§ House again in Committee on Clause 10.
Lord Belstead moved Amendment No. 46:
Page 6, line 43, leave out ("to prescribed persons").
§ The noble Lord said: This amendment concerns appeals against determinations as to early days of release. That has been gone over to some extent already so I shall be as brief as I can. When, under Clause 10(5), decisions are given to persons as to whether or not they have been awarded any early days of release, prisoners may appeal to prescribed persons, and the effect of this amendment is to leave out the reference to "prescribed persons" simply with a view to asking the Government to explain who the prescribed persons are to be.
§ Perhaps I may flesh that out a little. I ask that because obviously there will be some sensitivity if the award of early release days is to be decided by prison staff, a matter referred to by the noble and learned Lord, Lord Bingham, on Second Reading, and referred to earlier in the Committee today. To have prison officers who are responsible for the custody and care of prisoners being responsible for decisions as to the award of early days could put prison staff in a difficult position in relation to allegations by disappointed persons. That is why, when the parole system was set up, the first chairman, the noble Lord, Lord Hunt, made very clear the independence of the board as regards decision-making. That tradition has been handed on from one chairman to 634 another. The noble Lord, Lord Hunt, used to take the Parole Board off to the different livery company halls in London. The meetings were held there in rather the same way as the Scottish board does today. That was to show the independence of the Parole Board.
§ It goes without saying that when, today, the board holds hearings—in other words, discretionary lifer panels—the independent position of that panel in hearing evidence from the prisoner, his legal representative and witnesses, and evidence from the Prison Service and sometimes other witnesses is made perfectly plain. I wonder whether the Government have taken on board that point in deciding who the prescribed persons are to be who will hear appeals from prisoners and how those appeals are to be made—either in writing or at an appeals hearing. Therefore, that is why I wish to move the amendment, although some of the ground was covered earlier. I beg to move.
§ The Earl of Mar and Kellie
I am sorry to come back to this but the words "prescribed persons" cause me to reflect on the fact that I do not believe that we ever sorted out what a prescribed minimum standard of behaviour was. The word "prescribed" appears in both. I suggested that the prescribed minimum standard was in fact a negative. It was not appearing before the governor on report. I am very anxious to establish a baseline so that we can see how the first six days in a two-month period will be allocated. Once that is done, we can then see above which line we are trying to allocate the second six days in the two-month period. If it is difficult to sell this programme to the Committee, it will be even more difficult to sell it to the prisons.
§ Baroness Blatch
The noble Earl, Lord Mar and Kellie, makes an important point. There will need to be some guidance for prison officers who are engaged in the assessment of behaviour. Therefore, we should expect that to be addressed as part of the prison rules to prison officers. I am not able to be absolutely specific. The noble Lord, Lord McIntosh, gave examples of proactive bad behaviour and I have given some examples of what would be good behaviour. However, important though the point is, this amendment is about who should be the members of the appellate body and whether it should be prescribed.
As my noble friend said, the amendment seeks to change the power in the Bill to make prison rules enabling prisoners who are dissatisfied with awards of earned days of release to appeal against such a decision. There is nothing between us on this point. The Bill makes provision for such appeals to be to "prescribed persons". The amendment leaves the appellate authority at large on the face of the Bill, although the rules would no doubt still make it clear to whom prisoners might appeal. Therefore, I cannot see a great deal of difference between the two approaches and there is certainly no advantage in my noble friend's proposal.
There will be full consultation with prison governors and others before proposing any appeals arrangements for inclusion in prison rules. At present, we envisage a system internal to the Prison Service. We have certainly taken on board the points made about the level of 635 bureaucracy and the diversion of prison officers from other work. Those will be very important factors in any system. The noble Earl is probably experienced and knows of the systems which already operate in prisons concerning prisoners' behaviour for other reasons. It is impossible to divorce the training shops, the educational services, gang supervisors and so on from the good order of the prison. Therefore, there will be systems in place and we shall want to build on those, and not make them over-bureaucratic. The first point of appeal could be to the governor in charge of the prison, with a second appeal point in the headquarters of the Prison Service, which would be independent of the prison. Prisoners still dissatisfied could ask the Prisons Ombudsman to carry out an independent review of the case and he would make any recommendations that he thought proper to the Director General of the Prison Service.
Prisoners would also be free to seek the external remedies of judicial review and investigation by the Parliamentary Commissioner for Administration. But we would expect that to happen only when all the internal processes had been exhausted. There is nothing between us on this issue. This will be a matter for very full consultation and I hope that my noble friend is able to accept that explanation.
§ Lord Belstead
I am grateful to my noble friend for that clarification. I wish to make just one point before withdrawing the amendment. My noble friend referred to the process of judicial review. I do not know very much about that but I know that there are usually about half-a-dozen judicial reviews on the go in one way or another as regards the Prison Service and the Parole Board. That is an real factor in the daily life of an organisation which is liable to judicial review. It was with judicial review in mind that I asked some of the questions that I did. The procedures will be extremely important if the Prison Service is not going to be extremely vulnerable to judicial review. I am sure that the Prison Service will understand that and has time to take account of what the procedures will be. Nevertheless, I give that warning. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Earl Russell moved Amendment No. 47:
Page 6, line 44, leave out subsection (6).
§ The noble Earl said: This amendment seeks to delete Clause 10(6). That is a Henry VIII clause giving the Minister power by order to alter primary legislation. It has not caused particular concern to the Delegated Powers Scrutiny Committee, whose report I have here. It should be a routine matter that this Chamber should probe the reasons why a Henry VIII clause appears in a particular Bill. Therefore, to save the time of the Committee and perhaps to avoid unnecessary debate, I shall ask my routine question: is your Henry VIII clause really necessary? I shall conduct such further debate as the answer seems to require. I beg to move.
§ Baroness Blatch
Having sat on the joint Committee for some time, I am well aware that if Henry VIII clauses are to be used, the Government should be challenged on 636 the importance of using them. The noble Earl will be aware that the Scrutiny Committee has already looked at the Bill with a view to seeing whether there is any abuse of power or whether the House should be invited to consider the proper use of power and question it in debate. There is a temptation to accept the amendment of the noble Earl and leave out the subsection. However, I hope that when I have explained why it is there, the noble Earl will accept that there is very good reason for its inclusion.
The noble Earl seeks to remove the power in the Bill for the Secretary of State to vary by order the number of early release days that prisoners may earn. The Bill allows for amendments to be made only in the prisoner's favour. It is not possible to use this power in any other way. For example, there is no power to reduce the number of days that may be earned. Therefore, I find it quite difficult to see any objection to its inclusion. It was thought that if when the system was up and running a future government or Home Secretary believed that it was worth recommending that the number of days available for early release should be increased, instead of altering primary legislation, the primary power would be there to be used. But the power cannot be used to reduce the number of days. The noble Earl is right to question the inclusion of a Henry VIII power in a Bill.
§ Earl Russell
I thank the noble Baroness for a very fair reply. She said very much what I expected she would say. She makes the perfectly fair point that the use of this power can only be beneficial. I am very glad that I have heard that said. However, I can imagine circumstances in which a future Parliament may object very strongly even to the use of beneficial powers in this respect if there were to be a demand for even longer sentences than are being considered already. That could cause concern. Nowadays, we see a good many of these clauses. That may give rise to an issue. I do not believe that the point for making an issue is here, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 48 to 50 not moved.]
Clause 10 agreed to.
[Amendment No. 51 not moved.]
Clause 11 agreed to.
Clause 12 [Provisional awards for remand prisoners]:
[Amendments Nos. 52 to 54 had been withdrawn from the Marshalled List.]
Clause 12 agreed to.
Clause 13 [Release supervision orders]:
Lord Belstead had given notice of his intention to move Amendment No. 55:
Page 8, line 45, leave out from ("released") to end of line 46 insert ("under section 10").
§ The noble Lord said: I spoke to Amendment No. 55 with Amendment No. 36, which was withdrawn.
§ [Amendment No. 55 not moved.]637
Lord Belstead moved Amendment No. 56:
Page 9, line 27, leave out from ("any") to end of line 29 and insert ("conditions.").
§ The noble Lord said: I beg to move Amendment No. 56. In subsection (4) on page 9 the Bill provides for the Parole Board to be involved in the holding of oral hearings at which prisoners can be heard or represented in order to decide whether a recommendation shall be made to the Secretary of State that the prisoner shall have a hostel condition or a curfew order condition specified in the prisoner's release supervision order. The effect of this amendment is to make the Parole Board responsible for recommending to the Secretary of State any conditions which should be specified for release supervision orders.
§ I say in passing that perhaps I am not being wholly genuine in putting forward the matter on that basis. This would probably make for an almost impossible situation, but it is a convenient peg on which to hang what is in effect a probing amendment. I believe that it is nonetheless an important probing amendment from the point of view of administration of the Parole Board. I ask my noble friend the Minister the reason for the subsection. First, is there a special reason for requiring Parole Board intervention to recommend hostel or curfew order conditions? If so, does that special reason apply only to those two types of supervision condition? What about offence-focused work conditions? What about psychiatric or psychological oversight and treatment conditions? What about conditions not to enter a given geographical area? What about non-contact conditions which are very important for the protection of victims? What about so many of the essential conditions that are imposed on paedophiles?
§ Secondly, how will subsection (4) work in practice? I am now speaking about the Bill as drafted. I have been discourteous. My noble friend has given me important assurances as to how parole will be injected into the Bill. However, under the Bill as drafted the Parole Board will have had nothing whatever to do with a fixed-term sentenced prisoner who is about to have a release supervision order made. The Parole Board will go into an oral hearing "cold", as it were. In those circumstances will the prisoner have a dossier of reports? If so, who will have written those reports?
§ How is the Parole Board to be interpreted under subsection (4)? Is it to be a panel of the board and, if so, how many members will it comprise? In that context, have the Government given any thought to the cost of the provision and the time needed to set up these panels from a much smaller board? That is an important point. One comes to a particular moment in the process of review, in this case the review for early days of release. At an earlier point in the Bill reference is made to letting prisoners know at a prescribed time. It is important that the whole matter does not slip. If it will take quite a long time to set this up, things will slip.
§ Thirdly, the Secretary of State is to make rules for regulating the supervision of prisoners. Presumably, those rules will contain guidance as to the criteria for specifying a hostel or a curfew order condition. Have the Government given any thought to those criteria? I remind your Lordships that a prisoner who is released 638 early will have been awarded early release days on grounds solely of good behaviour. It would seem rather strange if the criteria for a hostel or curfew order condition on release were to reduce the risk to the public. How is that apparent contradiction to be resolved?
§ I do not ask for answers to all these questions this evening. If my noble friend writes to me, I shall be only too pleased. These questions may appear to be a rather grudging response to the need for the Parole Board to become involved in specifying release supervision order conditions for hostels and curfew orders, but at the moment I believe that my list of questions shows that the position is not entirely clear, at least not to me, hence the amendment. I beg to move.
§ 8.45 p.m.
§ Baroness Blatch
My noble friend is right. We are speaking in a vacuum in advance of any consideration of the matters that concern my noble friend and on which I have given him assurances. Given that caveat, one of the reasons why we believe that the Parole Board should be involved in commitments to bail and/or curfew orders is that both orders involve a restriction on liberty. We believe that there should be Parole Board involvement in something that restricts liberty. The Bill provides for the Secretary of State to set the conditions of supervision. In practice, this will be done by the prison governor acting on behalf of the Secretary of State, exactly as happens now in the case of short term offenders. We are discussing longer-term offenders between now and Report stage. But there are a number of standard conditions such as the need to maintain contact with the supervising probation officer, a requirement to live only where approved by that officer and a requirement to take only such employment as is similarly approved. Where necessary, additional improvements may be included which may for example require the offender to attend a treatment programme to address his offending behaviour or to live at a specific address such as a family home.
Decisions as to the inclusion of such additional conditions are made on the recommendation of the supervising probation service which will have conducted a thorough risk assessment, together with information obtained during the offender's time in custody. Relevant information will include his behaviour in prison, attitude to the offence committed and his home circumstances. This is the type of information which is considered now by the Parole Board in the case of long-term offenders who are being considered for discretionary release. When the Parole Board will not be involved in the decision to release an offender, I see no value in its routine involvement in the setting of conditions. I do not know whether my noble friend has even contemplated the volume of work that would be involved if the Parole Board moved into the area of the 90 per cent. of prisoners who received sentences below four years. This can be done efficiently and properly by the prison governor on the recommendation of the probation service, taking into account the principal aims of supervision: protection of the public, prevention of re-offending and the 639 rehabilitation of the offender. If the board were to become the body responsible for setting conditions of supervision for all offenders sentenced to 12 months or more, it would face a substantial increase in the volume of cases dealt with. Let us not forget that currently the board deals only with cases involving offenders sentenced to four years or more. If it were to set conditions for all offenders sentenced to 12 months or more its workload could increase fourfold. I do not see how the board could be expected to do so much. There is a limit to the number of oral hearings that could be dealt with in a day. The board will also have, in the longer term, to deal with more life sentence prisoners in the light of Clause 1 of the Bill.
There is, however, still to be a Parole Board involvement in the setting of the two conditions mentioned by my noble friend: the requirement to live in an approved hostel and the imposition of a curfew order. The reason for this is straightforward. Both conditions involve a significant loss of liberty on the part of the offender and it is only right and proper that an independent body makes the recommendation to the Secretary of State that they should apply. The board will make their decision on the basis of recommendations from the supervising probation service which will have considered the need for such conditions as part of the on-going risk assessment process inherent in sentence planning. The primary consideration will, as always, be the need to protect the public.
The Bill allows for appropriate conditions of supervision to be set in the interests of the public and the offender; the involvement of the Parole Board would not add to this protection and would involve an impossible burden of work. Only in the specific areas of curfew orders and probation hostels is it right for the Secretary of State to have the recommendation of the board.
For these reasons, I hope that my noble friend will not press the amendment. But I end yet again with the promise that everything I have said is in advance of any consideration that we will have between now and Report stage on the whole issue of assessment of risk before the release of long-term prisoners.
§ Lord McIntosh of Haringey
I understand the point the Minister is making about the workload of the Parole Board and the vast number of cases that would occur for offenders with sentences between 12 months and four years. That seems to me to be a reasonable case. I am puzzled by what she said about loss of liberty, however. Of course, a probation hostel involves complete loss of liberty in that sense. But why is a curfew order more of a loss of liberty than being directed to live somewhere other than in an approved probation hostel, for example?
§ Baroness Blatch
If somebody is subject to a curfew order, they are actually quite literally curfewed to a particular home. It may be their family home or another home, but they are not allowed to move from that place. If somebody is allowed to live at another address, perhaps away from where they originally committed the 640 crime, they can come, they can go, they can move around, they can go and meet their friends, but a curfew is quite specifically keeping somebody at home. Usually the most modern method of operating a curfew order is by electronic tagging. A person subject to a curfew order is curfewed to a particular address and for the period of time that the curfew order applies—at the moment it is up to 12 hours in any one day and up to a maximum of six months—the person simply cannot move away from that place to which they are curfewed.
§ Lord Belstead
This is something we can pursue subsequently. I am grateful to the noble Lord, Lord McIntosh, for intervening because it is of importance so far as the Parole Board is concerned. First of all, I am guilty of making it seem as though the objective of the amendment was to extend the remit of the Parole Board to all conditions, because that is the effect of the amendment. However, as I said when I was first speaking, it is only used as a peg by me in order to probe what the subsection of this clause really means. I hope that my noble friend Lady Blatch will forgive me for leading her along that road; that was not my intention, although she and her officials were not to know that.
Having said that, the whole pith and kernel of what we are talking about is the fact that this is a restriction of liberty, the point on to which the noble Lord, Lord McIntosh, has latched. Thinking this through for a moment, taking the remarks of the Minister at face value, because it is a restriction of liberty the Government want to be extra careful. I am not sure of whom they are being extra careful.
Before I withdraw the amendment, perhaps my noble friend would like to explain to me of whom it is we need to be extra careful. If there is somebody of whom we need to be extra careful because of a restriction of liberty, presumably we have to make sure that the procedures are absolutely A.1, that the people who are going to do this work—it is to be the Parole Board—will have the right reports.
I do not gainsay what my noble friend said about sentence planning. But the report which allows one to decide finally as to what conditions should be so far as release is concerned is the parole assessment report, which used to be called the old home circumstances report from the field or home probation officer. That is a report which sometimes, because of pressure of work, can come quite late. It may be that under a new regime the probation services of Great Britain are not going to be quite so keen to do the reports at all because they are extremely expensive. To start sending someone from the Inner London Probation Service up to a prison in Cumbria or Northumbria would be very expensive indeed. It will be necessary, before we get to that stage, to make it clear that the parole assessment reports are extremely important.
Having made the point that the paperwork has to be there, there is then a time factor. Without speaking too long about it, there comes a moment in the procedures before the prisoner is told how early he or she can be released when one has to make sure that the whole procedure does not slip. Presumably, this is going to 641 mean getting a panel of the Parole Board together to hold the hearing. I remind my noble friend that if there is to be legal representation, which apparently there is to be, of the prisoner, these oral hearings will be quite tough assignments.
I am suspicious. I do not believe that I am an ungenerous character, but I am suspicious of this provision in the Bill. I have always been suspicious of it ever since I saw it. The Minister, persuasive though she always is, has not allayed my suspicions entirely.
§ Baroness Blatch
I find it something of an irony that, if the Government had proposed that they could authorise as a condition of supervision a curfew order and/or hostel accommodation, somebody somewhere would have put an amendment down to this Bill saying, "This involves a restriction of liberty and there ought to be an independent view about whether that is the right thing to be doing".
Further, the Government have literally singled out these two issues. There is nothing suspicious about it. The Government believe that, because it involves a restriction of liberty, the valuable assistance of the Parole Board in giving an independent view to those doing the assessment as to whether it believes that it is appropriate for that person should be sought, just as now the Parole Board calls for reports from probation officers and others in order to come to a view about whether a certain aspect is appropriate. My noble friend will know that the conditions are set in advance of release. They have to be set in advance of release and there has to be a good deal of thinking about what those conditions should be. There will be time to do that.
I hope that my noble friend does not think there is anything devious about this. I know he is suspicious but I hope he does not think there is a hidden agenda here. There is absolutely no hidden agenda, but we believe it would be a good thing to have an independent view from the Parole Board.
Clause 13(4) requires an oral hearing before the Parole Board at which the prisoner has the right to appear or to be represented. The conditions in which the subsection applies are onerous and it is right that the offender should have an opportunity to make representations to an independent body before the conditions are imposed. We believe that would be a good thing. There is no more nor less to it than that.
§ Lord Belstead
I assure my noble friend that my suspicions do not extend to there being some form of deviousness. My suspicions relate to whether the proposal will work. I am still worried about that, but I shall not pursue the matter tonight. I am grateful to my noble friend for what she said and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 13 agreed to.
Clause 14 agreed to.
§ 9 p.m.
Lord McIntosh of Haringey moved Amendment No. 57:
After Clause 14, insert the following new clause—
RECALL OF PRISONERS
(".—(1) If recommended to do so by the Parole Board, in the case of a prisoner who has been sentenced to imprisonment for a term of four years or more and in respect of whom a release supervision order is in force, the Secretary of State may revoke his release supervision order and recall him to prison.
(2) The Secretary of State may revoke the release supervision order of any prisoner who has been sentenced to imprisonment for a term of four years or more and recall him to prison without a recommendation by the Parole Board, where it appears to him that it is in the public interest to do so.
(3) A prisoner recalled to prison under subsection (1) or (2) shall on his return to prison be informed of the reasons for his recall and of his right to make representations.
(4) The Secretary of State shall refer to the Parole Board—
- (a) the case of a prisoner recalled under subsection (a) above who makes representations under subsection (3) above; and
- (b) the case of a prisoner recalled under subsection (2) above.
(5) Where on a reference under subsection (4) above the Parole Board directs the immediate release of a prisoner under this section, the Secretary of State shall give effect to the direction and shall release him subject to his release supervision order.
(6) On the revocation of the release supervision order of any prisoner under this section, he shall be liable to be detained under his sentence and, if at large, shall be deemed to he unlawfully at large.").
§ The noble Lord said: I first referred to the amendment during our debate on the long list of amendments introduced by the noble Lord, Lord Belstead. I did so because a number of his amendments addressed the issue of recall and I did not believe that it was appropriate to debate them without flagging up the fact there are still major problems with recall, some of which are addressed by my amendment.
§ Perhaps without repeating the arguments in full I may recapitulate on what the amendment will achieve. It provides that we should continue the procedure whereby the Parole Board can organise the recall to prison of a prisoner released under a post-release supervision order from a sentence of four years or more. It also provides that in a case of extreme urgency the Secretary of State may order a recall when it is not practicable for the Parole Board to consider the case first.
§ The current system of parole is streamline. It provides that on the recommendation of the supervising probation officer the Parole Board can quickly recall the parolee to prison when his behaviour suggests that he is at risk of serious re- offending. Perhaps in referring to the amendment previously I was too ready to talk about breaches of the conditions of the post-release supervision order. However, other Members of the Committee referred to the need to recall someone to prison even when there had been no overt breach of the post-release supervision order but when his behaviour indicated, for example, a likelihood that he would continue with the same behaviour which had brought about the sentence in the first place. Therefore, if we are to achieve our shared objective of protecting the public and avoiding re-offending, it is extremely important that 643 the supervising probation officer has a wide range of discretion of recommending to the Parole Board that a recall should be made.
§ I went on to explain that that is a reasonably quick procedure because the Parole Board meets every day and can and does give priority to recall cases. Those decisions can be acted upon immediately. However, in case it should be thought that there are people who might slip through the net, the amendment provides that the Home Secretary can carry out a recall in advance of a decision of the Parole Board and obtain subsequent justification for that.
The Parole Board, in its comments on Protecting the Public, which it made public, described the procedure and recall by the board as being swift and certain. It stated that the public are better protected than would be the case under the proposed new measures. The Association of Chief Officers of Probation said very much the same thing. It stated:
The replacement of the present system would be a grave error. The present system is quick and effective. It is one of the main features contributing to the effectiveness of parole supervision, allowing as it does for prompt executive action to be initiated at any time of day or night, or at weekends".
It further stated that the court system is incapable of delivering rapid recall and that in its view the proposed change would substantially increase the risk to the public.
§ The Minister intervened, as was her right, and suggested to me that it would be possible for quick action to take place under Clause 14 because in certain circumstances it would be possible for someone to be arrested and held in custody, appearing before the court the following morning. I do not deny that, but it still is not as quick and effective as executive action. Since it involves arrest and a new charge, it could relate only to an arrestable offence. That is a more limited power than that which the Parole Board and the supervising probation officer have at present.
§ I am puzzled as to why in this clause the Government should wish to remove the executive power. It is not as though we are proposing to take away the Government's power to create a new arrestable offence. Clause 14 is already part of the Bill and this new clause is not proposed as a replacement. The only reason I can find for the Government's action was set out by Mr. David Maclean on 10th December when he pointed out that the release supervision order begins when prisoners are released from prison. It is additional to and not part of the prison term. Clearly, I do not have the attention of the Government Front Bench. Perhaps I should pause for a moment or two.
§ His was a technical response and not a response of substance. The fundamental question is whether the Government agree with the merits of the argument that a system of emergency recall is worth retaining. If so, of course further amendments are required. The Government would have to redraft the Bill in order to designate the period of post-release supervision as part of the sentence in order to overcome those objections. Is that so desperate an action to take? Is it so serious a 644 problem in comparison with the increased flexibility and protection for the public which would be provided by the amendment? I think not. I beg to move.
§ The Earl of Mar and Kellie
I believe that we are getting in a slight tangle here. I agree with the noble Lord, Lord McIntosh, that recall would be a useful thing to have but, at the risk of sounding as if I were giving a lecture on an alternative to custody project, it is a separate order. Orders are dealt with by returns to court and, dare I say it, breaches of probation, breaches of community service and breaches of attendance centre orders all end up back in court. Recall was permissible because parole is part of the original sentence. Unfortunately, and perhaps not wisely, the release supervision order is not part of the prison sentence. Therefore, I would argue that you cannot have recall within an order.
§ Lord McIntosh of Haringey
The amendment does not provide a new order; it provides for the revocation of a release supervision order. That is why it does not have to be a new offence.
§ The Earl of Mar and Kellie
Yes, but the release supervision order is an order and not a licence. Therefore, one cannot organise a recall off an order.
§ Lord Belstead
I guess that the issue which has just been debated between the noble Lord and the noble Earl will probably form the basis of at least part of the reply from my noble friend the Minister. I believe that I am guilty of saying this before today but, where a prisoner has finished his sentence, there is the difficulty of him being made subject to an executive recall. Although this may be falling on stony ground because my noble friend made clear her views on the issue in the Committee this afternoon, perhaps I may remind my noble friend the Minister that, subsequent to the assurance that she was good enough to give that parole for long-term prisoners should be written back into the Bill, it will mean that for some months those long-term prisoners who get parole will still not have completed their sentences and could be brought within the scope of the recall procedures, which the noble Lord and I want to see, at least for a period of time.
I am aware that that suggestion probably does not commend itself to my noble friend the Minister, but the reason I say so is that I believe there is enough evidence—and the noble Lord, Lord McIntosh, may have more of that evidence in his hands than I have—to show that there is something of a problem here. For the past four and a half years what are known as ACR licences (the licences for short-term prisoners who go out on automatic conditional release) have been subject to court procedures for recalls. I am told that the picture is one of a lower level of reinforcement of licence conditions than applies to DCR licences (that is, the licences for four years and over), which have all the advantages outlined by the noble Lord.
The reason for that difference is that the level of proof required by the courts is different from the level of proof required by the Parole Board. But everyone knows that; 645 indeed, the Probation Service knows it. Therefore, it will not go to court if it believes that there is no chance at all of obtaining satisfaction. Indeed, Clause 14(4) says that a sentence of imprisonment for breach of a supervision condition shall not be made unless either the court thinks it expedient to protect the public from serious harm from the offender, or the offender's breach consists of an imprisonable offence. That shows that we are talking about a different level of proof from the one that would obtain with the Parole Board and the Secretary of State as things exist at present.
There is another unattractive and difficult point. I am advised that very often victim issues are not included in ACR licences because of the knowledge that victims would have to be brought back to court in order to prove breach of conditions. I do not like that at all and I very much hope that the Home Office will look again at the matter. I shall not go on in that respect because the noble Lord, Lord McIntosh, spoke effectively on the subject. However, I hope that my noble friend the Minister will look at the matter with some care. We are actually talking about people whom it is important to prevent committing another offence, as opposed to catching them after they have recommitted. That is the nub of the matter and upon that really hangs the case put forward by the noble Lord, Lord McIntosh, this evening.
The amendment standing in the names of the noble Lords, Lord McIntosh and Lord Williams, seeks to apply to all offenders—and I have to repeat, "all offenders"—sentenced to four years' imprisonment or more who have been released from prison and are subject to a release supervision order the same recall arrangements as those governing offenders on life licence. In other words, the Secretary of State could recall them to prison if recommended to do so by the Parole Board, or without such a recommendation on urgent public interest grounds.
I share the sentiments expressed that protection of the public is paramount and appropriate measures must be taken to ensure that offenders who fail to comply with the conditions of their release supervision order, and in so doing present a significant risk to the public, are dealt with swiftly and effectively. However, the Bill as it stands already provides for this. Clause 14 provides for offenders who breach the conditions of their release supervision order to be returned to prison on the order of the court.
Clause 15 enables the police to arrest someone who is believed to have committed a breach of supervision. The offender could then be detained and brought before the court promptly. If the supervising probation officer has reasonable grounds for believing that an offender who is subject to a release supervision order has breached the conditions and that urgent action is necessary to protect the public, then he can at once notify the police with a view to the offender's arrest and detention pending his appearance in court the next day or perhaps even later that day.
Some enthusiasts for the present law have drawn attention to the ability of the Parole Board to recall released offenders to prison within a matter of minutes in urgent cases and suggested that the absence 646 of Parole Board involvement will reduce the protection of the public. The Parole Board has a vast range of experience on which we place great value. But the ability to deal urgently with such cases will not be lost under the Bill. Indeed, we are proposing to streamline the procedure. Whereas at present the probation officer has to notify the parole unit which then asks the police to detain the offender, in future the probation officer will be able to deal with the police direct. This will cut out one stage and therefore save valuable time. Moreover, the new procedures will apply to all offenders subject to a release supervision order and not just to those offenders sentenced to four years or more. This is a further improvement as short-term prisoners cannot—as my noble friend has already said—at the moment be arrested for breaching their conditions unless the breach constituted the commission of another crime.
Once the offender appears in court for alleged breach of the release supervision order it will be for the court to decide, if it finds the case proved, what the correct punishment should be. This can include return to prison if the court considers it expedient in the interests of protecting the public or the breach consists of another offence which itself is punishable with imprisonment. But under the Bill the court will have a range of other options for dealing with breach of supervision which are not available now when it is either a case of an offender being taken into custody or being sent back out into the community. We are simply saying that the court can now impose any penalty including a community sentence. That is a further improvement on the present system.
Under the Bill prisoners will serve the whole of their term in prison, save for any days of earned early release which, by definition, they will have earned by good behaviour. I believe the noble Earl, Lord Mar and Kellie, made an important point about that. The release supervision order begins on their release from prison. It is additional to, not part of, the prison term. That is a fundamental difference from current legislation where the period on licence forms an integral part of the sentence, and in the case of lifers, such a licence does not expire until death.
I have been musing while the noble Lord, Lord McIntosh, and my noble friend have been talking. I was musing on the notion that, had the Government brought forward an executive power in the Bill for the Secretary of State to recall—in the supervision period outside the sentence period—someone back to prison without any reference to the courts or to the Parole Board, there would be pages of amendments tabled to curtail the Home Secretary's draconian use of an executive power. If the Secretary of State had executive power to recall an offender to prison without the authority of a court when the latter was outside the sentence period for behaviour that had nothing to do with the conditions of supervision that were laid down, that would be a serious abuse of power. We believe that the ability to recall someone quickly is essential. We have found ways of making sure that that will be the case. We also believe it is important to have court authority seriously to restrict someone's liberty if he is to be returned to custody.
647 We have deliberately made it an arrestable offence to be in breach of a condition of supervision, to make it possible for the Probation Service to do its job of ensuring there is a punishment which fits the crime. That can range from custody to a community sentence or even a court discharge. Against that background it would be wrong in principle to go down the road paved by this proposed new clause which would in effect allow the Secretary of State or the Parole Board to extend a prison sentence by executive authority. That cannot be justified. Indeed I suspect that the European Convention on Human Rights would have something to say about that matter.
Under the arrangements in the Bill when the offender is released he will have served his sentence. He will not be released on licence as now. Punishment for breach of the post-release supervision order must therefore be for the courts and the courts alone to authorise. As I have said, if breach is proved, the court will be able to impose a range of penalties, including imprisonment and also community penalties, further strengthening the options necessary for the court to deal satisfactorily with an offender. In dealing with the case the court can have regard to any period during which the offender has failed to comply with the conditions of supervision. The clock effectively stops as soon as the offender fails to comply. The offender cannot avoid any part of his release supervision order. For those reasons, I hope that the amendment will not be pressed.
§ Lord Belstead
Normally I always take entirely the points made by my noble friend the Minister. However, in this case when the noble Baroness invokes what might be a danger with the European Court, I must take issue with her.
The fact that the Parole Board is being used at present in what otherwise would be an Executive procedure as regards recalls makes it a perfectly reasonable procedure. I moved an earlier amendment which we debated. That is exactly why the Government are using the Parole Board in order to ensure that curfew orders and hostel orders are decided by the Parole Board. I do not think that we are in jeopardy of the European Court as matters stand at present.
§ Baroness Blatch
I understand the point my noble friend makes. However, there are two issues. Unless one introduces two systems running in tandem to cover the supervision period, under the skeleton framework of proposals about which I spoke for consideration at Report stage, if a person were released by the Parole Board at the 84 per cent. point, it is true that up to the 100 per cent. point of sentence it would be within sentence and clearly would not breach the European Convention on Human Rights principles. I would put a question mark beyond that point during which the supervision period would run. We take the view that once someone is released either under the short sentence system or as proposed under the longer sentence system, that is deemed to be the end of the sentence and the period of supervision begins. There needs to be only one system operating for the supervision period. As it is 648 deemed to be post-sentence, it is important that if anyone is to be returned to court—albeit he or she could be returned to custody quickly in emergencies—authority must come from the courts and not as a result of executive action from the Parole Board.
§ Lord McIntosh of Haringey
Analogies with the intrusive surveillance and executive action under the Police Bill come to mind. The Minister is saying that there is something wrong with executive action which is not authorised properly by an outside body. I am glad to say that we have persuaded the Government that external judicial prior authorisation is required for intrusive surveillance. The analogy is that the action should be taken by an independent body, the Parole Board.
All of that shows that the Government are acting on a stereotype: that the Government are tough on crime but that the Labour Party in particular is soft on crime. It is a totally false stereotype. It is certainly true that we understand being tough on crime as looking for a more effective criminal justice system which includes prevention, detection and conviction as well as sentencing. We regret the concentration on sentencing, the most populist part of being tough on crime, which is the Government's stock response to all those questions. That does not mean, as I think noble Lords will confirm, that throughout the Bill we have not been tougher about sentencing in many cases, and about enforcement of the criminal law, than the Government.
It is certainly not the case that we propose anything in the amendment which is at any risk from the European Convention on Human Rights or the European Court. It is not in any conflict with what has been done before. The only change which has taken place, and which has forced the Government to propose weaker protection for the public, is because the Government are governed by their ideology. I am getting very tired of the Minister being amused by the things that we are saying. I really do wonder whether she can be listening if she finds these matters quite as amusing as all that.
It is the ideology of saying that the period served in custody has to be the same as the original sentence which causes the problem that the Government now have; namely, that they cannot enforce quickly and easily a return to custody simply because the original sentence has expired. My suggestion is not that there should be executive action outside the period of a sentence—at least, not now; we shall return to the Butler Committee proposals on Report. My proposal is that the Government should relax their own ideological identification of the sentence with the period in custody in order to ensure that we can have a more effective system of recall, as now exists and as is proposed by these amendments.
§ Baroness Blatch
I apologise to the noble Lord for being amused, but I did feel that there was a little bit of electioneering going on in what he was saying.
Perhaps I may put a question to the noble Lord. It would be helpful to clarify where he is coming from on this amendment. The only way in which we can bring the whole of the supervision period into the sentence 649 period is by having very much earlier eligible release dates; that is, the 25 per cent. period, the 50 per cent. period for sex offenders, and up to 10 years for certain other sex offenders. The noble Lord has tabled an amendment which he will discuss in a moment suggesting a 50 per cent. period for violent offenders.
If the noble Lord is saying that recall to prison should only be on the basis of the within-sentence period, then he has to come clean and say that he would have an eligible period for parole very much earlier in the period of a sentence. If he is not saying that, my question to him is this. Is he really saying—because it would be new to the Parole Board as it operates now, and certainly a new power for the Government—that it would be possible to give the Parole Board and/or the Secretary of State an executive power to sentence, outside a sentence period, a person to custody without reference to the court?
§ Lord McIntosh of Haringey
That is a smokescreen, and the Minister knows it. The amendment is about the continuation of the existing powers of the Parole Board within existing Parole Board constraints. I think the kindest way to bring this to a close is to say that my understanding is that the undertakings given by the Minister to the noble Lords, Lord Belstead and Lord Carlisle, will involve a further discussion of these matters and may involve the Government in going further to meet the kind of concerns that are raised by this amendment, as by others. On that basis alone—
§ Baroness Blatch
I must intervene again. The noble Lord is rather widening the terms on which I gave my noble friends assurances that I will go on to consider their points of concern between now and the next stage. I have made it absolutely clear that we will not consider automatic release; nor will we consider bringing forward to an earlier point the eligible release date. We are talking about making sure that there is a proper risk assessment for release into the community at the 84 per cent. point of sentence.
§ Lord McIntosh of Haringey
What is the use of having a proper risk assessment unless there is provision for recall if the risk is assessed as being too great? That is what it comes down to. If I have over-estimated the importance of the Minister's undertaking to her noble friends, then I am sorry to hear it—not sorry from my own point of view, but because it would certainly mean that the principled objection that was put forward this afternoon to Chapter I of Part II of the Bill will have to be revived as a principled objection. We would rather deal with it as a revising Chamber and by negotiation. But if the Minister does not intend to put the protection of the public first, above ideology, then so be it. That is the way in which the matter will be debated at later stages. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 15 agreed to.650
§ 9.30 p.m.
§ Clause 16 [Young offenders]:
Lord McIntosh of Haringey moved Amendment No. 58:
Page 11, line 31, leave out ("secure accommodation") and insert ("a community home, provided that there has been no absconding or attempt to abscond").
§ The noble Lord said: Let us try to make this a slightly less emotive issue than the one we have just been discussing. I understand that we are to debate Amendment No. 58 with Amendment No. 59 in the name of the noble Lord, Lord Thomas of Gresford, which covers part of my Amendment No. 58.
§ This is again a question of "If it ain't broke, don't fix it". The present position is that time spent in accommodation provided for the purpose of restricting liberty but which is not a secure unit can count towards the time of a custodial sentence. The law on this point is governed by Section 67 of the Criminal Justice Act 1967 as amended by Section 130 of the Criminal Justice Act 1988. It provides that time spent on remand by a young defendant in accommodation provided for the purpose of restricting liberty should count towards a subsequent custodial sentence.
There have been recent cases, with which I shall not weary Members of the Committee, which established that accommodation provided for the purpose of restricting liberty was not limited to secure accommodation but also covered other forms of accommodation in highly structured and closely supervised conditions. Indeed, in reflection of that view of the courts, the Department of Health issued a memorandum on 16th May 1995 to directors of social services in which it was stated:
The Home Office …have taken the view that when a young person is remanded to local authority accommodation and placed in a non-secure children's home with education on the premises, from which he/she is not permitted to leave—
I do not care for the syntax there—
and who is not permitted to live at home with his/her parents, then the time spent there should count against sentence. In practice this will mean all placements in community homes".
We are not proposing any change here; it is the Bill which proposes a change. The Bill proposes a restriction to the effect that only secure accommodation should count against a custodial sentence. That must be damaging to young offenders. Of course they need to have their liberty restricted (that is the basis on which we are all speaking) but at the same time they may need the wider range of education, training and facilities which would be available in a non-secure children's home—let us not hear talk of secure training establishments again because there are not any; they do not exist—and which might in many circumstances be more suitable to the young offenders without being, strictly speaking, secure accommodation.
§ We are not opposed to local authority secure accommodation, as noble Lords will know. We have always said that an expansion of local authority secure accommodation is a proper alternative to the secure training centres which the Government proposed. Nevertheless, it is necessary that there should be a wider 651 range of the kinds of accommodation which are available to young people who need to be deprived of their liberty in anticipation of sentencing by the youth courts.
§ I shall not go into a tirade about the youth justice system, as I might well do; and I shall certainly not take any electioneering advantages, which I could do, about the youth justice system; but it is a fact that the Government now propose a change which is retrograde and which would restrict the availability of suitable accommodation for young people awaiting sentence. This amendment to restore the present position should be accepted by the Committee. I beg to move.
§ Lord Thomas of Gresford
I support this amendment. I speak also to Amendment No. 59, which is in my name.
The Criminal Justice Act 1991 changed the law by extending the Criminal Justice Act 1967, Section 67, to apply to sentences of detention under the Children and Young Persons Act 1933. It subjected offenders ordered to be detained under the Children and Young Persons Act to the same system of early release as adults sentenced to imprisonment. So, prior to the Act offenders sentenced to detention under the Children and Young Persons Act could be released at any time in the discretion of the Secretary of State; but after 1st October 1992 they had to serve half the term before being released or becoming eligible for release in the case of a sentence of four years or more.
The Act required the period of time spent in custody on remand to be treated as having been served for the purpose of determining whether the offender had served half or two thirds of his sentence for this purpose.
Section 67(1A)(c) of the 1967 Act provided that the time during which the offender was remanded or committed to local authority care and was in any accommodation provided for the purpose of restricting liberty should be treated as a relevant period for this purpose.
Those provisions came before the Court of Appeal in the case of Collins on 26th May 1994. The case is reported in 1995, 16, Criminal Appeal Court Sentencing at page 156. That concerned a youth of 14 years of age who pleaded guilty ultimately to false imprisonment and assault and had been detained in a non-secure home. He had been detained in a place that was known as Tong Park and was local authority accommodation. In considering the provisions of the Act, the Court of Appeal said:
Looking at the matter broadly, it might be thought to be rather puzzling that it was ever suggested that the appellant was not in accommodation provided for the purposes of restricting liberty. If his liberty was not restricted during the pre-sentence period, there do not seem to be strong grounds for arguing that some deduction should be made in the sentence at all".Mr. Justice Waller, who gave the judgment in that case, said that there was some discussion about it but the Home Office had written to say that the Home Office would have applied the automatic provisions in the case if the sentence in that case had been left alone. In other words, the Home Office view was that being 652 detained in local authority accommodation, even though it was not a secure unit, satisfied the provisions of the Act and should be taken into account in determining the sentence.
That was the law as expressed by the Home Office. The Crown adopted that position in the case of Collins and the Court of Appeal said that it was perfectly correct so to do. So we have the position that at present, where a youth is detained in local authority accommodation on remand or as a result of a court order awaiting a hearing, that has to be taken into account. Now what is proposed in this Bill is a change. The onus is upon the Government again to explain why there has to be a change in this Bill, so that only a young offender who has been kept in secure accommodation can have that period of time taken into account and counted as part of the sentence that is ultimately imposed upon him. Why is there that change?
It means that under the proposals in this Bill a young offender who is taken away from his home and kept in a secure unit will have the period of time that he spends in that secure unit taken into account. For the less disruptive young offender who is taken away from home, losing his home life, all his surroundings and so on, and who is ordered to stay in local authority accommodation which does not happen to be a secure unit, that period of time when he is taken away from home does not count.
There appears to be a manifest injustice about that which needs to be resolved. Why have the Government gone back on the position clearly expressed not only by the Home Office and the Court of Appeal but also by the circular to which the noble Lord, Lord McIntosh, referred? The department issued a circular, the terms of which have been quoted and which confirm the position of the Court of Appeal. We require reasons for the change.
§ Lord Hylton
The amendments appeal to me for two reasons, particularly Amendment No. 58 because it is the stronger. Some young people need their liberty restricting pending their hearing in court. But during that time of restriction it is important, first, that they should be able to maintain their family links and contact as much as possible; and, secondly, that their education should suffer the minimum of disruption. The amendments will help on both those points.
§ Lord Williams of Mostyn
Is the Minister able to say what the Government's definition is of "secure accommodation" in these circumstances? Also, can he indicate for what period of continuous incarceration the Government believe a young offender can be kept in a community home or a community home with education?
§ Lord Mackay of Drumadoon
Clause 16(3) sets out the types of remand which should be credited towards a custodial sentence where the defendant is a juvenile. They are time spent on remand or committal to local authority accommodation where the offender is placed and kept in secure accommodation and time spent on committal to a remand centre or prison.
653 To deal with the point raised by the noble Lord, Lord Williams, "secure accommodation" is accommodation to which the alleged offender is confined and from which he is not at liberty to depart as and when he chooses. Time spent in such a centre will count towards the sentence under the terms of the Bill as currently drafted. It is not spelt out in detail in Clause 16(3), as the matter is already covered by the definition of a remand to custody given in Clause 8.
The amendments proposed by the noble Lords, Lord McIntosh of Haringey and Lord Thomas of Gresford, would have considerable impact on Clause 16(3). As many Members of the Committee will know, juveniles who are denied bail are usually remanded to local authority accommodation. Once remanded there, the juvenile may be placed, among other places, in a community home. That may be in secure accommodation; it may be with foster parents or with relatives. It is for the local authority to decide where the individual is placed and considerable discretion is given to a local authority in such a situation.
Until recently in calculating the sentence for a juvenile the Prison Service took into account only time spent on remand in prison accommodation or in secure local authority accommodation in accordance with the intentions of Section 67(1)(c) of the Criminal Justice Act 1967. However, two court rulings—the case of Collins, to which the noble Lord, Lord Thomas, referred, and the case of Kerry—found that time spent on remand to non-secure local authority accommodation where the regime is highly structured and the people staying there closely supervised amounted to secure conditions and for that reason should count towards sentence. As a consequence of the rulings in those two cases, the Prison Service when calculating sentence currently takes into account time spent on remand to local authority accommodation even where the accommodation is not secure but where a strict regime is imposed.
Clause 16(3) seeks to reverse the position to what was understood to be the law before those two judgments were passed. The effect of Clause 16(3) is that only the following types of remand will count towards sentence: remand or committal to a remand centre or prison; remand to a local authority where the juvenile is placed and kept in secure accommodation; and, in the future, where a court has ordered a secure remand.
Amendment No. 58 will go even further than either the Kerry or Collins judgments and provides that time spent on remand to an open community home, whatever the nature of the regime, should be credited towards sentence. The only caveat is whether the remanded juvenile has absconded or attempted to abscond.
The Government cannot agree with either of the amendments. Juveniles who are given custodial sentences are held in a young offender institution, in local authority secure accommodation or in a youth treatment centre run by the Department of Health where there are secure conditions. Periods of detention in open conditions in a community home, during which period a juvenile defendant may go to school or take part in leisure activities outside the community home, are not 654 equivalent to the period of time spent under a custodial sentence. The Government believe that time spent under such conditions should not fall to be credited towards any sentence that has been imposed.
Whether or not the defendant absconds or even tries to abscond from a community home with open conditions is irrelevant, as the important point is the conditions under which the juvenile is held while on remand. The proper question is whether the remand conditions are comparable to those encountered while serving a custodial sentence. The amendments seek to equate the period on remand with the period of sentence. All that is quite apart from the practical problems that would undoubtedly occur in deciding, on the basis of any objective assessment of evidence, whether or not a particular defendant had attempted to abscond, or had been successful, and had thereby been disqualified from remand credits. The fact that it has not proved necessary to keep an untried juvenile defendant in secure accommodation may be a powerful factor in mitigation in deciding what sentence is to be imposed, but treating a period of remand in non-secure accommodation as part of that sentence is a different matter altogether.
For those reasons, on the clear understanding that all the amendment seeks to do is to restore the law to what it was understood to be before the two cases to which I referred, I hope that neither noble Lord will feel it appropriate to press the amendment.
§ 9.45 p.m.
§ Lord Williams of Mostyn
Before the Minister sits down, will he deal with the second part of my question? What is the Government's view on how long a young offender can be kept continuously in secure accommodation on a 24-hour basis?
§ Lord Mackay of Drumadoon
That is a matter for the people running the secure accommodation. As currently framed, the intention of the Bill is that if someone is kept in secure accommodation the extent to which he can leave the accommodation would be entirely under the control of those who run the accommodation. Non-secure accommodation would involve an element of flexibility where, provided the individual kept in contact with the accommodation, he would be abiding by the rules of the accommodation. For the life of me, I cannot imagine a situation where accommodation was secure but individuals were allowed to come and go from it for any part of the day. But it is not impossible that people running secure accommodation for young offenders, having got to know the individual concerned, took the view that it was appropriate for them to allow the individual to leave for a couple of hours during the day. I do not think that would necessarily render the accommodation non-secure. But, as I understand it, secure accommodation makes it clear that those running it determine as and when an individual leaves, if they leave at all.
§ Lord Williams of Mostyn
What the Minister is saying simply illustrates the absurdity of the Government's stance. Of course the secure 655 accommodation remains secure, but the question is whether the young offender is in it. If he is not in secure accommodation, are the Government saying that that counts as time served in custody or not? Are the Government aware of the existence of specific regulations dealing with how long young offenders can be kept in secure accommodation?
Finally, as I am intruding unfairly on the time of the noble Lords, Lord Thomas and Lord McIntosh, what is the difference between a young offender on remand in a community home in relatively open conditions and someone who serves a sentence in an open prison?
§ Lord Mackay of Drumadoon
The noble Lord makes my point. If the prisoner is serving his sentence in an open prison, that prison is still under the control of those running it as regards the extent to which the prisoner is free to leave the boundary of the prison. He is still serving his sentence. And so it is with secure accommodation. If it is appropriate in a particular case for those running it to release the individual—I find it very difficult to imagine that they would choose to do so—that does not of itself render the accommodation non-secure.
However, if the individual is free to come and go as he wishes, which is certainly the position if he is placed with a relative or a foster parent, then we are in a different situation altogether. That is why the Government believe that it is important to restrict the position to that set out in Clause 16(3). Although the noble Lord poses certain difficulties with the argument that I advance, as I understand it, that was the law for many years prior to the two cases to which I have referred.
§ Lord Thomas of Gresford
Before the Minister sits down, can he answer this question which arises from his reply to the question that I posed? I asked: why change the situation set out in the case of Collins? The Minister's reply to that, which he repeated a few seconds ago, was that it is the Government's view that they are reverting to the position as the law was understood to be prior to the Collins case. If that is so, what was it in that case that made the Home Office write to Leeds Social Services to say that the automatic provision would have applied to the situation that had arisen where Collins was kept in a non-secure home? Why was it that the Crown adopted that position, presumably on instructions? Later, in the memorandum of 16th May 1995, which the noble Lord, Lord McIntosh of Haringey, has quoted, why was it said:The Home Office … have taken the view that when a young person is remanded to local authority accommodation … from which he is not permitted to leave and who is not permitted to live at home with his/her parents, then the time spent there should count against sentence"?On all those occasions that was expressed to be the Home Office view and also that of the prosecution and their understanding of the law. How can it be said today that the alteration that this Bill proposes to the decision of the Court of Appeal in the case of Collins, and which was repeated in the case of Kerry, is a reversion to what 656 the law was previously understood to be? Prior to the case of Collins who understood the law to be as the noble and learned Lord now says it is?
§ Lord Mackay of Drumadoon
I am sorry if I have not made myself clear. I had understood quite clearly that prior to the case of Collins the law was as I understood it to be. The position had to be reviewed in the light of the two cases of Collins and Kerry to which I have referred. Prior to these cases I am unaware of any dissatisfaction with the law because many people—lawyers and non-lawyers—can readily draw a distinction between keeping alleged young offenders in secure accommodation from which they are not free to come and go as they please, with keeping them in accommodation such as foster homes, staying with relatives or wherever, where they have a measure of ability to come and go to school; to go out to meet their friends; go to youth clubs or whatever else they wish to do, but requiring them to stay somewhere else other than the family home.
That was something that was deemed to work. That was what the law was understood to be. As I understand it, Collins and Kerry changed people's understanding about what the law was. The Government take the view that the division which existed prior to Collins and Kerry was sensible and acceptable. That is why this Bill, in the form in which it is currently framed, draws a distinction between secure accommodation on the one hand and other accommodation on the other.
§ Lord McIntosh of Haringey
I am sorry to say it but the answers of the noble and learned Lord the Lord Advocate are all over the place. At one stage he said that the amendments go further than Collins or Kerry but then at another stage of his reply he says that the Government are seeking to restore the situation which existed before Collins or Kerry and that this would undo that by confirming the situation after Collins and Kerry.
At one stage he speaks as though the amendment would allow time spent at home or in a foster home or some other designated place as counting against sentence. But then he must recognise that the phrase "community home", which we use in the amendment, has a very precise meaning and it is a precise meaning which has been used by the Home Office in the Department of Health circular which I quoted and which has been referred to since.
In response to my noble friend Lord Williams, the noble and learned Lord acknowledges that a prison sentence is a prison sentence whether or not it is in an open prison. And yet he is not prepared to make that exactly comparable distinction between remand in secure accommodation and remand in a community home. Both of them are places where time is spent on remand and both involve the deprivation of liberty. Both of them are as much capable as counting against a custodial sentence as is a sentence in a secure prison as compared with a sentence in an open prison.
We have protected the position of the community home in Amendment No. 58 by saying that, if it were to be used in the way that the noble and learned Lord suggests and the young person then absconds or tries to 657 abscond, the provision would no longer apply. In other words, absconding or attempting to abscond automatically disqualifies the period from counting against the sentence.
The noble and learned Lord the Lord Advocate refers time and again to the purposes of Clause 16(3) but, if he turns to subsections (4) and (5), the assumption, for the purposes of subsection (2) or (3) of the clause is,that the prisoner's behaviour had been such as to entitle him to the maximum number of early release days available under that subsection.The analogy is very precise. If it applies for early release days, it should apply whatever kind of deprivation of liberty has been undergone.
Let us leave aside the legal arguments. The social reason for proposing the amendments is that a wider range of accommodation on remand is for the benefit of the young person concerned and for the benefit of society. If the balance between, for example, education and training in a community home is in favour of that choice as opposed to the real necessity for security against absconding, that should be the proper place of remand; that should be the decision of those responsible for the remand; and that should not affect the ultimate sentence which is served by the young person.
If there is not to be a proper judgment based on the needs of the young person concerned as between secure accommodation and a community home, and if that judgment is to be distorted by the length of the sentence that is finally awarded, the interests of justice are not being served. The public is not protected and the chances of weaning a young person away from crime are not being properly considered.
This is not the time of night at which to divide the Committee on the matter; but I am profoundly dissatisfied with the answers of the noble and learned Lord the Lord Advocate. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 59 not moved.]
Lord Thomas of Gresford moved Amendment No. 60:
Page 11, line 36, leave out ("16") and insert ("21").
§ The noble Lord said: I beg to move Amendment No. 60. The amendment refers to Clause 16(4). This is an interesting illustration of the problems that arise from the regime proposed by the Government. The prescribed person shall assume that the prisoner's behaviour has been such as to entitle him to the maximum number of early release days available if he is under 16. I do not know whether that is a rebuttable or irrebuttable assumption. Does it mean that the prescribed person starts off by assuming that the prisoner is entitled to the full amount but it can be reduced if the prisoner does not satisfy the prescribed minimum conduct? What does it mean?
§ The essential purpose of this amendment is to ask the Government why it is set at 16. Young offender institutions contain people between the ages of 15 and 21. A cut-off point of 16 seems to be an arbitrary 658 decision. Up to 16 there is an assumption, rebuttable or irrebuttable, that days of release have been earned. If the Government seek to draw a distinction they will create trouble within young offender institutions, as has been said so many times today. What people look for is their early release date to discover when they can get out. If there are to be distinctions all kinds of tensions are likely to arise in young offender institutions. We seek to discover why 16 has been arbitrarily chosen.
§ Baroness Blatch
Clause 16(4) specifies that prisoners under 16 years of age, or those who have been detained in local authority accommodation or in a home provided under Section 82(5) of the Children Act 1989, should be awarded the maximum number of provisional early release dates available under Clause 10. Amendment No. 60 proposed by the noble Lord, Lord Thomas, would extend this provision to all prisoners under the age of 21. Amendment No. 61 to Clause 16(5) makes a similar change in respect of remanded prisoners. Clause 16(5) makes provision that those who are under 16 years of age or those who are remanded or committed to local authority accommodation and placed and kept in secure accommodation under Section 23 of the Children and Young Persons Act 1969, or Section 37 of the Magistrates' Courts Act 1980, should be provisionally awarded the maximum number of early release days. Amendment No. 61 would extend these provisions to those under the age of 21.
Both Clauses 16(4) and 16(5) provide adjustment to other parts of the Bill so as to take account of the special arrangements that are necessary for children and young people who offend or are so accused. They recognise in part that some children and young people under 16 years of age lack a level of maturity appropriate for the adult provisions to apply directly to them. In addition, some of these children and young people will be held in accommodation outside the prison estate where the regimes are different and where it would be inappropriate to operate the earned early release provisions in the Bill in exactly the same way as in prison. Such children are usually under the age of 16. Young people can, however, also be held in a young offender institution from the age of 15. To ensure equal treatment of such young people, we have provided for the same release arrangements to apply to them wherever they are held.
The two amendments proposed by the noble Lord, Lord Thomas of Gresford, would significantly affect Clause 16, subsections (4) and (5), and widen these special provisions to include those aged under 21 years of age. The proposed widening of these provisions to include young adults aged 16 to 20 years is entirely inappropriate because this older age group, which would be included by the proposed amendment, does not fit well with either of the two special reasons which underpin these provisions. The older age group typically has a greater maturity which is well able to understand and comply with or exceed minimum standards, and the vast majority will be held in young offender institutions within the prison estate under regimes which are comparable to those applicable to adults. We see no reason whatever to extend the provisions in this way.
659 I hope it was a slightly rhetorical question: what is the difference between the number 16 and the number 21? Those of us who are parents know that there is a very real difference between a child aged 16 and under compared with a person who is 21 years of age.
§ Lord Thomas of Gresford
Let not the noble Baroness assume that I do not have children of my own. That is not the case; I have been there, done it. But would the noble Baroness be good enough to answer my specific question as to whether this assumption is rebuttable or not? She used two different expressions. She said that the person concerned should be awarded the maximum number of early release days; then later in her reply she said that they should be provisionally awarded the maximum number of early release days. Which is right? Is it the first, an irrebuttable assumption, or is it the second, that if they do not reach the minimum standard, just like anybody of an older age, they do not get their maximum number of early release days?
§ Lord Thomas of Gresford
On that assurance, I seek leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 61 not moved.]
Clause 16 agreed to.
Clause 17 [Sexual offenders]:
Lord Williams of Mostyn moved Amendment No. 62:
Page 13, line 40, at end insert—
("(7) The Secretary of State shall secure the availability of facilities to provide programmes of treatment designed to reduce the likelihood of further sexual offences so that any requirement that a sexual offender shall participate in such a programme as a condition of his release supervision order may be complied with.").
§ The noble Lord said: This is an amendment of great importance, particularly bearing in mind what the noble Baroness said earlier this afternoon, with which I for one entirely agree. She said on one occasion that the Government attach great importance to the breach of conditions of supervision. I entirely agree with that. It is critical to the assessment of these measures.
§ Secondly, she said that the Government were concerned with better protection for the public. Of course, we entirely agree with that. This amendment, in the context of Clause 17, is to make proper provision for conditions of supervision and therefore to provide a better protection to the public in particular circumstances.
§ Sexual offenders, in my belief and in the experience of many practitioners, offer a particular problem. They are a menace to the public. Many of them are extremely devious. Many are quite able to reconcile themselves to "good behaviour", to put it neutrally, in prison—that is conformist behaviour. But it is difficult to deal with what may be a pattern of recurring sexual offences, particularly where small children are involved.660
§ This amendment obliges the Secretary of State to make available facilities to provide programmes of treatment designed to reduce the likelihood of further sexual offences so that any requirement that a sexual offender shall participate in such a programme as a condition of his release supervision order may be complied with. In other words, if there is a sexual offender who is going to be released, part of the condition of his release supervision order may be that he attends at a programme of treatment which is designed to reduce the likelihood of re-offending in a sexual context. It should be an obligation on the Secretary of State to make those facilities available.
§ There would be a degree of expense and I put that in the context to which the noble Lord, Lord Carlisle, referred on Second Reading; £0.5 billion a year for new prisons. It is a prudent step for the protection of a particularly vulnerable section of the public and their relatives and friends. It means that one has conditions of supervision which can be carefully accommodated within the provision that the amendment would require. I beg to move.
§ Lord Carlisle of Bucklow
I do not pretend fully to understand the detail of the amendment, but it appears to be the way in which the Committee, the Government and Parliament should be proceeding in dealing with the real problems of sex offenders, in particular those who offend against children. I hope that, even if the amendment as it stands is not appropriate, the Government will welcome the intention behind it.
§ Earl Russell
It is not within the purpose of the present amendment but in a redrafted amendment that I have another aspect which I hope will be included. It is the treatment of men who repeatedly perpetuate domestic violence. It is an offence in which there is a large recidivist tendency which causes a great amount of hardship, dislocation, dismay and expense.
Punishment alone does not seem to have the necessary curative effect. Attempts have been made to provide treatment and the Home Office has been involved in funding some of them. It could be a cost-effective, humane and sensible way of dealing with a real mischief.
§ Baroness Blatch
Perhaps I may begin with the point made by the noble Earl because I regard it as being very important. Those of us who knew Baroness Faithfull will know that she was a doughty fighter for what was originally the Gracewell Clinic. It closed due to problems but reopened as the Faithfull Clinic. I was most pleased to carry on that doughty fight within the Home Office. We secured funding for the clinic, which is working well and hope to evaluate its work. That such a programme is important is beyond doubt.
It is true that the rehabilitation of sex offenders causes all the authorities the most difficulty. The noble Earl was right in saying that recidivism is high among sex offenders. It is a particular problem and any way in which one can address it is important. The increase 661 in the number of programmes in our prisons is particularly pleasing. It means that during the custodial part of the sentence treatment programmes are in order.
I share the concern that sex offender treatment programmes should be readily available to meet an identified need, but we do not need the amendment to achieve that. Perhaps I may say to the noble Lord, Lord Williams of Mostyn, because I know that it is the premise behind the amendments, that if it is a condition of supervision the provision must exist. It is no good making breaching a condition of supervision an arrestable offence if the person in default is the Secretary of State or the Probation Service, which would be the front line service for making the provision.
The Probation Service already has the responsibility, which it is used to meeting, to design, provide and promote effective programmes to tackle all aspects of offending behaviour, including sex offending. I am aware that when the issue was discussed in another place concern was expressed that the proposals in the Bill would place an additional burden on the Probation Service. Although we expect the overall effect of the provisions to be broadly cost neutral for the Probation Service, we have promised to keep the matter under review.
There will of course be some savings arising from the "honesty in sentencing" proposals in the Bill—the point made earlier by the noble Lord, Lord McIntosh, that some sentences will be longer on custody and shorter on supervision—which are largely likely to offset the additional costs arising from the provisions for extended supervision for sex offenders. Probation committees receive grant allocations to support their programmes based on workload and demographic indicators of needs. It is for individual services to decide on spending priorities.
Well-designed and properly delivered sex offender treatment programmes will obviously play a major part in assisting sex offenders to tackle their offending behaviour. That is borne out by research. In October last year the results of a Home Office research study concerning the two-year reconviction rates of a small sample of sex offenders who received treatment in the community were published. The study indicated that such treatment not only has a positive effect on offenders' attitudes but also on their reconviction. Although the probation service has no national equivalent to the prison service sex offender treatment programme, treatment programmes are nonetheless widely available within the community. Almost all probation services now run treatment programmes and, in addition, the Government provide funding to the Wolvercote Clinic, a residential sex offender treatment programme which specialises in treating men who have abused children with whom they have established a relationship.
To aid the probation service in its work, Her Majesty's Inspectorate of Probation has embarked on a thematic inspection of probation service work with sex offenders. The outcome of that inspection, which should be available later this year, should provide a 662 useful tool for probation services to improve the quality and effectiveness of sex offender treatment programmes provided locally.
Programmes to tackle all aspects of offending behaviour—which, interestingly, is why sex offending should be particularly singled out on the face of the Bill—are made available by the probation service on the basis of need. The issue is best left to the probation service, which will play an integral part in determining and influencing conditions of supervision. The service is best able to identify the need for, and take steps to provide, the specific treatment to tackle a particular type of offending, including treatment for sex offending. For those reasons we cannot support the amendment going on the face of the Bill but we have every sympathy and empathy with the sentiments behind it.
§ 10.15 p.m.
§ Lord Williams of Mostyn
I am disappointed not with the tone of what the Minister says but with the conclusion that she offers us. Of course, I agree—and this is the motive behind the amendment—that there is no national equivalent for the treatment of sex offenders out of the prison system to correspond with a national regime within the prison system. That is what troubles us.
We are suggesting a scheme which, as the Minister said, the sample shows to be cost effective, practical and one which would bring about proved public protection. Leaving it to individual probation areas simply will not do, for two obvious, practical reasons. First, if a judge is sentencing someone and has in mind particular treatment for a sexual offender who may be a sexual recidivist, he can only sentence on the basis of available resources. If the available resources are not there, that is one sentencing option which will not be open to him.
Secondly, if the probation service in the area is tightly strapped for resources, which many of them are, in preparing the appropriate report for the court the probation officer will simply not be able to offer such an alternative for the court to consider. That is not a criticism of the Minister, because I know that she shares my views about the particular problem of recidivist offenders. This has nothing to do with party politics at all. When one considers the resources that may be applied elsewhere in other aspects of the Bill, it is very disappointing that the amendment cannot be accepted by the Government. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 agreed to.
Lord McIntosh of Haringey moved Amendment No. 63:
After Clause 17, insert the following new clause—
EXTENDED RELEASE SUPERVISION ORDER FOR VIOLENT OFFENDERS
(".—(1) Subsection (2) applies where—
- (a) an offender who has been sentenced to imprisonment for a term of four years or more in respect of a violent offence
663 committed after the commencement of this Chapter is released under this Chapter; and
- (b) the court by which he was sentenced gave a direction under subsection (3) below.
(2) Section 13 above shall have effect in relation to the offender as if for subsection (2) there were substituted the following subsection—
(2) On his release, the offender shall be subject to a release supervision order
- (a) where he is released otherwise than under section 9 above, for such period as is specified in the direction under section (Extended release supervision order for violent offenders) (3) below;
- (b) where he is released under section 9 above, for a period equal to the aggregate of—
and in applying paragraph (b) above account shall be taken of any early release or additional days awarded to the offender before his release.
- (i) the period mentioned in paragraph (a) above; and
- (ii) a period equal to so much of the remainder of his term as he would have served but for his release under section 9 above;
(3) Where a court sentences an offender to imprisonment for a term of four years or more in respect of a violent offence committed after the commencement of this Chapter, it may give a direction under this subsection.
(4) A direction under subsection (3) above shall direct that the offender's release supervision period shall be such period as is specified in the direction.
(5) The period so specified shall be a period equal to more than 25 per cent but not more than 50 per cent of the offender's term of imprisonment (rounded up to the nearest whole day).").
§ The noble Lord said: The effect of Amendment No. 63 would be to extend the period of supervision for serious offenders; in other words, those sentenced to four years or more who are also violent. I shall not go over the ground that we dealt with earlier this afternoon when we considered whether Clause 7 should stand part of the Bill and subsequent amendments. I shall draw attention only to the conclusion of that discussion when we drew attention to the remarks of Mr. Maclean in another place on 10th December last year on the issue of parole and whether parole improved the chances of a prisoner staying straight.
There was disagreement about the evidence from the Home Office. However, the important point to refer to here is Mr. Maclean's observation when he said:
There is no evidence whatsoever that parole, rather than well-targeted and effective supervision, leads, of itself, to a reduction in offending".—[Official Report, Commons, Standing Committee A, 10/12/96; col. 342.]
I do not agree with that. I think that his assessment of the effectiveness of parole is based on, at the very least, a misinterpretation of the Home Office research. However, I draw attention to the point about,
well-targeted and effective supervision.
That is the thrust of this amendment.
A similar amendment was moved in Standing Committee in another place. The Minister pointed out that the provisions of Clause 1 of the Bill would create a larger number of automatic life sentences which would therefore make extended supervision possible. He said that,
Of the 1,900 violent offenders sentenced to custody of four years or more in 1995, we estimate that 120 would have been eligible for an automatic life sentence had the Bill been then in force".—[col. 341.]
Regardless of any amendments carried last week, the point is that even under the Government's proposals, that is only 6 per cent. of violent offenders; 94 per cent. of violent offenders would not have received automatic life sentences and would not therefore have the possibility of continued supervision—indeed, supervision for life.
§ What is the position about extended supervision under the Bill? It is difficult to sort out. We are clear about the present situation. In the case of a prisoner who receives an eight-year sentence, with parole that means four years in custody, two years on parole and a further two years at risk. The Government may not like that; indeed, they clearly do not, but that is the present situation and it is reasonably clear. The question of whether there will be more or less supervision now under the provisions of the Bill is much less clear. Someone who is released on parole would receive a shorter period of post release supervision under the new proposals, whereas the long-term prisoner who does not receive parole would receive a longer period of supervision under the Bill's proposals. We have to accept that there are pluses and minuses in terms of supervision for different cases under the Bill's provisions.
I wish to draw an analogy with what the Government themselves have stated about sex offenders. This relates to the amendment just moved by my noble friend Lord Williams of Mostyn. As recently as June 1996 the Government's consultation document Sentencing and Supervision of Sex Offenders stated:
the length of post-release supervision for the majority of sex offenders is at present directly proportionate to the length of time spent in custody … The longer the period of supervision on release from custody, the greater the opportunity for the probation service to continue to work with the offender to address his offending behaviour, to assess the risk he poses to the community and to take steps to minimise that risk by arranging further treatment or helping the offender to avoid a relapse".
Those are wise words but, I suggest, they should apply also to serious violent offenders—those covered by the amendment. I believe that we are all in agreement about the way in which sex offenders should be treated. I am encouraged to believe that by the responses of the Minister to my noble friend's arguments. But we want to provide an extended supervision period for violent offenders. That is not adequately provided by Clause 17 of the Bill. It is provided for by the new clause.
§ In relation to the supervision of violent offenders, the provision does not go as far as Clause 17 for sex offenders. It does not require the courts to order extended supervision, but merely gives them a discretion to do so. It is limited to the more serious cases where sentences of four years or more have been passed. That is equivalent to six years or more under the existing rules.
§ It is, therefore, a rather modest amendment. In cases involving serious, violent offenders the amendment gives the court a discretion to award longer periods of supervision. In other words, in keeping with the way in which we have been approaching this part of the Bill 665 throughout, the provision is concerned primarily with the protection of the public. On that basis alone, I believe that it should commend itself to the Committee. I beg to move.
I share the concern that the law should provide greater protection for the public from the most serious violent offenders. That is why in Clause 1 of the Bill we have automatic life sentences for those who commit repeat serious violent offences. I also support the view that a period of supervision is valuable for any offender who is released from a significant spell in prison. We have provided for that in the Bill by way of a statutory period of post-release supervision which, following an amendment in another place, now represents a period equivalent to 25 per cent. of the sentence length. This means that an offender sentenced to four years' imprisonment will, on completion of his sentence be subject to 12 months' supervision by the probation service during which time the service will continue to work with the offender to build on work started in prison to tackle his offending behaviour.
But, however valuable the supervision period, the case for increasing it still further for a particular group of offenders, and violent offenders in this case as this new clause proposes, I believe should be considered further.
The group of violent offenders covered by the proposal are among those who receive the longest sentences. Some of them will receive an automatic life sentence under Clause 1 of the Bill and will be supervised for life. As the noble Lord mentioned, of the 1,900 violent offenders sentenced to custody of four years or more in 1995, we estimate that about 120 would have fallen into this category.
Those who do not will nevertheless receive long prison sentences. And we have made one particularly important improvement in supervision arrangements as compared with the present arrangements for prisoners when they are released. Under present arrangements an offender who is held until the two-thirds point of sentence because he is not granted parole is supervised for only 8 per cent. of sentence—or less if he has any additional days to serve. Under the Bill, an offender's supervision period will be 25 per cent. of sentence whenever he is released. This means both that serious violent offenders will spend a lengthy period of time in prison, during which time they are very likely to be involved in treatment programmes to tackle their offending behaviour, and that they will be subject to a lengthy period of supervision when released, which will allow action to build on the work begun in prison.
Perhaps I may illustrate the point by giving an example. In the Bill as it stands, an offender who receives a four-year sentence will serve between three years and four months and four years, and, on release, will be supervised for 12 months. The equivalent sentence under present arrangements is six years. An offender who received no parole would serve four years and be supervised on release for only six months. In other words, the supervision period under our proposals would be twice as long as it is at present.
666 The amendment tabled by the noble Lord, Lord McIntosh, seeks to apply to some serious violent offenders supervision arrangements similar to those which the Bill provides for sex offenders. But it has long been recognised that sex offenders are considered to be different from other offenders including violent offenders, and it was on that premise that the Criminal Justice Act 1991 made provision for a longer period of supervision for sex offenders. For example, sex offenders tend to continue offending for much of their lives; many violent offenders stop offending earlier. Sex offenders tend to escalate in their offending; often violent offending appears to be more random, sometimes the result of loss of control, alcohol or drugs. Sex offences are clearly defined in the Criminal Justice Act 1991; violent offences cover a very wide range of behaviour.
It is important to target supervision effectively. The Bill provides lifelong supervision for the most serious violent and sex offenders. It provides extended supervision for other sex offenders because for those offenders there is a clear and specific need. And it provides supervision periods commensurate with the seriousness of the offending and proportionate to the prison sentence imposed for other offenders.
We see one or two problems in relation to the amendment before us. I do not reject the noble Lord's proposed amendment out of hand; indeed, I am very sympathetic to it. We share the same aim. But, first, can I assume that, as the noble Lord wishes supervision to be within the sentence period (if one takes all the amendments together that the noble Lord is supporting) then the eligible release date for a violent offender would have to be at the 50 per cent. point in order to contain the supervision period within the period of sentence.
Secondly, there is not a definition of violence. My question is: would it include Section 47, Section 18 and Section 20 violent offences; or would it include any violent offence that attracted the sentence set out in the amendment?
Thirdly, does the reference to "four years" mean four years as of now—which would mean a sentence of two years and eight months—or would it be four years under the new proposals, which represents a sentence equivalent to six years? It is important to know whether the noble Lord is using an old or a new version of the four years.
Under the amendment the court is not required to give reasons for the extended supervision. I can only imagine that is an omission that the noble Lord would want—if the court varied the supervision order, reasons would be given in open court.
I recognise that the noble Lord has moved from the rather inflexible position of the amendments tabled in the House of Commons proposing a fixed period of 50 per cent. for violent offenders—again without definition and without explanation of the four-year period. It would be right, were we to go down this road, that the discretion of the judge should be considered because of the wide variety of violent offences that can be considered. In that case it would be very important 667 for the court to spell out precisely why there was an extension and a movement away from the standard 25 per cent.
The amendment introduces a discretion for the courts. We accept that. I should like to consider that further. But we have a number of questions about the amendment before us. I wonder whether the noble Lord will help us with the answer to some of those questions.
§ Lord McIntosh of Haringey
That is very interesting. The Minister is saying in effect not only that the intention of the amendment is good but that, subject to a number of relatively minor reservations of which I took a note and can certainly answer, the Government may well be prepared to consider a proposal along these lines at a later stage. I am deliberately putting words into the Minister's mouth because I do not believe that her reservations about the wording were particularly serious.
The first one, which relates to the release date and the fact that it is our wish that the release supervision order should be considered within the period of the sentence, is probably the most serious. That, of course, is exactly the kind of issue which is open for discussion.
§ Baroness Blatch
Let me make it plain once more. I have said several times today that we are not contemplating an earlier release date. The discussions we are having with my noble friends address their concerns about the safety of releasing prisoners, the arrangements for that release, a proper risk assessment at the time of release and the conditions to set down for supervision. We are not talking about the whole supervision period being within the sentence period. I have said this to the noble Lord once; I say it again and I shall continue saying it: we are not contemplating earlier release dates for anybody.
§ Lord McIntosh of Haringey
The Minister indeed said that before and I give the same response as I did then: behind all the amendments we have been proposing has been a principled objection to what is in effect the abolition of parole and the remission system.
Release dates are one of the considerations in that change. Unless either release dates are a matter for discussion or there is the possibility of supervision continuing outside the period of sentence—which, as I said before, comes back to the reviewable sentence proposals of the Butler Committee—we shall not get very far in discussions.
§ Lord Carlisle of Bucklow
I wish to make it clear, in view of what my noble friend said, that I fully accept that what she said is exactly what she said earlier to me and, I assume, to my noble friend Lord Belstead.
I must also make it clear that, in welcoming the fact—as I hope I did at the end of the discussion on Clause 7—that the Minister is willing to consider the restoration of parole, I should not be taken as in any way accepting the limitations of her argument that there 668 should be no movement in the release date. I do not think that my noble friend thought for a moment that I was accepting those limitations.
Maybe the Government will not agree, but I hope she did not think that I in any way implied that I did not intend to continue to press her to reconsider the matter, although I accept that she made it clear that at the moment the Government's intention to look at this matter was based merely on restoring parole. I would argue that, if the question of the restoration of parole is considered, some area wider than the 84 per cent. should be covered.
§ Baroness Blatch
I understand what my noble friend is saying. Perhaps I can separate the two matters. In agreeing to consider the matter further for the Report stage, I have made two things very clear. We are not prepared to go down the road of contemplating automatic release; nor do we wish to go down the road of earlier release than that we have been talking about. I shall continue to be pressed by my noble friend because it would be entirely characteristic for him to continue to press me. However, the only way in which this amendment can be accepted within the sentence is that a violent offender would have to be released at the 50 per cent. point of sentence. The whole purpose of the Bill is that we shall not release violent offenders, or indeed anybody, into the community at 50 per cent. of the sentence.
§ Lord McIntosh of Haringey
All of these matters have knock-on effects on each other. If it is indeed the case that we cannot persuade the Government either by force of argument or by force of numbers that they are mistaken, we shall have to look at the other options available to us. One of those options is reviewable sentences and the possibility that supervision might continue after the end of the sentence. That cannot be wholly ruled out.
The Minister challenged me on the definition of violence. There are plenty of definitions of violent offenders, as she well knows. I am sure that in discussion we can reach an acceptable definition, just as there are acceptable definitions of sex offences.
The noble Baroness challenged me on the question of whether I meant four years now under the present situation or four years then. I thought that I had made it clear in the example I gave that I meant the four and six years rather than the four years and two years, eight months. But, again, that is a matter for negotiation. I do not feel strongly about it. I think she will realise that there will have to be amendments at Report stage which will seek to redefine the definition of serious offences in terms of the length of the sentences.
The noble Baroness's fourth challenge was that I had omitted to say that the courts should give reasons for extended supervision periods. I readily agree with that. Of course they would have to do so. I cannot imagine that it would have to be on the face of the Bill, but, if necessary, a further amendment could be introduced to that effect. However, I shall consider whether it should be on the face of the Bill.
669 I emphasise again that this amendment would merely give a discretion to the courts to award a longer supervision period. Since we all agree that that would be desirable, I cannot believe that it is beyond the wit of man or woman to reach a conclusion about a suitable wording to achieve it. In hope of that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 18 agreed to.
Clauses 19 to 21 agreed to.
Clause 22 [Continuity of sentencing]:
Lord Carlisle of Bucklow moved Amendment No. 64:
Page 16, line 19, leave out from ("to") to end of line 21 and insert—
- ("(a) two-thirds of any term of four years or more which, at that time, it would have held to be appropriate if the offence had been so committed; or
- (b) 60 per cent of any term of less than four years which, at that time, it would have held to be appropriate if the offence had been so committed.").
§ The noble Lord said: If, in moving this amendment, I were to say that it was my intention to divide the Committee, I believe that I should be listened to with a degree of derision. Therefore, I can assure the Committee that that is not my intention. But that does not mean that there is not a serious point behind the amendment, which is to try to meet what the Government say are their intentions.
§ We now come to a clause which attempts to meet the contention of the Government that one can move to real time sentencing without in fact increasing the period spent in prison by those whom the courts sentence to imprisonment. To achieve that end, it is the intention of the Government, as clearly set out in this clause, that when this part of the Bill comes into effect courts should impose sentences shorter than they are imposing at the moment. The Home Secretary will then be able to say that the time spent in prison equates with the length of the sentence passed—not by bringing the time spent in prison up to meet the length of the sentence passed but by reducing the length of the sentence passed to equate with the time spent in prison.
This was first spelt out in the White Paper, where the Government said in terms that that was their intention. The White Paper states that it is expected that judges will,
take into account, when passing sentence, the abolition of parole and the changes in early release arrangements".
It further states that:
the Government does not expect these proposals to result in a general increase in the period of time offenders serve in prison".
§ As I said, to achieve that end the Government have said in that section that in future when coming to sentence the court will be required to ask, "Now, had I been sitting in 1997 in the early months of that year before the passing of this Act, what is the sentence that I would have passed? And, having decided in the year 2002 what is the sentence I would have passed in 1997, I must, since this Bill is now in effect, reduce that sentence by two-thirds."670
§ If one is dealing with cases in which a sentence is about four years, then I accept that, by saying the sentence should be 66 per cent. of the sentence which would be passed at the moment, the Government achieve their aim that the sentences passed for the longer-term offenders are likely to accord with the period they at present spend in prison. They will equate the 66 per cent. sentence to the 66 per cent. of the existing sentence that those who do not achieve parole serve, and whether or not parole is achievable is undefinable in advance.
§ But what of those who at the moment come out at the 50 per cent. point because their sentences are shorter than four years? There, the Government have said that the sentences should be reduced by 66 per cent. to take account of the fact that, rather than coming out at the 50 per cent. point of their sentence, they are in future apparently to come out at the 84 per cent. point. But, having done those mathematics, the fact remains—as the Minister agreed earlier today—nevertheless the effect is to increase all prison sentences for those sentenced to up to four years (which, as she said, is the vast majority of offenders) by 11 per cent. Therefore the purpose of this amendment—which says that for sentences up to four years, the court should give a sentence of 60 per cent. of the sentence it would otherwise have given—is to try to meet that problem. If it gave 60 per cent. rather than 66 per cent. of the sentence it would have given, then the period in prison, if the person received the full advantages of early release, would equate to the 50 per cent. of the sentence that is served at the moment.
§ Of course that is nonsense, and I accept that it is nonsense. That is why I said I do not propose to press the amendment to a Division. I wish to make the point that, if the Government say that their intention is that sentences should not be increased, then they should be saying that courts must give 60 per cent. of the sentence they would pass rather than 66 per cent. I hope that by raising this issue I shall persuade the Government at least to consider the problems they may be causing by the increased pressure which will be brought to bear on our prisons.
§ Perhaps I may make one final point. I was interested to hear and accept totally the point made by my noble friend, though I was surprised when she said that the predictions of the future prison population had taken account of the fact that the Bill's effect would increase by 10 per cent. the time spent in prison by those sentenced to up to four years. I say that because the White Paper said a key assumption was that, when imposing a sentence other than the mandatory minimum sentences, courts would take full account of the changes. Therefore it was not intended that there should be a general increase in the time served in prison.
§ It would be reasonable to assume from that point that the Government's proposals were neutral. I believed that that was the intention until it was pointed out to the Home Secretary that what was said in the White Paper would in fact lead to a reduction in sentences rather than the reverse, as a result of which the proposal for 66 per cent. was included in the Bill. Of course I accept 671 that that is so, but I still believe that the additional pressure put on prisons is unnecessary and that the money could be better spent elsewhere.
At this late hour I am encouraged by one thought. If one looks at the end of that same chapter on resources, paragraph 13.7 deals with how these matters might be implemented. It states:
The remaining proposals for honesty in sentencing and mandatory minimum sentences for domestic burglars could then be implemented [subject to the building programme) two years later—in October 1999".
Should, regrettably, another political party be in government at that stage, the provisions may not see the light of day. Should, as I desperately hope, my own party be in power at that stage, I trust that by 1999 it will have been persuaded that the provisions introduced in 1992 were so sensible that it would be unwise to alter them after all.
§ Lord Hacking
Perhaps I may intervene for a few moments. I am very glad that my noble friend told us at the beginning of his address to the Committee on this amendment that we should not take the amendment seriously. I was therefore happy to hear him say that what we should be taking seriously is the need of the Government to have to place Clause 22 in the Bill at all. That need arises out of what I believe to be a most regrettable change in the Government's penal policy in introducing new measures which (but for this clause) would result in, if the Bill goes all the way to enactment and enforcement, prisoners serving different sentences in prison for the same offence.
We must look at the clause itself and how it would operate. I have to say to my noble friend and to the noble Lord, Lord McIntosh, that their amendment does not help one whit in the actual operation of the clause. If a judge was thinking of passing a sentence of three years, six years or nine years, it would be a matter of fairly easy arithmetic for him to apply his mind to Clause 22(1) and (2) and reach a period of imprisonment which was at a rounded figure. But if the learned judge was thinking of a different period of imprisonment—for example, five years—he would then face a somewhat difficult arithmetical calculation.
I do not tell the Committee that I am necessarily right, without a calculator and sitting in the Chamber as the noble Lord was speaking, in my calculations, but I have calculated that if the judge was wishing to impose a five-year sentence or would have wished to impose a five-year sentence, before the Bill came into force, and therefore had to turn his mind to Clause 22, the actual result of that would be that under Clause 22(2) he would have to apply a sentence of 3 years, 108.32 days. One would hope that he would not go to that detail but that is the consequence of the kind of arithmetical calculation that the judge—I have to put it this way—would absurdly have to apply.
I took the period of five years for a reason. When my right honourable friend the Home Secretary was 672 originally having his first thoughts—if I may describe it in that way—about this new sentencing policy he actually said at a Conservative Party conference that, "Five years will now mean five years". Therefore, one must assume that five years is a period of imprisonment that the Home Secretary had in mind when he was introducing this Bill. That is why I chose the period of five years and made the calculations, which I put to the Committee, on the basis of five years. Indeed, in the law courts, five years is the kind of rounded figure that judges choose when appropriate for the offence.
So the basic question which I understand my noble friend to be asking and which I certainly ask of the Committee, is this: Does this change in penal policy make sense? Is it meeting a public demand that more should be done to deal with the problems of criminality now, at the end of the 20th century and at the beginning of the 21st?
When my noble friend the Minister addressed the Committee earlier on this matter she said, stepping aside from the views of the judiciary, that she was travelling on the upper deck of a London bus. I speak as a lawyer, but she did not choose to say that she was on a Clapham omnibus and, therefore, that she would have had next door to her "the reasonable man" who was somehow identified in the 1930s, I believe, by Lord Atkin—I hope that the noble Lord, Lord McIntosh, is enjoying this little legal seminar—in order to establish the test of reasonability in civil cases.
But what I am concerned about, with my noble friend, is that I believe she misjudges the views of her fellow passengers. All I can do is to encourage her, in a very humble way, to start talking to our fellow passengers on the upper deck of the omnibus even if she is not travelling on the Clapham omnibus. If she talks to them I believe that she will find that her fellow passengers will say, at the point of sentence, when somebody has committed a very serious crime, "Yes, there should be a severe sentence. They should be passed at 10 years, 15 years or even longer". I believe that she will also hear from them that in certain cases that period of imprisonment should mean exactly that—10 years or 15 years. The most painful example of that is the Moors murder case, where the view has been taken by successive Home Secretaries that a life sentence for the two accused means a life sentence.
However, when my noble friend is travelling on the omnibus, I believe that she will find many fellow passengers who say, "There is a time for clemency; there is a time for the operation of the parole system; there is a time to let people out; that the public need for the condemnation of the offence and the passing of a severe sentence has been spent and that we now should move on because we cannot stay there. The Chief Whip is acting as the conductor at the moment and he is wanting to collect the tickets. I say to my Government Chief Whip that this is the only intervention that I have made in Committee this evening, and therefore if I have taken a little time I apologise to the Committee. But I have a very serious point, which is that Clause 22 673 identifies the mistaken policy of the whole Bill and produces an absurdity. That is why I believe that it should not be there.
§ Lord McIntosh of Haringey
I have no particular objection to legal lectures, but I am not very keen on them at nearly 11 o'clock at night. I suspect that my attention span is shorter than it might be at other times of the day. I shall confine my remarks to Clause 22 and not to the generality of the Government's policies.
It is a self-contradictory clause, which purports to say in subsection (1) that people should spend the same time in prison as they would have served if the offence had been committed before the commencement of this part of the Bill. Subsection (2) fails to achieve that because it fails to recognise that there is a difference in the release procedures between those sentenced to more than four years and those sentenced to less than four years.
The amendment which has been moved and to which I have added my name, is a gross over-simplification. To correct the matter should not be to put in two-thirds for over four years and 60 per cent. for over four years. It should be an algebraical formula which reflects that part of the spectrum of sentences which is over four years and that part which is under four years. But there is no doubt—and Mr. David Maclean in the Commons acknowledged this—that, mathematically, subsection (2) does not achieve the objectives of subsection (1). Therefore, purely rationally and objectively, this amendment is better than the Government's proposals, even though it is not sufficiently accurate.
I am sorry to say that my fear is much more that judges will not find it possible to reduce the nominal sentences so that there is not an increase. I find the memorandum on the financial effects of the Bill totally unsatisfactory. It states:It is estimated that the proposals in Parts I and II for mandatory custodial sentences and new early release arrangements would eventually result in an increase of around 11,000 in the prison population".It is an insult to Parliament to add together the totally different effects of Part I as regards mandatory minimum sentences and Part II as regards early release arrangements and to give only the total effect without distinguishing between the two. That is insulting to Parliament. If those are different influences on the prison population, they should have been given separately in the memorandum on the financial effects of the Bill.
I am sorry that this question has only just occurred to me but since we have made some changes in Committee to the mandatory minimum sentencing procedures, it will now be necessary to table Written Questions in order to establish what is the differential effect of those two parts of the Bill on the prison population. I shall table those Questions. In the meantime, this amendment, although imperfect, is certainly an improvement on the self-contradictions in Clause 22 as it stands.
§ 11 p.m.
§ Earl Russell
I listened with fascination to the noble Lord, Lord Carlisle of Bucklow. He reminded me vividly of my former headmaster attempting to demonstrate the difficulties of long division in Roman numerals by doing it on the blackboard and waiting for the bright mathematician at the back of the class to put up his hand and say, "Sir". We do not appear to have a bright mathematician in the Committee at the moment. But the noble Lord, Lord Carlisle of Bucklow, has illustrated with quite painful clarity the difficulties of operating the procedures laid down in Clause 22. Of course, I have heard many people speak to precisely that point. I have never understood with such clarity quite how difficult an operation we are asking our judges to perform.
It is very much like the operation that some of us attempted to perform when we converted to decimal currency. I very soon discovered that it was quite impossible to convert the new prices at which I was looking into what they would have been in old prices and, first and foremost, it was because prices in different commodities inflated at different rates. In very much the same way, sentences for different offences inflate at different rates. First one offence and then another attracts the spotlight of attention and sentences go up.
Therefore, I do not think that this job can be done at all. The clause asks the judge to impose the sentence that he would have considered appropriate if the offence had been so committed. It is asking the judge to answer a hypothetical question. I understand very well why Ministers do not like answering hypothetical questions. It seems to me that that argument can apply equally well to judges. The judge might well reply, perfectly logically, "Well, I wouldn't have started from here in the first place". If he had been in a different situation, he would not have been thinking the thoughts that he is then. I do not see that he can know what sort of sentence he would have imposed if this Bill had not come into effect. The implications of that for the costings of this Bill, as the noble Lord, Lord McIntosh of Haringey, points out, are very serious. I was equally fascinated by the noble Lord's point about the costings of the two parts of the Bill. I will look at the Written Answers with a great deal of interest.
§ Lord Thomas of Gresford
The noble Lord, Lord Carlisle, has illustrated the nonsensical nature of this provision. One sees that in subsection (2) it is provided that,the court by which a person is so sentenced at any time shall impose a term which is equal to two-thirds of the term which, at that time, it would have considered to be appropriate".The position would be a little difficult if the court were not a judge at that time. If in 10 years' time there is a completely new judiciary, what is it supposed to do? It cannot look at the experience of 1997 and consider what it would have done at that time. I suppose that it would begin to consult the books. Thomas on Sentencing—no relation—would become the Bible from which everything moved. The noble Lord, Lord Carlisle, said that he did not seek to move a serious amendment but to illustrate the absurdities of the position. He has done 675 it extremely well. I conclude by sharing with noble Lords the picture that comes irresistibly to mind of the bus with the Minister comfortably and sedately sitting on the top deck, the conductor being the Government Chief Whip and the driver the Home Secretary, with hair all over the place, driving into the brick wall of an election—hopefully.
§ Baroness Blatch
As my noble friend Lord Carlisle has pointed out, for a sentence of less than four years the 60 per cent. formula will result in a prison term closer to the term that would currently be served than the two-thirds formula in Clause 22 as it stands. There is no dispute about this. Arithmetically, 60 per cent. would produce a more accurate and precise approximation to the status quo than two-thirds for prisoners serving less than four years.
But Clause 22 cannot be regarded as simply an arithmetical exercise. It is part of the sentencing process and accordingly has to be readily understood by the public and offenders and easily operated by the courts. From that perspective the 60 per cent. formula proposed in this amendment is considerably less satisfactory than two-thirds. I shall explain why.
Prison sentences are typically imposed by the courts in multiples of three months: that is to say, three months, six months, nine months, 12 months, 18 months and so on. To ask a judge or magistrate to impose a sentence equal to two-thirds of the sentence that he would previously have imposed is therefore an easy calculation to make and results in a perfectly sensible result. A sentence of 12 months becomes eight months; a sentence of 18 months becomes 12. But to ask a judge or magistrate to sentence at the 60 per cent. level is a very different matter. A 12-month sentence would translate into seven months and six days, while an 18-month sentence would become 10 months and 24 days. Such a result would plainly import a somewhat spurious degree of precision into the sentencing system, but that is exactly the result that the amendment would have if strictly applied. It is in my view an unnecessarily complicated piece of fine tuning.
Our objective in framing Clause 22, as amended, is to provide the courts with simple, sensible and straightforward guidance on how to take account of the changes in early release arrangements. In my view that is exactly what Clause 22 now does. By contrast, the 60 per cent. formula proposed in this amendment would add considerable complexity to the Bill. It would create two slightly but not significantly different systems for adjusting sentences, depending on whether the court would previously have imposed a sentence of less than four or more than four years. This is likely to lead to confusion and uncertainty. If strictly applied it will result in what can best be described as very untidy sentences. What we have set out to do in Clause 22 is to provide the courts with simple and practical guidance which will result in a reasonable approximation to current effective sentence lengths.
In reply to my noble friend Lord Hacking, there is no contradiction in what my right honourable friend the Home Secretary said at the conference. Five years 676 should mean five years. When the proposals in the Bill are up and running, five years will mean, both to those in the court and the public who look on, five years. That will be altered only by the number of days earned by the defendant himself under the early release scheme. Remand will be spelt out in court, unlike now when it is spelt out in prison and can create even more confusion. The important thing is that the sentence shall be more closely related to that which had been given.
Secondly, with regard to what my fellow bus passengers will say, in all my moving around the country, and I do a good deal of it, I have not yet met anyone during my visits who would agree that an offender should receive a sentence of perhaps 10 years, be eligible for release at five years and be automatically released at the two-thirds point. People simply do not support that. That is being said to me day after day after day. If Members of the Committee oppose me in that view, they obviously do not travel in buses, or certainly do not travel up and down the country meeting some of the people whom I meet. It is the most strongly held view that people receiving a sentence walk free from courts frequently at the halfway point of sentence. People do not always see too much evidence of what happens to them post-release, especially those who walk free from sentences of less than four years.
I am puzzled and somewhat amused by the constant references to the fact that judges will not feel it possible to reduce the sentence, they will not feel able to do so, they will go up tariff. I have been arguing on occasions that we should trust the judges. The judges believe at this moment that only a certain amount of a custodial sentence should be served; they know when they pass the sentence what that should be. We have taken custody and supervision together, and custody and supervision together will certainly add up to a sentence at least comparable to and slightly tougher in some cases than the present situation. Therefore, it is appropriate that the judges should look at the two-thirds formula. I have said that it would be easy to apply.
As for the poor lost souls—these judges who will be all at sea because they were newly appointed post the Bill—I have to ask, what does a newly appointed judge do now? He looks across at his fellow judges; he has guidance; he has books to which he can refer. I do not know whether judges learn on the job or whether they have some training before they go into the courts, but the truth is that judges will always come newly into the system and will always have to pick up whatever the sentencing formula is at the time.
Reference was made by my noble friend Lord Hacking to the fact that the Government's proposals would mean that different sentences would be attracted for the same offence. That happens today. In fact, because the judges have such discretion—and we have limited it to a very small extent in Clauses 1, 2 and 3 of the Bill—they will hear similar offences in different parts of the country, and people will receive different sentences. We have always said, "Vive la différence" in that sense, that it is the judge's view about what the sentence should be. We are saying that if the judge, as indeed, the noble Viscount, Lord Colville, said earlier, wished to apply under the present system the longer 677 sentence, he would take that into account, apply the two-thirds formula and then pass the sentence. I see no difficulty with that at all. We do not see these judges as being all at sea or lost souls under the new system.
The amendments were used as a mechanism for making different speeches. The noble Lord, Lord McIntosh, was right; the speeches that have been made have borne very little relationship to applying the 66 per cent. formula. I have to say that we would not wish to see the differential. We believe that taking the general two-thirds formula would make it much easier for the courts to apply.
§ Lord Carlisle of Bucklow
Despite the lateness of the hour, perhaps I might make two points. The first is to say that I expected the answer that the noble Baroness gave; I was not surprised by it. I made it clear that my purpose in moving the amendment was not seriously to expect that the Government would accept it, but to point out what I saw to be the illogicality in the clause. Of course, I accept her answer on that point.
The other point I wish to make to the Minister is a serious one. It is something which has worried me more and more as the day has gone on. The Minister repeatedly said, and I accept it, that the public are outraged that people are sent to prison and come out so early. First, I wonder whether that is their outrage or whether it is the length of the original sentence. When one hears someone say, tragically, that the death of his child was caused by dangerous driving and that the 678 person concerned received only two years, which means he will be out in 18 months, I am not sure whether his outrage will be assuaged if in future the court gives only 18 months. I am not sure that it is the difference between the sentence passed and what is served. I believe that the outrage is caused by the length of the sentence passed.
The point which sadly divides us on this side of the Committee—certainly myself, the Minister and the Home Secretary—is the repeated comment that today people are outraged at the suggestion that the person sentenced to three years will come out after 18 months. They say, "It is absurd, it is ridiculous, it is outrageous". I repeat that we have had a system of early release since 1837. Until 1992 people were coming out having served one-third of the sentence rather than today having served one-half. Why have people suddenly become outraged when they have not been outraged during the previous 90 years? I believe that, to an extent, it is because in various ways—I cast no aspersions—they have been conditioned to he outraged. The system was accepted and was working perfectly well until the matter came to the forefront of the political debate. I shall not carry out my threat to divide the Committee. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 22 agreed to.
Clause 23 agreed to.
House adjourned at eighteen minutes past eleven o'clock.