mostyn
Can the Minister help on one practical matter arising out of the detailed questions that the noble Lord, Lord Thomas, asked? Let us consider the situation of a man who is on remand, who behaves to an acceptable standard—rather better than the noble Lord, Lord Thomas, in his domestic circumstances—and who then serves a sentence of six months. Then let us consider a man who serves a prison sentence of 12 months. Is the good behaviour of the man who has behaved well on remand for six months taken into account as regards the overall period that he will serve? If it is not, it seems to me that he will be treated worse than the man who has served no remand time at all. How is that to be adjusted? Is the sentencing judge intended to aim off, as it were, and reduce the overall sentence?
§ Lord Harris of Greenwich
I wish to say a few words on this matter. When I had some responsibility for prisons at the Home Office I had the opportunity to visit the state prisons in the State of Georgia at a time 614 when Mr. Carter was still governor of the state, shortly before he became President. I had the opportunity of looking at their system of creating an alternative to remission by earning what was described as "good time". On my return I discussed that and other matters with officials in the prison department. Their view was that it would be quite impossible to administer a system of this sort, yet this is precisely what we are discussing today, except that the prison population was then 40,000, whereas now it is 60,000 and still rising.
That is the first problem. I refer to the amount of documentation that will be required in terms of a prison officer having to establish whether an inmate has qualified for being treated in a particular fashion. As my noble friend Lord Thomas of Gresford, has pointed out, there will have to be a record. Presumably that will have to be referred to the appellate authority, whoever that may be. Then, inevitably, there will be a flood of judicial review applications. That is quite inevitable. We should recognise that from the outset.
Last Thursday we had a brief exchange with the noble Baroness, Lady Blatch, during which I believe she referred to tensions in the prison system. There are plenty of tensions but they will be as nothing compared with the tensions which will exist in the prison system if this system is introduced. One can see only too clearly what will happen. Perhaps the noble Baroness, Lady Blatch, will not be a Minister when the problem arises.
However, some unfortunate Home Secretary and junior Minister in the future will be faced with the prospect of serious disturbances in prisons because of the amount of ill will and suspicion that has been engendered as a result of the introduction of this system. Then, no doubt, a judge will be approached and asked whether he will be good enough to investigate the situation in some form of judicial inquiry, as was the noble and learned Lord, Lord Woolf, after the disturbances at Strangeways. We should have no illusions at all about what we are discussing today. We are discussing quite deliberately creating a system which will almost certainly lead to serious new difficulties in our prisons, with the possibility of creating serious disturbances.
§ Baroness Blatch
These amendments seek to remove the requirement that prisoners should earn early release and to substitute automatic awards. All prisoners, whatever their length of sentence, would be entitled to automatic early release at the maximum rate which can be earned under the Bill for good behaviour; that is, 12 days for every two months served.
We have already discussed the principle of automatic release in considering the amendments moved earlier today by the noble Lord, Lord McIntosh. The abolition of automatic release before the end of the term of imprisonment that is imposed by the sentencing court is a key objective of the honesty in sentencing proposals. The proposals put forward by the noble Lord, Lord Thomas of Gresford, to reintroduce automatic release would seriously weaken the provisions in the Bill and would undermine that key objective.
615 The present automatic early release provisions provide no incentive for prisoners to behave well; they merely discourage prisoners from behaving so badly that they are awarded additional days for disciplinary offences. The noble Lord, Lord Harris, will know, with his knowledge of the prison service, that the behaviour has to be pretty serious before days are added to prison sentences. As I say, the level of behaviour that leads to additional days has to be serious. Automatic early release is neither understood, nor supported by the public. That is why we have these proposals in the Bill which provide for prisoners to earn early release. That is why we want the amendments rejected and the government proposals supported.
I know that the noble Lord, Lord Thomas of Gresford, has read the Bill carefully. However, I refer him to Clause 10 (5)(b) where he will find a provision for appeals. I think he said there was no way of appealing. However, there will be a system for appeals. If we were to have no measurement whatsoever for automatic release, why not simply shorten a sentence? It seems to me absurd to have a period of a sentence that will not be served which is not related to behaviour or to anything. To shorten a sentence and to allow the supervision period to start earlier is more honest in terms of what the noble Lord seeks.
The way that the noble Lord, Lord Thomas of Gresford, and others have described the Prison Service is decidedly uncomplimentary to that service. They have implied that those in the service are incapable of distinguishing good behaviour from bad behaviour and that they are incapable of being objective but are subjective. They have implied that people could become "toadies" and staff could get too friendly with prisoners. At the moment there is a system in operation in prisons which is working well and which involves earning privileges. The staff have to make judgments of their prisoners to decide whether the prisoners will receive the privileges or whether they will lose those privileges.
The noble Lord, Lord Thomas of Gresford, and my noble friend Lord Carlisle have overestimated the numbers of assessments. We have worked on the basis of an average of about 50 assessments per establishment per week. I apologise for giving an average figure. As someone who was a corporal about 42 years ago, I consider it rather a class ridden statement for the noble Lord, Lord Thomas, to refer to the warder on the landing as a corporal, speaking from his lofty officer class, as it were. I do not know who would comprise the officer class—perhaps the prisoner governor. I find it surprising in today's world to refer to the warder on the landing as the "corporal". However, I now know my place. Prison officers will receive training. They receive training now. They will be introduced to the assessment systems for early release. They will have clear criteria for assessments. Guidelines and training for staff will be available.
The noble Lord, Lord McIntosh of Haringey, said how difficult it is to tell good behaviour from bad behaviour. He gave some examples, rather disparagingly. Let me give examples of good behaviour: 616 people who obey instructions; those who have an absence of violent or threatening behaviour; people who are not bullies; people who do not intimidate others; those who are not aggressive or do not use offensive language; people who co-operate with staff in the performance of their duties; people who do not interfere with others' property (which is probably a euphemism for stealing); people who comply with mandatory drug-testing provisions; and people who do not use drugs or alcohol. The converse of those examples would represent poor behaviour. With training most prison officers would know the difference between aggressively bad behaviour and good behaviour. They would also know the difference when behaviour is passively good—when the situation is ticking over and the person is neither good nor bad but simply wants to while away the time.
I return to the issue of appeals. The person to whom appeals can be taken against decisions on early release will be prescribed in prison rules. The word "prescribed" will not be in the prison rules. The system and the person to whom the appeal will be made will be prescribed in the prison rules. An internal appellate procedure is envisaged. There will be consultation on that. There is no question of appealing to the same person who made the determination in the first place. We envisage two levels of appeal: one with the governing governor and one with the Prison Service headquarters; and prisoners will also be free, as at present, to refer cases to the prison ombudsman. The Inspector of Prisons is keeping a fairly impressive downward pressure on prisons to ensure that systems in place work well and that they are working in the interests of the welfare of the prisoner.
As regards the idea that everyone will rush off to a tribunal, first, no one will act in isolation. The "corporal"—as the noble Lord, Lord Thomas, would have him—on the cells would not be the judge and the jury. The noble Earl, Lord Russell, referred to the one person in isolation acting as judge and jury. That would not be the case. The prison officer looking after the prisoners on the cells, the educators in the education block, the trainers in the training block, those in workshops and the supervisors of gangs working on external projects will all have an input, as indeed they do now; they produce behavioural reports. The probation officer and the voluntary sector working with prisoners in prison are all part of the present system of managing prisoners in prison.
Reference was made by the noble Lord, Lord Thomas, to no fixed release date. The prisoner will know exactly when he will be released—after serving five-sixths of the sentence if he behaves well. If he does not behave well, he knows that he will serve the whole of the sentence. If the prisoner wishes to be released earlier, that will provide the best possible incentive to behave well.
The noble Lord, Lord Thomas, said that prisoners need to know the date so that they can prepare for their release. I agree with that. The noble Lord is quite right. The noble Lord's arrangements create a shorter sentence. But prisoners will know their release date. 617 There is no difference between us. Knowing their release date is very much part of the proposals that we put before the Committee.
My noble friend Lord Carlisle claimed that early release will tear prisons apart. I do not know how he comes to that conclusion. As I have said time and again, prisons already have good experience of assessing prisoners and privileges. The scheme now in place has not torn prisons apart. It has been welcomed by many of the staff and accepted by the prisoners. One of the great spin-offs is that the level of behaviour is being modified as a result.
I say again that I find it deeply depressing that no one is giving the Prison Service the credit for doing the job objectively and well. It performs its assessment task of prison behaviour under the earned privileges scheme well. 1 pay tribute to that.
§ Lord Ackner
Before the noble Baroness sits down, can she tell the Committee whether the prison governors were consulted about the wisdom of the proposals? If they were, what were their views?
§ 7.15 p.m.
§ Baroness Blatch
Yes. I think that the noble and learned Lord knows that they were consulted. The White Paper went to all interested parties. It is no secret that they were concerned about the operation of this proposal. I have already stated in responding to the amendments that we shall consult with them on the details and the implementation of the scheme and how it will work. That will be set out in prison rules, upon which they will also be consulted when those rules are in draft.
§ Lord Ackner
Will the Minister tell us the substance of their concern? What were the reasons which, according to them, gave rise to their concern?
§ Baroness Blatch
If the noble and learned Lord will forgive me, we always treat responses to consultation as confidential to us. It will be a matter for the prison officers. If I find that I can talk to the noble and learned Lord about it, I shall certainly do so. But it is no secret that prison officers have expressed concern. Indeed, there are noble Lords in this Committee who know that they have expressed concerns. If I can be more explicit with the noble and learned Lord, I shall. However, he has to understand that it was a response to consultation and we do not make public those responses unless the person who has responded to us allows us to do so.
§ Lord Harris of Greenwich
On that basis, will the noble Baroness undertake to ask the Prison Governors' Association whether it would agree that a copy of its representations be placed in the Library of the House? If she will give that undertaking, it will reassure many of us.
§ Baroness Blatch
The noble Lord is well able to do that himself. Perhaps I may say to him that he does not have to come through a third person in order to receive 618 the consultation response made by the Prison Governors' Association. If the noble Lord wants it, I suggest that he asks the association direct.
§ Lord Harris of Greenwich
The noble Baroness must not try to evade answering simple, clear, straightforward questions. She made a great issue of saying that the responses are confidential unless the person making the representation to the Home Office agrees to make the position public. The noble Baroness is in the position of having to justify this Bill. It is not for us to do so. The onus of proof is upon her to demonstrate the rightness of the Government's position. In relation to the answer she gave to the noble and learned Lord, Lord Ackner, we merely ask that, with the major resources available to her within a great department of state, she asks the prison governors whether they will agree that their representation to the Home Secretary be placed in the Library of this House.
§ Baroness Blatch
These provisions will not come in for some time. I have made it absolutely clear to the whole House, and to the Committee, that the details of a scheme will be set out in prison rules. In draft form, there will be consultation about the scheme. We shall certainly do that at that time. We are not in a position to do so now. If the noble Lord wants the answer quickly, it will take a postcard and a 26p stamp simply to ask those who responded to the consultation whether they would like to make their response available.
The Home Office does not intend to be a third party for the myriad of people who can come to us. The noble Lord is well able to request that the response to the Home Office be made public.
§ Lord Thomas of Gresford
At a time when the Minister proposes a major change to the existing situation, the onus is upon her to establish the need for that change. I adopt what the noble Lord, Lord Carlisle, said earlier: if it is working, do not change it. Since 1991 when the Criminal Justice Act was introduced by the noble Baroness's own Government, we have avoided, thank God, serious rioting in the prisons of this country. We have done so for a number of reasons, but largely because the recommendations of the Carlisle Committee were accepted and implemented, and have been shown to work. If they are to be changed and a new and radical system is to be put in place, there is a serious obligation on this Government, before they finally depart, not to leave problems behind for a future government to have to resolve in the way described.
I am intrigued by two pictures that arise from the Minister's response. One is of her as a corporal standing in front of her barrack block telling the squaddies that their free time was to be taken up by punishments that she had invented for them and they were not to be allowed out into the town that night or on any night for a week. I wonder how long she would have retained her authority had she acted in that way. It is a picture that I leave with great regret. The second picture I have in 619 mind is of the mountains of paper—I know that the noble Baroness wishes to give us more of her experiences.
§ Baroness Blatch
If I may put the noble Lord out of his misery, it happened quite commonly that as a punishment we were not allowed out into the town. We just took it like boys and girls at the time.
§ Lord Thomas of Gresford
The point is, was it the noble Baroness the Minister, foreseeing her future, who told those in her squad that they could not go out on the town; or was it some higher authority? That is the picture that I have in my mind.
The second picture is of the mountains of paper that would be engendered by all the agencies within the prison to whom she referred. It is not simply to be the warder on the landing; it is to be the head of the various working stations throughout the prison, presumably the cookhouse or wherever a person has the opportunity of working. All those reports are to come in and be sifted, and presumably discussed, and decisions are to be made by the prescribed person in 60,000 cases every two months, with appeals to follow.
I am not satisfied with the replies that the Minister gave. Although I seek leave to withdraw the amendment, we shall return to it at a later stage.
Amendment, by leave, withdrawn.
Lord Belstead had given notice of his intention to move Amendment No. 38:
Page 6, line 19, leave out ("two months") and insert ("one month").
§ The noble Lord said: This amendment was intended to probe very much the same areas that have been probed at quite considerable length already. I do not seek to move it.
§ [Amendment No. 38 not moved.]
§ [Amendments Nos. 39 and 40 not moved.]
Lord Belstead moved Amendment No. 41:
Page 6, line 20, leave out ("the prescribed person") and insert ("a governor grade of the Prison Service").
§ The noble Lord said: In moving this amendment I shall also speak to Amendment No. 42.
§ In each of these amendments "the prescribed person" is the person who may award a prisoner up to 12 days of early release, first in the initial assessment period for attaining the prescribed minimum standard of behaviour, and then in each two-month subsequent assessment period when the person can get six days' early release for "attaining" and six days for "exceeding" the prescribed minimum standard. The effect of these two amendments is to spell out that the prescribed person is to be a governor grade of the Prison Service.
§ Perhaps I may say just one word of explanation. At the moment, the report which is found in a parole dossier called "The Prison Assessment for the Parole Board"—which consists of 33 boxes each giving room for a brief report—is generally compiled by the 620 prisoner's personal officer and is countersigned by a governor. In an instruction to governors sent out on 16th November last year, governors countersigning were required to monitor the standards of reporting in the Prison Assessment for the Parole Board.
§ The "PPA" is a vital document for parole assessment purposes; but it is not a decision giving document. It is read by a panel of the Parole Board which either decides on early release or, in cases of seven years and over, recommends to the Home Secretary how he shall decide on release.
§ But Clause 10 of the Bill is concerned with decision-making. In these two amendments we are talking about the person who will decide whether a prisoner is to be awarded early release days and it is not unreasonable to expect that this decision, taken early on, may set the course of a prisoner's hopes for remission for some time to come. It is also crucial in terms of public confidence that the assessment of behaviour is accurate and fair. It therefore seems very important that a governor grade has a responsibility in the decision-making process in Clause 10 for the award of early release days. I beg to move.
§ Baroness Blatch
It is quite likely that, in practice, it will be a governor grade who awards early release. But there may well be other people in the prison whom it is appropriate, and on occasion even necessary, to prescribe as being empowered to award early release days.
I am not talking here about the prison officer on the wing who is in regular day-to-day contact with the prisoner. This officer will not be taking the final decision on early release. I am talking about one of the senior members of staff in an establishment, whose job it might be to consider a number of assessments of a prisoner's behaviour over an assessment period and to come to a reasoned judgment as to how many early release days that behaviour has earned. We have the excellent example of the earned privileges scheme already operating in prisons which demonstrates that an assessment procedure can work successfully. That must be an encouraging precedent.
We must not forget the consequences to a prisoner of delay in awarding earned early release, which has a direct effect on his or her release date. There must be adequate machinery in place to provide for staff to be available to make these awards. If, for example, all governor grades were fully occupied in dealing with a protracted operational emergency it could be quite proper for another senior designated member of staff in the establishment to award early release.
The Bill leaves this possibility open, and intentionally so. Before drafting the prison rules which will set out exactly who the prescribed person is to be, there will he full consultation with operational staff to decide whom it is sensible to include. Before that point, we would not want to rule out the possibility of senior members of staff in an establishment who are not of governor grade awarding early release. There are people in the Prison Service who are acting governors at any given time and, for 621 example, there would be the flexibility of being able to use those people. I should add that prison rules which will prescribe this person will be laid before this House and another place before coming into operation.
I take entirely the point that my noble friend makes. It is intended that the decision should be taken by very senior staff indeed. However, we want just an amount of flexibility so that emergencies can be coped with; and/or, as I say, an acting governor grade could, if appropriate, be used.
§ Lord Carlisle of Bucklow
Before my noble friend sits down, I apologise to her, but might I ask a question? She was good enough, in answer to an earlier point, to answer the question I raised about the number of likely assessments, which she said she thought I had grossly exaggerated. She gave a figure which I am afraid I missed. Is it possible to be told what that figure was?
§ Baroness Blatch
If one assumes everybody—I have to qualify that with a caveat about completing the work on re-examining longer-term prisoners; there are also those who are on two-month sentences and below who I believe represent about a quarter of the intake and movements in and out of prison in the course of a year. We think that about 26,000 assessments would be required per month. That would average out at about 50 per establishment.
§ Lord Belstead
It is my intention to withdraw the amendment. I merely say that what arises from the Minister's reply is the need for validation by a governor grade of the different steps that will be taken in seeing that assessments are made in a fair and equitable manner. I very much hope that that point will be taken into account so far as the rules are concerned.
I do apologise; I do not hear as well as I used to and this is an important point. Could the Minister repeat the figure she gave? How many cases are we talking about that will go through the whole prison system of England and Wales over a two-month period for assessment for behaviour?
§ Baroness Blatch
Again, repeating the caveat, in the absence of, or in advance of, making any changes to the schemes to which we referred earlier today as a result of my remarks on Clause 7, and also remembering that those sentences of two months or less are not included in the scheme, we reckon about 26,000 for each month. That represents about 50 assessments per month as an average for each institution across the whole prison estate.
§ Lord Belstead
Am I being very dim? I simply do not understand what the Minister is saying. How can 26,000 give rise to a figure of 50?
§ Baroness Blatch
Fifty assessments per prison institution, but 26,000 per month across the whole estate.
§ Lord Belstead
So is there some strange difference between a month and two months? The assessments are to be made every two months. I do apologise—I am being 622 difficult, I know, but I genuinely want to know. How many assessments are to be made at every two-months' stopping-off point?
§ Baroness Blatch
Assessments will have to be made every month for some prisoners. At the end of every calendar month it will be necessary to do the assessment for those for whom that will be the end of a two-month period. At the end of each month there will be an assessment. I have therefore worked on the basis of how many assessments will need to be undertaken each month by the prison establishment.
§ Lord Belstead
I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 42 to 45 not moved.]
§ Baroness Blatch
I rise to make a correction. My noble friend was right to look slightly confused about the figures I gave him earlier. The 26,000 is absolutely right: that is the figure that I assumed for the purpose of answering my noble friend's question. The 50 per prison establishment was a weekly figure.
The Earl of Courtown
I beg to move that the House do now resume. I suggest that the Committee stage begin again not before half past eight.
Moved accordingly, and, on Question, Motion agreed to.