§ (" . It shall be a defence for a person accused of an offence under section 8 of the Misuse of Drugs Act 1971 (occupiers etc. of premises to be punishable for permitting certain activities to take place there) that he did not wilfully permit an activity under that section to take place.").
§ The noble Lord said: This is the miscellaneous chapter in Part III. The amendment raises a new issue. It refers to Section 8 of the Misuse of Drugs Act 1971, which makes it an offence for the occupier or any person concerned in the management of any premises knowingly to permit or suffer the use of drugs on their premises.
§ The reason for the amendment derives from a case which achieved some publicity in Cambridge recently where Members of the Committee will recall that a charity which was providing services to the homeless in Cambridge, including an open access drop-in centre offering cheap food, washing facilities, free clothing, support and advice and so on, was the subject of a police investigation.
§ In that case a trial took place at the King's Lynn Crown Court at the end of 1999 and leave to appeal has been granted against the sentences imposed there. The appeal has not been heard.
§ I do not propose to address any remarks to that appeal because, of course, the appeal will be determined upon the wording of the Act as it presently stands. I do not feel that I shall in any way embarrass the Court of Appeal by moving this amendment.
§ The purpose of the amendment is to replace the word "knowingly" permit with "wilfully" permit. The circumstances at which this amendment are aimed are these. All over the country there are day centres and centres for homeless people which are attempting to do something to assist and rehabilitate people who have drug problems. It is inevitable that the people whom they are trying to help will, from time to time, bring drugs into the premises and may consume them, or attempt to do so, in different ways.
§ It is almost impossible to deal with people of that nature without risking the provisions of Section 8 of the Misuse of Drugs Act as it now exists. The purpose of the amendment is to make it a criminal offence if, and only if, there is an element of willful 1618 encouragement involved in the person who is charged with this offence under Section 8 of the Misuse of Drugs Act.
§ In order to take this opportunity to right what may not be a particularly satisfactory criminal provision, I beg to move this amendment.
§ 9.15 p.m.
§ Lord Bassam of Brighton
The amendment moved so eloquently by the noble Lord, Lord Thomas of Gresford, may have a seriously adverse effect on the number of successful prosecutions against owners and those concerned in the management of premises by providing a defence for those who did not take adequate measures to prevent the production, supply or use of illegal drugs on their premises.
Further, innocent occupiers of premises are already adequately protected, in our view, by the elements of "knowledge" and "permitting" in the Section 8 offence. Section 8 of the Misuse of Drugs Act 1971 recognises as serious offences per se the connivance of those in charge of premises to allow the unlawful production, supply or consumption of controlled drugs to take place there.
Section 8 of the Misuse of Drugs Act 1971 makes it an offence for an occupier or person concerned in the management of premises knowingly to permit certain specified actions to take place on those premises; namely, the production or attempted production of a controlled drug, the supply or attempted supply of a controlled drug or the preparation of opium for smoking or the smoking of cannabis.
Section 8 replaces a similar section in the Dangerous Drugs Act 1965 and was drafted specifically to ensure that only a person with guilty knowledge can be caught by its provisions.
Section 8 as currently drafted does, we think, quite properly require those concerned in the management of premises to accept responsibility for taking all reasonable steps that are available to them to prevent drug dealing.
The Misuse of Drugs Act 1971 currently provides no special defences in relation to Section 8 offences. The suggested new clause, which provides a defence that the person concerned did not act "wilfully", could weaken those provisions. It would certainly make them less clear. It could enable owners and managers to argue that, although they had guilty knowledge of the illegal activity, they had not permitted it wilfully, for example, by showing that they had perhaps taken some half-hearted, but not all reasonable, measures to prevent the production, supply or use of illegal drugs on their premises.
The precise intention of the amendment is far from clear. If it is designed to protect the occupier who does not know about the illicit activity or who, despite his best efforts, is unable to prevent it, the amendment is unnecessary and makes the existing protections less clear. Alternatively, if it is designed to limit the offence to occupiers who positively encourage such use of their premises, I suggest that it represents a significant 1619 weakening of the criminal law in this area. In any event, it obfuscates and confuses. We believe that clarity is crucial in the drafting of criminal offences.
I am well aware of the prosecution of Ruth Wyner and John Brock. However, I do not believe that it would be appropriate for me to comment on that for the very reasons that the noble Lord has described.
I do not believe that we can accept the amendment. It would not be proper and, from our point of view, it would weaken significantly an important part of the criminal law.
§ 9.30 p.m.
§ Earl Russell
I listened with much interest to the Minister. He made a serious attempt to engage with the argument of the amendment. However, I believe that there is a certain circularity in his arguments. He says that the amendment might prevent a number of prosecutions which are brought at present. In effect, he is saying that the effect of the amendment might be to alter the law. However, that, of course, entirely begs the question of whether the law should be altered, and it entirely begs the question of whether all the prosecutions which are brought at present should be brought.
It is a very high priority of this Government, and of the Prime Minister in particular, to get homeless people off the streets. We accept that priority, but it entails providing them with somewhere else to go. We have a situation where the use of drugs among large sections of the population is extremely common. We also have a situation where one cannot impose many sanctions against someone who has no home, no property and no regular source of income; that person has nothing on which any of the regular sanctions can purchase.
Therefore, people who are in charge of hostels for the homeless may be confronted by a situation in which either they must know that drugs will on occasion be consumed on the premises, although they may not know by whom, or, in order to prevent that, close the place down altogether.
My late friend Lady Seear used to say that politics was always a matter of choosing the lesser of two evils. In this situation I would not have great difficulty in deciding which I considered to be the lesser of two evils. Does the Minister have an opinion as to which of those two evils would be the lesser?
§ Lord Bassam of Brighton
I accept that the noble Earl places a very interesting dilemma before us. However, our concern is to ensure that we have effective law to deal with the drugs menace. I have made a case which is clear: we believe that the amendment would significantly weaken the criminal law. We believe that the criminal law is necessary; it sets a standard.
Of course, the circumstances that the noble Earl describes present certain problems for those who run 1620 such institutions. However, we have put a great deal of resource into trying to tackle homelessness. We believe in getting people off the streets. This piece of legislation does not prevent us pursuing that policy. We believe that the legislation is entirely necessary and we are content with it as it is.
§ Lord Thomas of Gresford
The essence of the dilemma to which the noble Lord referred is this: he says that the offence is guilty knowledge of the use or consumption of drugs by an occupier on the premises. However, that rather begs the question of whether that is guilty knowledge because the statute is in its present form. Is it in the public interest that a person who does his best for the community by taking homeless people off the streets and providing a roof over their heads takes a risk that they will use or consume drugs because that is their way of life? Is it in the public interest that that person is committing a criminal offence simply because he knows that that is happening, or should not there be an additional element of wilfully consenting to it happening?
I can see the utility of a criminal offence that is based upon the wilful consent to the use or consumption of drugs upon premises. However, I cannot see the utility of evicting people from homes that are provided by charities simply because the person knows that drugs are being consumed or used on the premises. That is the argument. I hope that the Minister will consider the matter.
§ The Earl of Listowel
Before the noble Lord withdraws his amendment, perhaps I may intervene. I remember interviewing a mental health nurse at a hostel for homeless drug users in Kings Cross. Two of her mental health nurse colleagues had resigned in the course of the year because of the immense pressure that the staff in the hostel experienced. Young people would congregate in the office around the workers, desperate for their attention. I am concerned that people like that worker, who is a single mother but absolutely devoted to her clients, would be put in the position in which they are concerned as to whether they may be breaking the law, although they are doing their best for the young, desperate people. Has the Minister any way of reassuring people in that situation that they can carry out their job without undue anxiety?
§ Lord Thomas of Gresford
I am grateful for the support of the noble Earl. He has highlighted the problem that exists. Can those in the position of the young nurse to whom he referred have any confidence that they will not be prosecuted and risk a substantial prison sentence? I do not want to refer unduly to the case in Cambridge, but it resulted in a five-year sentence of imprisonment. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 54 agreed to.1621
§ Clause 55 [Life sentences: tariffs]:
Lord Williams of Mostyn moved Amendment No. 133:
Page 37, line 16, leave out from ("shall,") to end of line and insert ("unless it makes an order under").
§ The noble and learned Lord said: This group of amendments includes Amendments Nos. 133 to 138 inclusive. The purpose of Clause 55 is to bring our law into line with a key conclusion of the European Court of Human Rights in its judgment in the case of Thompson and Venables. As the Committee knows, those were the convictions following the cruel murder of James Bulger in February 1993.
§ Under Clause 55, in line with the judgment, where a court convicts a person who is under the age of 18 of committing murder it will be for the court to determine the tariff to be served. We achieve that by amending and extending the provision in the Crime (Sentences) Act 1997, which provides for courts to set tariffs in cases which involve discretionary life sentences.
§ The first three amendments—Amendments Nos. 133, 134 and 135—are to ensure that it is clear for all possible cases that an appeal can lie against the period that the court specifies.
§ The proposed new Section 82A, which reflects the position under the 1997 Act, leaves scope for a court to conclude, in appropriate circumstances, that life should mean life and, therefore, no determinate tariff should be set. Plainly, those would be very rare cases, but it would be of enormous importance in an individual case. It is vital to ensure that an appeal is possible. Under Section 82A as it standsthere is some doubt about that. Amendments Nos. 133, 134 and 135 therefore recast subsection (4), with the result that the court must give an order whether it is setting a determinate tariff or has concluded that no determinate tariff should be set.
§ Subsection(5) relates to juveniles and whole life tariffs. Amendments Nos. 136, 137 and 138 relate to that subsection).
§ Section 82A provides for a sentencing court not to set a determinate tariff if it concludes that the seriousness of the offence means that no such tariff should be set. That follows the scheme of the 1997 Act under a practice direction on tariff setting issued by the Lord Chief Justice some time ago.
§ It is extremely difficult to envisage circumstances where a court might draw such a conclusion when the offender is under the age of 18. It is just possible, in an extreme case. We do not want to leave a possible gap and therefore subsection (5) ensures that the Parole Board still has the determinative role in the release of such an offender.
§ There are two aspects of the subsection which need to be addressed. First, when will it come into play? At the moment it is linked to the sentencing court concluding that life should mean life. But it needs to be clear that it does not apply where the Court of Appeal Criminal Division subsequently overturns that conclusion and substitutes a determinate tariff. 1622 Amendment No, 136 will have that effect by linking Section 82A(5) to cases where a conclusion that life should mean life currently stands.
§ The second point is the approach to be adopted by the Home Secretary. We have drawn on the policy that applies to those over 18 given whole life tariffs as set out by the then Home Secretary, Michael Howard, on 7th December 1994 and my right honourable friend Mr Straw on 10th November 1997. But there are particular considerations that arise when dealing with juveniles.
§ Should a court ever consider that life ought to mean life for a juvenile offender, the case should be reviewed by Ministers after 15 years as compared with 25 years in the case of an adult offender. The review would need to consider the needs of retribution and deterrence and take into account any exceptional circumstances, like exceptional progress in custody, bearing carefully in mind the youth of the offender when the offence was committed and the importance, of course, of having proper regard to a child's welfare. It would be open to the Home Secretary in assessing the extent to which the needs of retribution and deterrence had been met, to consult the Lord Chief Justice of the day for his view.
§ Further reviews would be conducted every five years. The Home Secretary would be open to representations at any point, before or after the initial review, that a review should be held earlier than scheduled, perhaps for example because of exceptional progress in custody, bearing in mind the youth of the offender, or where there were any other exceptional circumstances viewed in the same light.
§ Once a ministerial review resulted in a determinate tariff being imposed, a direction would be given under. Section 82A(5) to enable the Parole Board to determine release under the early release provisions in the Crime (Sentences) Act 1997 after the expiry of the set period. We believe that it needs to be clear that a determinate tariff will not be fixed by the Home Secretary under Section 82A(5) until that is appropriate, and that he will follow a particular policy, which I have sought to outline, for doing so. That is the purpose of Amendments Nos. 137 and 138.
§ I appreciate that the explanation has been a little lengthy. But there is significant public interest not only in this case, but also in these matters and I felt it appropriate. I beg to move.
§ 9.45 p.m.
§ Lord Windlesham
There is no need for the Attorney-General to apologise for the length of his remarks. It was their complexity that I found difficult to follow. I should like to put this series of amendments into a wider and, in some sense, more political context.
1623 These amendments are part of a long-running conflict between the executive branch of government and the judiciary over the period of time to be spent in custody by offenders who have been convicted of very serious offences which have attracted sentences of life imprisonment. Indeterminate sentences of this kind, over the years, have become effectively hybrid because of differing views as to who should be responsible for taking crucial decisions on when a life sentence prisoner should be released on licence, and on what authority. Unless the penalty is fixed by law—and that now applies only to the single offence of murder—the life sentence is at the discretion of the court. The court determines, case by case, the tariff—that is, the period of time—to reflect the gravity of the offence and the culpability of the offender.
The main battleground has been over who should take the final decision to release a prisoner from custody at the expiry of the tariff, or to continue to detain him in prison. One of the alternatives is the Home Secretary. How does he decide? Has he met the offender? No. Has he seen him in court? No. He has seen only the papers. He must decide on paper, and inevitably will take into account the political and public anticipated reaction.
Or should the decision be taken by a discretionary life sentence panel of the Parole Board after interviewing the prisoner? The prisoner is legally represented in the prison where the hearing takes place, there is a judicial chairman of the panel, and reasons are given. It is a quasi-judicial process to decide when a prisoner serving life imprisonment can safely be released, and what the risk and the danger might be.
Bit by bit, the Home Secretary's authority to take these decisions personally has been eroded, now leaving only adults who have been convicted of murder. That in itself is a large and controversial issue. It was the subject of a Select Committee of this House, chaired by Lord Nathan, in the 1980s, of which I was a member, and subsequently of another independent committee, chaired by the noble and learned Lord, Lord Lane, a former Lord Chief Justice, of which I was also a member. So there was a time when I was a great deal more familiar with these issues than I am today.
Clause 55 changes the way in which tariffs will be set in cases of detention during Her Majesty's Pleasure—that is, for young offenders under the age of 18—and also provides for the sentencing court, rather than the executive branch of government, to decide how long the period in custody should be before the case can be referred to the Parole Board.
The change was not volunteered by the Government. Decisive power in this field, as in others, has seldom been handed over willingly, but in order to comply with a decision of the European Court of Human rights in the case of UK v. Thompson and UK v. Venables last year. That case, as others before it, were brought by the well-known and highly regarded civil 1624 liberties organisation, Justice. Justice has now raised some questions about the need for, and effect of, these amendments. It comments on Clause 5 that:Subsection 4 effectively applies the rules for adult discretionary lifers in the Criminal Justice Act 1991 to discretionary HMPs"—that is, prisoners serving sentences at Her Majesty's pleasure. It continues:That is that there are some cases that are so serious that tariffs can't be fixed: they become whole life tariff cases. This is inconceivable for an under 18 year old, and would automatically be an appeal point. No judge should be making such a recommendation.If that is right—and we cannot think what else it can mean—then subsection 5 is otiose, as there is no room for an administrative tariff. The [government] amendment seems to take us even further off the track".
I believe that my noble and learned friend Lord Mayhew of Twysden may also speak on this aspect, since both he and I have had contact with Justice, and perhaps we may have the opportunity of hearing again from the Lord Chief Justice.
§ Lord Mayhew of Twysden
I have little to add to the remarks of my noble friend Lord Windlesham. The provisions in the draft amendment are extremely difficult to navigate and, at best, confusing. Notwithstanding the explanation given by the Attorney-General—he has no reason to apologise for its length—perhaps there are grounds for reconsidering the drafting. As I understand the Attorney, the Government wish to cater for a case in which a court, when dealing with an offender who was under the age of 18 at the time of the offence, considers that an appropriate disposal is the recommendation of a whole life term of imprisonment.
I endorse what has just been said by my noble friend. It is inconceivable that a court should think it right to make a whole life recommendation in respect of someone who is under the age of 18. I speak with the utmost diffidence in the presence of the Lord Chief Justice. I would have thought that such a decision would be overturned on appeal. In those circumstances, one wonders whether it is right to legislate in this way when it may well give rise to the inference that in the Government's thinking that may be an acceptable disposal (to use the current word). If that is right, I am obliged to agree with Justice that subsection (5), whether as drafted or as proposed to be amended, is superfluous, because in such a case there is no room for an administrative or ministerial tariff. I am prepared to believe that I have misunderstood the position—indeed, I hope that I have—but in the latter event I pray in aid that the language is none too clear.
Finally, I invite the Committee's attention to the criteria in new subsection (5A), which is inserted by Amendment No. 138. The wording could hardly be more open-ended or wide:The appropriate stage, for the purposes of subsection (5) above, is when the Secretary of State has formed the opinion, having regard to any factors determined by him to be relevant for the purpose, that it is appropriate for him to give the direction".1625 I do not see how that can be more at large. Surely, there should be some restriction or specification of the matters which the Secretary of State can take into account. I should be obliged if the Attorney-General could refer the Committee to any precedent in the enormous existing corpus of legislation which the Government would follow.
§ Lord Williams of Mostyn
I am grateful for those responses. As I said at the outset, this is a legislative scheme of amendments that is designed to bring into effect the consequences of Thompson and Venables. I said—perhaps not sufficiently clearly—that it was extremely difficult to envisage circumstances in which a court might draw a conclusion that a whole life tariff was appropriate in the case of someone who committed an offence, or series of offences, under the age of 18. It is possible in an extreme case that someone who has almost reached the age of 18 commits a series of murders where a whole life tariff is appropriate.
It is necessary to point out the virtue of the thinking behind the amendments. As the noble Lord, Lord Windlesham, said, the intention is to take away executive discretion and lodge it more appropriately with the courts, which was the conclusion of the European Court.
We have also carefully provided for an appeal process. I do not believe that there is any difference in purpose between the noble and learned Lord, Lord Mayhew of Twysden, the noble Lord, Lord Windlesham, or the case that I have expressed. I am more than willing to see whether the drafting can be improved if that is consonant with the policy aim that I have expressed on behalf of the Home Secretary. This is a measure which gives more power to the judiciary, which many would think appropriate whether or not the European Court had come to its conclusion in Thompson and Venables.
With my noble friends Lord Bassam and Lord Bach, I shall give thought to whether or not we can get a clearer and perhaps more limited discretion in the context of what the noble and learned Lord said. I gather from the sense of the Committee that our aim is the same. If we can improve the wording we are more than happy to listen to alternative suggestions.
§ On Question, amendment agreed to.
Lord Williams of Mostyn moved Amendments Nos. 134 to 138:
Page 37, line 34, leave out from beginning to ("is") in line 36 and insert ("If the court").
Page 37, leave out lines 40 to 42 and insert ("the court shall order that, subject to subsection (5) below, the early release provisions shall not apply to the offender").
Page 37, line 43, leave out ("excluded by subsection (4) above") and insert ("where an order under subsection (4) above is in force").
Page 37, line 45, after ("shall") insert ("at the appropriate stage").
Page 38, line 2, at end insert—
("(5A) The appropriate stage, for the purposes of subsection (5) above, is when the Secretary of State has formed the opinion, having regard to any factors determined by him to be relevant for the purpose, that it is appropriate for him to give the direction.").
§ The noble and learned Lord said: These amendments have already been spoken to. I beg to move.
§ On Question, amendments agreed to.
§ Clause 55, as amended, agreed to.
§ Clause 56 agreed to.
§ Clause 57 [Release on licence etc: conditions as to monitoring.]:
§ 10 p.m.
Lord Bassam of Brighton moved Amendment No. 139:
Page 40, leave out line 9.
§ The noble Lord said: In moving this amendment, I shall speak also to the new clause, which is Amendment No. 146, and Amendments Nos. 141 and 156.
§ Before dealing with the detail of the amendments we are bringing forward in this part of the Bill, it may be helpful and useful to the Committee if I explain briefly the background to the proposals and why we are asking the Committee to consider such a major set of new measures so late in the passage of the Bill. First, I must acknowledge that we are asking a great deal in bringing forward these measures at this stage. But we feel it is justified. That is partly because events over the summer have demonstrated the urgent need to reassure the public that measures are in place for protection against sex offenders. The police, probation and other services work tirelessly—do they not?—to protect the public against such offenders who may often be some of the most dangerous members of our society. I should like to pay homage to their hard work and endeavours.
§ The measures we propose are in no way critical of their work. But there is a clear and pressing need to explain better to the public what goes on at present, often without their knowledge. We also think that it will provide a better, stronger framework for public protection and put the matter on a statutory basis.
§ Secondly, there are some measures which we believe we can enact now, which will give the police and other services better tools to deal with such serious sex offenders. Some of those are measures which we feel we can bring forward in advance of the major review of the Sex Offenders Act that we set up earlier in the summer. I must stress that that review will press forward and, hopefully, complete its work by the end of the year. But where we can legislate now to improve the Act, we feel we should do so. There are other measures, such as the proposed new sex offender restraining order which are new, although they build on concepts in existing legislation.
§ This then is the package of new measures we are asking the Committee to agree should form part of the Bill. In memory of Sarah Payne, whose parents have campaigned so courageously for reform, we see the new measures as a "Sarah's Law".
§ Finally, at this stage I should say a brief few words about what areas of the Sarah's Law campaign we do not consider it would be right to bring forward to the 1627 Committee. "Naming and shaming" is not the way forward; the risks are all too evident. That approach jeopardised the arrangements in place to monitor sex offenders and to protect children from them rather than improving the protection of children; nor would "controlled access" to the sex offenders' register improve public protection. It is difficult to see how such a system could allow solely parents or other concerned and responsible individuals a right of access to information about individual sex offenders while retaining control of the information.
§ Decisions about disclosure must be taken on a case-by-case basis by the police and probation services. We believe, however, that parents and the public have a right to more information about the way sex offenders are managed in the community, the safeguards that are in place and the part they can play in enforcing those safeguards. That is why we are creating a statutory duty on the police and probation services to establish arrangements for assessing and managing risks posed by sexual and violent offenders. That will be coupled with guidance by the Home Secretary about those arrangements and, in particular, about the publication of information. That information might include, for example, details of the number of registered sex offenders in the police force area; programmes which exist for managing sex offenders; the number of times disclosure of information about sex offenders has taken place to organisations and individuals; and the type of organisation to which disclosure has taken place—perhaps schools. The police and probation services will enter into dialogues with local communities on the basis of this information.
§ We are also creating a new duty on the local probation board: first, to consult the victims of sex and violent offenders about whether they want to comment on the terms of the offender's release; and, if so, whether they wish to be informed of or propose any conditions which relate specifically to them. There is also a whole raft of amendments to the Sex Offenders Act 1997, which serve to tighten the protection afforded by that Act and add additional protections.
§ I shall now turn to discuss in more detail the measures we are bringing forward. The new clause constitutes the second main element of our proposals designed to ensure that the public are properly aware of measures being taken to safeguard them from sexual and other violent offenders. In particular, the new clause is about ensuring that the person most affected by these offenders, the victim, can receive information about and comment on the conditions or requirements to which the offender is to be subject on release.
§ The Probation Service's work with victims is vital. It can be enormously helpful in assisting victims in their struggle to rebuild their lives. Access to information about an offender's release conditions can prevent victims feeling isolated by the criminal justice system and alleviate any fears they may face over an offender's impending release.
§ The recent thematic inspection "Ensuring the Victim Matters" commended the Probation Service on its excellent work with victims of crime, which it 1628 undertakes with great commitment, sensitivity and understanding. However, the report indicates that the current arrangements do not go far enough and suggests that many victims of serious crime are often overlooked. The new clause therefore builds on the existing non-statutory arrangements and creates new statutory duties on the local board.
§ First, in the case of all offenders sentenced to 12 months' imprisonment or more for a sexual or violent offence, the local board for the area in which the offender is sentenced will be under a duty to take all reasonable steps to ascertain whether the victim wishes to make representations as to any conditions to which the offender should be subject when he is released. Victims will also be asked if they wish to be informed about "their" offender's release and any conditions that apply to it. Then, where the victim has requested information, the local board must provide details of relevant conditions to which the offender is to be subjected on licence. So, for example, victims will be informed if the licence contains a condition not to go within a certain radius of the victim's home.
§ This duty goes far wider than under the current arrangements. It will provide greater protection and reassurance both to victims and to the general public. It is a move which will be welcomed by the service, many members of which are keen to offer assistance to more victims of offenders than are affected by the current requirement for a four-year sentence, and in some cases have already put arrangements in place to that effect.
§ The change will be supported by new, comprehensive guidance to help services provide a new, nationally consistent and improved standard for victims.
§ Finally, we acknowledge that the widening of victims' work will carry some funding implications for the service. The service will therefore welcome the additional resources that the Government will be making available to enable the service to respond to the demands of this new work.
§ What we are not doing, however, is requiring the Probation Service to give full details of the offender, such as his address, to the victim. There can be no legitimate reason for this and it is no part of our agenda to encourage reprisals or vigilante activity. This new clause concerns protecting and reassuring victims, not putting at further risk offenders who have been rightly punished through the criminal justice system.
§ The new duty also signals the way for the creation of a new national Probation Service for England and Wales that is confident about its ability both to supervise offenders effectively and to respond to the needs of victims.
§ Perhaps I should also mention that the other provisions of this part of the Bill apply to dangerous offenders released on temporary licence. However, we are not placing a duty on the Probation Service to notify victims in cases where a dangerous offender is released on a short period temporary licence. Where the licence period is only a day or so, for example to 1629 allow an offender to attend a funeral, to require statutory notification to the victim in all cases would be impractical and inappropriate. We do intend, however, in secondary legislation made under the Bill, to maintain the current position whereby services will have discretion to notify victims of periods of temporary release where they judge it appropriate and necessary for the protection of the victim.
§ I hope that I have given a clear exposition of the new clauses and their implications. I beg to move.
§ Lord Thomas of Gresford
Can the noble Lord explain the thinking behind subsection (2) of the new clause? Am I entirely wrong or do I understand it to state that the clause does not apply where an offence is a sexual or violent offence, first, because it is an offence against a child and, secondly, that the sentence in respect of the offence against a child is imposed by a magistrates' court as opposed to the Crown Court or the Court of Appeal? I do not follow the thinking here.
§ Lord Bassam of Brighton
I am grateful to the noble Lord for that question. I shall need to study his comments and consider them further. These are not points to which I should like to give an off-the-cuff response.
§ Lord Windlesham
I should like to raise some points on behalf of Victim Support, of which I have the honour to be president. I declare an interest in that respect.
Victim Support has pointed out that, while welcoming the fact that this clause will, for the first time, confer statutory rights on victims of certain offences, it is concerned that the clause seems to provide for less than the current Probation Circular 61/95. Victim Support would not want victims of crime inadvertently to become worse off after the legislation comes into force than they are at present.
Four points have been made to me in a letter and I shall put them to the Minister as quickly as possible. I hope he will take them back to the Home Office and arrange for them to he looked at in some detail. First of all, the word "representations" has not been defined in the clause. The letter states that,we would be concerned if this would require victims to make their information available in person, for example, at a Parole Board [hearing] because of the implications for their safety. (Current arrangements allow for the victim's concerns to be incorporated in the probation officer's report). Subsection (5) would appear to allow for present arrangements to continue but this is not explicit. Would another term make this clearer or could a definition be added?It is important to ensure that the wording of this new clause does not unintentionally pose risks for the victim.
The letter continues:Sub-section 3b seems to be inconsistent with sub-section 6b. Sub-section 3b allows for the victim to receive any information about conditions or requirements of the offender whereas subsection 6b appears to restrict such information to conditions or requirements which relate to contact with the victim or his family".1630 The third point is that,The clause does not include the possibility for the victim to be offered information about the sentence prior to the pre-release stage. This is stipulated in paragraph 7 of PC61/95"—that is the probation circular—which refers to victims being offered general information about the custodial process and post-release supervision, and the likely timescale for consideration of release on licence or temporary licence in the case concerned".The final point is that,Section 6c seems to provide a degree of discretion to the local board on a case by case basis as to what information is given, rather than the current right detailed"—in the probation circular—under paragraph 15 which states that the victim should be given notice of the month and locality in which release will take place".I appreciate that these are relatively technical amendments, but we must remember that they can have human effects. I suggest that the noble Lord does no more than ask the officials in the Home Office—whose co-operation Victim Support greatly appreciates—to look into these matters and to sit down with representatives of Victim Support to talk them through.
§ Lord Dholakia
I live within a radius of 10 miles of where Sarah Payne was murdered. It was almost a personal grief to see what happened to that child. I am sure that all sides of the House share the pain that Sarah's parents must have gone through.
I welcome the news that the News of the World has at last abandoned its name and shame campaign. That campaign has contributed to an atmosphere in which lawlessness has flourished, innocent members of the public have been targeted by vigilantes and offenders have gone to ground fearing reprisals. In all, it has done considerable damage and subjected some unfortunate members of the public to truly terrifying ordeals.
I should perhaps declare an interest as chair of NACRO. We are pleased that the joint approach in which NACRO has been involved with the Home Office has shifted the discussion onto a sensible footing, and we are in agreement with many elements of the "For Sarah" campaign. Indeed, NACRO has long called for a number of measures to reduce the risk of child abuse, including a massive public education campaign on child abuse and how to minimise risk, closing loopholes in current legislation, and sentences that would mean dangerous paedophiles would not be released from prison until they no longer posed a danger to children.
There will always be occasions when members of the public will be rightly warned about dangerous individuals in their area. The police already have powers to do this, and we would support greater clarity over how these powers are to be used. But if the events over the past few weeks have shown us anything, it is the folly of thinking that all members of the community will use information about sex offenders in a responsible manner.
1631 I think the Home Office is right to propose an amendment which is the right way forward.
§ Baroness Blatch
Perhaps I may ask the Minister whether what he said subsumes my concerns in Amendment No. 155. For a long time the Government have been calling for victims to receive more information, but more information about the progress of the prosecution of the case in which they are involved. I would be reassured if everything I was concerned about in the amendment has been subsumed.
In rising to put this point, perhaps I may also express support for my noble friend Lord Windlesham. It would be disappointing, to say the least, given all the good intentions of attempting to do much more for victims, if the sum total achieved were to be a lesser service than they have hitherto received under the circular issued in 1995.
§ 10.15 p.m.
§ Lord Bassam of Brighton
I can now give a response to the noble Lord, Lord Thomas of Gresford. It is a fairly obvious one, and I am sorry that I did not "twig" it earlier. The provision will not apply to magistrates' courts because their sentencing powers are restricted to six months maximum. That is the simple explanation. We ought both to have known that, but I am sorry that I was not able to give the noble Lord the answer first off.
I have listened to the points made by the noble Lord, Lord Windlesham. We shall examine them carefully. I do not think that the concerns of the victim support organisations are quite right; however, I am grateful that the noble Lord has taken the opportunity to raise them. In regard to the points raised by the noble Lord, particularly his reference to subsections (3)(b) and (6)(b), I see one as an amplification of the other. We need to take the matter away and give it further consideration.
The noble Baroness, Lady Blatch, raised a point in relation to her Amendment No. 155. There is no intention that the level of service should be reduced and the new statutory duty will be on top of the existing guidance. I believe that that covers the point made by the noble Lord, Lord Windlesham. On a cursory inspection of the amendment, I believe that the matters the noble Baroness raises may well be subsumed within it. However, I do not want to be definitive. I need to reflect further. We are grateful to the noble Baroness for tabling the amendment. It is helpful and is supportive of the general drift of what we are trying to achieve with the new clauses introduced by these amendments.
I cannot deal with every point raised. We shall clearly need to return to these matters. If there are some improvements that we can make as a result of the issues raised from all corners of the Chamber, we shall of course endeavour to do so.
1632 I am grateful to the noble Lord, Lord Dholakia, for his observations. I, too, live not far away from the area where the unfortunate events concerning Sarah Payne took place. They certainly had a profound impact on my family and the people with whom I mix in that community. These measures will go a long way to give the necessary reassurance to the public, together with amendments that we shall debate later this evening.
§ Baroness Blatch
Before the noble Lord sits down, I shall not press my amendment and I shall not speak to it again when we come to it. However, I should like to say that it was not a question of reducing the effects of the amendment. The prosecuting authorities did not have the obligation in the first place to provide information on the progress of the prosecution. I should like to know whether that new obligation on the part of the prosecuting authority is subsumed; and, if it is not, could it be subsumed in any new arrangements?
§ Lord Bassam of Brighton
I am grateful to the noble Baroness. I give an undertaking to inquire whether that makes good sense. If it does, clearly we need to include it.
§ On Question, amendment agreed to.
§ Clause 57, as amended, agreed to.
§ Clause 58 agreed to.
§ Clause 59 [Release on licence etc: drug testing requirement]:
Lord Bassam of Brighton moved Amendment No. 140:
Page 41, line 20, after ("regulations") insert ("made by the Secretary of State").
§ The noble Lord said: I have already spoken to this amendment. I beg to move.
§ On Question, amendment agreed to.
Lord Bassam of Brighton moved Amendment No. 141:
Page 41, leave out line 32.
On Question, amendment agreed to.
§ Clause 59, as amended, agreed to.
§ Clause 60 [Short-term prisoners: release subject to curfew conditions]:
Lord Williams of Mostyn moved Amendment No. 142:
Page 41. line 34, leave out from ("subsection") to end of line 37 and insert ("(2)(d) there is inserted—
(da) the prisoner is subject to the notification requirements of Part I of the Sex Offenders Act 1997;"").
§ The noble and learned Lord said: This grouping contains government Amendment No. 142, as well as amendments tabled in the name of the noble Baroness, Lady Blatch; namely, Amendments Nos. 148 to 154. I think it would be convenient if I were to deal, first, with Amendment No. 148, which would have the consequence of the abolition of the home detention curfew scheme in its entirety. The amendment 1633 proposes to insert a new clause to the effect that Sections 34A, 37A and 38A of the Criminal Justice Act 1991 would cease to have effect.
§ I may be wrong, but I understand that the present Leader of the Opposition has highlighted this as a policy pledge; namely, the abolition of the home detention curfew. The other amendments proposed by the noble Baroness are intended, both individually and together, to limit the scope of application of the HDC scheme. The noble Baroness and I are diametrically opposed: the Government have no intention of scrapping the home detention curfew scheme, which incorporates one of the biggest electronic monitoring systems in the world. It has had a very successful first 20 months of operation. Indeed, as I have travelled around and spoken to colleagues in different countries, I am bound to say that they are extremely impressed—first, with the nature of the scheme and, secondly, with its success rate.
All prisoners discharged on home detention curfew are inevitably about to return to the community. This is about the successful resettlement of short-term prisoners who are serving sentences of not more than four years and is aimed at supporting the transition from custody to community. It is worth bearing in mind that the home detention curfew scheme had the unanimous support of the all-party Home Affairs Committee in the other place. It said that the scheme will,
provide adequate protection to the public because of the tagging element, and will give prisoners an opportunity to readjust to life outside prison".
§ Prison governors have been very cautious; indeed, only 30 per cent of eligible offenders have been placed on HDC to date. I know from my own visits to prisons in the past that the co-operation between prison staff, police and probation officers has been extremely effective. The risk assessment is used very prudently. As I said, two figures are important: only 30 per cent of eligible offenders are placed on home detention curfew; and there is a very high and successful completion rate of about 94 per cent. Moreover, fewer than 2 per cent on HDC to date are known to have committed new offices while on the scheme, and many thousands have completed the scheme successfully.
§ As regards the specific amendments, I turn now to Amendment No. 149 tabled in the name of the noble Baroness, Lady Blatch. This amendment looks like a straightforward attempt to encourage the sentencing courts to explain the practical implications of the scheme. However, its consequence would be that no one in prison could go on an HDC scheme unless its existence was explained by the court at the time of sentence, together with an explanation of the way in which the scheme would affect the length of sentence. If the court did not mention the existence of the scheme when sentencing, the offender would automatically be barred from consideration. We believe that the net result would be additional time-consuming bureaucracy for the courts and a loss of clarity and consistency in the use of the scheme.1634
§ However, the amendment goes further. It would require the court to specify the precise amount of time that would be served in custody by the individual offender if he were to be released on HDC after the minimum period of imprisonment specified in statute. That would create false expectations. In any event, looking at courts in practice and the scheme as it is operated, it simply would not be possible for the sentencing court to have the relevant and required information to hand to determine whether an offender would be eligible for HDC.
§ We do not accept that the list of statutory exemptions which already exists needs to be overlaid with a further set of exemptions decided on an individual basis by the courts. I recognise the noble Baroness's concern but I say again with great respect that the courts simply do not have the ability at the time of sentence to overlay a further set of exemptions decided on an individual basis.
§ We believe that the public protection/prisoner resettlement balance is best served by up-to-date assessment of risk determined by the prison governor in conjunction with the police and the appropriate agencies, not least the Probation Service. In reaching that decision, consideration needs to be given to the prisoner's criminal record, but also—this is critical—to an assessment of the offender's behaviour in prison, particularly his willingness, or otherwise, to tackle his offending behaviour. Those elements are simply not knowable at the time of sentence.
§ No such provision applies to parole, the other major discretionary release scheme applying to prisoners. The fact that a prisoner is eligible to be considered for release on HDC or parole does not mean that they will be released in this way. In the case of HDC, the percentage passing the risk assessment is about 30 per cent. In the case of parole, about 40 per cent of those eligible are successful in being granted a parole licence in any given year.
§ Amendment No. 152 has a similar intent to Amendment No. 149. But the grounds suggested—"the interests of justice"—are wide indeed. The defects which I mentioned a moment ago still obtain as regards the scheme that is proposed.
§ Amendments Nos. 150, 151, 153 and 154 would add to the list of categories of prisoner who are excluded from eligibility for release on the home detention curfew scheme. Amendment No. 150 would exclude domestic burglars who have committed more than three offences, but it does not deal with the nature of those offences. They may be extremely trivial at one end of the spectrum, or extremely serious at the other.
§ Amendment No. 151 would exclude anyone committing the wide range of offences for which the maximum period is more than 10 years in prison, irrespective of the seriousness of the actual offence, and irrespective of the nature of the sentence passed.
§ Amendment No. 153 would exclude prisoners who had committed any one of three offences against police constables, but that includes obstructing a police officer in the execution of his duty. In some circumstances that can constitute a minor offence. 1635 I look to the noble Lord, Lord Thomas of Gresford, for confirmation of that point, not, I hasten to add, because he has ever committed the offence. However, he knows as well as I that sometimes that offence is not enormously serious or grave, although sometimes it is.
§ Amendment No. 154 would exclude prisoners who had committed against a child any of some 40 offences in Schedule 4 to the Criminal Justice and Court Services Bill which are defined as "offences against a child". These include matters as diverse as cruelty to children—that might include an act committed in a moment of exasperation by an otherwise loving parent—and encouraging the wicked offence of child prostitution.
§ The home detention curfew scheme is subject to several statutory exclusions. If the Committee accepts my proposal in Amendment No. 142, that will give effect to the commitment given by my right honourable friend Mr Straw in another place. The original Clause 60 would have excluded only sex offenders serving a current sentence for a relevant offence under the 1997 Act. Amendment No. 142 would extend the exclusion to all sex offenders still subject to the notification requirements of the 1997 Act, whether or not their current sentence is for a relevant sentence under that Act. I am sure that we can look to the noble Baroness to support this strengthening of the scheme.
§ In short, I believe that we have a fundamental difference of approach. I recognise that the noble Baroness feels strongly about her approach. However, I suggest that ours is better. I beg to move.
§ Baroness Blatch
As the noble and learned Lord the Attorney-General said, we shall have to agree to differ on the amendments he has mentioned.
As my honourable friend David Lidington announced in another place at col. 662 of Commons Hansard on 12th June, these amendments deal with what the Government term their home detention curfew scheme, which might be more accurately labelled "the special early release scheme for prisoners who have committed serious offences". The idea that a person serving a six month sentence could be released in just six weeks makes a mockery of sentencing—and makes a mockery of honesty in sentencing. That is what Section 34A of the Criminal Justice Act 1991 allows for.
Up to 2,000 prisoners may be on home detention curfew at any one time. In total nearly 23,000 prisoners have been released early since the scheme began in January of last year. This figure includes over 3,000 drug dealers, many killers, thousands of burglars and two rapists. Seven hundred offences have been committed by individuals who were out on the scheme. That is 700 more offences than if the scheme had not been introduced.
It is true that Amendment No. 148 removes the home detention curfew scheme. Amendment No. 149 makes it clear that it is for the judge to make the provisions of the home detention curfew clear at the 1636 time of sentencing. The amendment improves clarification. It brings more honesty into sentencing and will allow victims to have clearer information from the outset about the fate of the offender.
Amendment No. 150 excludes the mandatory three year sentence for burglary as it would not be in the spirit of sentencing if the offender were to be released early.
Amendment No. 151 includes offences such as supplying Class A drugs. It does not mean that an offender has to be sentenced to 10 years, only that the offence carries a maximum of 10 years. Amendment No. 151 gives the judge the flexibility to rule out home detention curfew as an option.
Morale in the police service is dangerously low and we believe that the early release of offenders who have assaulted police officers is wrong. So far I understand that 190 offenders who have convictions for assaulting police officers have been released on home detention curfew. This amendment proposes the exclusion of the use of home detention curfew orders for such an offence.
On Amendment No. 154, as the noble and learned Lord said, we feel strongly that in the interests of child protection offenders who are convicted of any offence against a child listed in the Bill should be ineligible for the scheme. I defend my amendments even against the might of the Attorney-General.
§ 10.30 p.m.
§ Lord Williams of Mostyn
I think that we have agreed to differ quite economically. An individual may have been sentenced to imprisonment only for obstructing a constable, or someone who was otherwise a loving parent may have been guilty of a minor offence against a child. That is quite often the experience; and they are met sometimes with terms of imprisonment. The fundamental point is that these people will be back in the community within not more than four months in any event. Four months is the maximum period, as I recall it, of home detention curfew. Therefore one seeks, as carefully as possible, to manage prisoners back into the community. We all know that the indicators for further reoffending include no home to go to, no settled community to go back to, and no work. That is the whole purpose and virtue of home detention curfew.
I take the noble Baroness's point as sincerely meant when she says that police morale is adversely affected. I go back to my own experience over the year when I was Minister for Prisons and Probation. I have never seen such close co-operation between police, probation and prison officers. They all benefited enormously from that joint assessment ultimately made by the governor.
I go back to my original point. Amendment No. 148 blows the scheme completely out of the water. I see that the noble Baroness is nodding with all the implacability of Pio Nono. I think that he is about to be made a saint: she can draw some comfort from that! 1637 I do not want to hurry the noble Baroness on to that because I think that that is a post mortem declaration. I think that we just have to disagree on the issue.
§ Baroness Blatch
I am a great supporter of the home detention curfew. I introduced it into this House a very long time ago. I did not receive much support from noble Lords opposite when they were sitting on these Benches. It has many applications which are beneficial to the criminal justice system. But the home detention curfew is a cop-out for many people. One of the things which destroys public confidence in the criminal justice system is to hear in court or read that someone has been given a six-month prison sentence and to see them home in a matter of weeks. That takes a lot of explaining to the public.
Obstructing a policeman in the course of duty is a serious matter. If somebody receives a six-month sentence, they should not be out in the community until they have served it. I am concerned about public confidence. I make no apologies for the fact that Amendment No. 148 would blow the scheme out of the water.
§ On Question, amendment agreed to.
§ Clause 60, as amended, agreed to.
Lord Bassam of Brighton moved Amendment No. 143:
After Clause 60, insert the following new clause—