HL Deb 08 October 2003 vol 653 cc377-87

House again in Committee.

Clause 175 [Licence conditions]:

Baroness Anelay of St Johns moved Amendment No. 177G: Page 104, line 6, leave out paragraph (b).

The noble Baroness said: I shall speak also to Amendments Nos. 177H and 179A. All these amendments stand in my name and that of my noble friend Lord Kingsland. They relate to the electronic monitoring requirements that are imposed on three types of offender: first, those offenders who are serving custody-plus sentences and are then released on licence; secondly, those offenders who are serving intermittent custody sentences and are released either temporarily or permanently on licence; and thirdly, those offenders who are serving suspended sentence orders.

Under the Bill, all these sentences can include a number of requirements on offenders serving their sentences in the community such as a curfew, unpaid work, or a prohibition on certain activities. My amendments probe the circumstances in which electronic monitoring will be used to enforce offenders' compliance with such conditions.

In the type of cases I have outlined, the Bill provides that when a licence contains either a curfew condition or an exclusion requirement, the court must ensure that that requirement is monitored electronically. One presumes that that means by the usual devices, such as the use of a tag or perhaps reporting via voice recognition. With technology as it is, matters may develop. The Bill sets out the proviso that that is to be the case unless, in the particular circumstances of the case, it considers it inappropriate to do so".

Therefore, my question is obvious: in what circumstances do the Government envisage that it will be inappropriate to monitor a curfew or an exclusion requirement through non-electronic means? What types of non-electronic means would be employed, and what kind of test is it envisaged that the courts would apply in arriving at the conclusion that electronic monitoring was "inappropriate"? Would defence counsel simply have to make an objection to the imposition of such a requirement or would evidence of the reasons for it being inappropriate be required?

Those will be important issues because the kind of offenders for whom curfew or exclusion requirements might be appropriate will include burglars or those convicted of domestic violence—people who are serious offenders. It is important that the Bill is clear about the circumstances in which such offenders may not be tagged or otherwise electronically monitored. That is the gist of Amendment No. 177G.

I apologise in advance for the length of time that I shall take on these amendments. It will help the Committee eventually because they are all grouped together, but it certainly takes some time to go through them.

Amendments Nos. 177H and 179A relate to the court's powers to order that electronic monitoring should be used when a number of other requirements, such as unpaid work, prohibited activity or supervision requirements, are included as part of the offender's licence conditions. In contrast to the duty—with the exception to which I referred previously—to impose electronic monitoring in the case of curfew or exclusion requirements, the court is to have complete discretion to order electronic monitoring in these latter cases.

Therefore, I tabled the amendments to try to obtain an explanation of how the Government see electronic monitoring being used by the courts in this context— particularly, in the context of sex offenders who are given short custodial sentences and are then subject to supervision requirements on their release. Will the need for public confidence and public protection be taken into account in deciding whether to tag such offenders? Or is it the Government's intention that electronic monitoring should be used in order to ensure the offender's compliance in cases such as that of the offender who commits perhaps a minor assault, spends two weeks in custody and is then given an unpaid work requirement on release? How widely do the Government intend that the discretion to order electronic monitoring should be used in the tens of thousands of cases in which custody plus and intermittent custody will be imposed each year?

I pause briefly to check that I have the groupings correct. There were so many changes that I want to ensure that I do not miss out some of the amendments.

It is important to ensure not only that the offenders comply with the conditions that are imposed on them when they are released into the community, but also to ensure that the public are protected to the greatest possible degree. Therefore, I would be grateful for further clarification from the Government on the role that they expect electronic monitoring to play in securing those aims.

I turn to Amendment No. 177J which relates to the new sentence of intermittent custody. It relates to Clause 176(8) which allows the Secretary of State to make an order requiring the courts to specify particular periods or particular parts of the week when making intermittent custody orders. The fact is that the wording in subsection (8) means that the essential element of intermittent custody—the precise nature of temporary licence periods during which the offender will be released from gaol for a short time—is being left entirely to secondary legislation. In the White Paper at paragraph 5.33, the Government say that intermittent custody would come in two forms, and only two forms; namely, where offenders will serve their custodial sentence at weekends or during the week".

Paragraph 468 of the Explanatory Notes goes further by giving three examples: between 2 and 4 days"; to restrict custodial periods to weekends"; and "not Fridays".

Subsection (8) allows the Secretary of State to specify that the periods should begin or end at particular times of the day.

The powers given to the Secretary of State under the Bill to specify the precise nature of the intermittent custody periods go much further than the weekends or weekdays options mentioned in the White Paper. So far because this matter was not debated in another place, we have had no explanation from the Government of exactly what they intend by these provisions. That is why I have tabled these amendments. In another place the amendments were tabled but they were knocked out by a timetabling Motion.

We are being asked to agree to allow courts to impose part-time gaol sentences, but the extent to which those sentences are part time appears to be left entirely to the Secretary of State and secondary legislation. I am hoping that the Minister will assist us to take a leap into the dark by shining some light on the matter.

Finally, I come to Amendment No. 177K. It would insert three new subsections into Clause 177 which would prohibit the courts from passing a sentence of intermittent custody on certain categories of serious offender. It is intended as a probing amendment to ask the Government to explain the types of offence for which a sentence of intermittent custody would be imposed. As we have heard in previous debates, it is effectively a part-time gaol sentence.

New subsection (1A) in the amendment would prevent a sentence of intermittent custody being passed on any registered sex offender regardless of whether or not the offence for which the sentence was passed was a sexual offence. A similarly worded exclusion of course already exists for the home detention curfew scheme, which provides for early release on electronic tags. That is reproduced in Clause 236(4)(e). New subsection (1B) of my amendment would prevent intermittent custody where the offender was being sentenced for an offence committed against a child and in new subsection (1C) where the offender was being sentenced for a class A drug dealing or trafficking offence.

As I read the Bill, there is no restriction whatever on the kind of offender who might receive intermittent custody orders. I have tabled these amendments to try to obtain an explanation of the Government's objectives. I beg to move.

Baroness Scotland of Asthal

Once again, now that I understand the purpose of the amendments tabled by the noble Baroness, I shall seek to give as much clarification as I can. I should perhaps preface that comment by saying that, as the noble Baroness will understand, the nature of each case will vary with the number of cases that come before the courts. Therefore, we cannot be entirely prescriptive.

We have already said that many of the areas touched upon by the noble Baroness will be subject to guidelines and guidance given by the sentencing council. I prefaced with those remarks because 1 do not think that it would be helpful for me to go into incredible detail as to what this offence would and this offence would not do. We are not seeking to usurp the function either of the judiciary determining the case or, indeed, the council when it has had the benefit of listening to what the panel says as to when it should and should not bear this in mind and the kind of considerations that it will have to take into account.

While we appreciate the wish inherent in Amendment Nos. 177G, 177H and 179A, to ensure compliance with licence conditions and suspended sentence requirements through electronic monitoring, we think that removing the discretion of the courts on whether such a condition is either a necessary or proportionate response would lead to monitoring in cases where it is not necessary on the basis of risk. We think that this could not be justified because each case will demand of the judiciary an exercise of discretion as to risk assessment that a particular offender may pose on a whole plethora of bases.

I should also point out that in the conditions set out in Clause 175(3) there is an implied presumption that where the courts believe it is necessary to impose a curfew or an exclusion zone these will be monitored electronically. However, there may well be cases where it is not appropriate or possible electronically to monitor. If so, in the light of Amendment No. 177G, the courts may be deterred from imposing a curfew or exclusion condition. I am sure that that is not what the noble Baroness seeks to secure.

On Amendments Nos. 177H and 179A, it is likely that a substantial proportion of offenders sentenced to custody plus or a suspended sentence will have one or more of the conditions listed in these clauses included in their licence or sentence. However, in many cases, there will be no evidence to suggest that the offender presents a high risk of failing to comply with these conditions. Therefore, if we were electronically to monitor those offenders, regardless of the risks they pose, that would have substantial resource implications and could reasonably be described as a disproportionate response. For those reasons, the amendments are unattractive.

Intermittent custody is a new and radical form of prison sentence. It will be between 26 and 51 weeks long, of which up to 90 days are spent in custody. The custodial days will not be served consecutively as in other prison sentences but in blocks of several days. The offender will be on licence between the custodial blocks and beyond their end until the end of the sentence.

So one can imagine cases in which, for example, if we consider the pattern of offending behaviour, the individual may be prone to drink on a Friday night through to Saturday and Sunday. We may want to interrupt that behaviour to deprive that person of that opportunity, because he seems to be perfectly sober and proper between Monday and Friday. That is a way to allow the court to craft something that will have the desired effect—perhaps of denying the person his liberty and giving him an opportunity to consider the nature of his behaviour—but also to protect him by depriving him of an opportunity to behave badly again. Obviously, that may be very useful.

The sentence is also aimed at offenders who have crossed the custodial threshold but who have strong ties with the community, such as employment, education or caring responsibilities. Serving the custodial part of their sentence around those responsibilities should reduce the chance that they will reoffend, as those are all factors associated with reducing offending.

Amendment No. 177J removes an order-making power. That power allows the Secretary of State to make an order specifying that intermittent custody licence periods will consist of a prescribed duration; that they will begin or end at prescribed times of day; or that they should include or not include certain days of the week. Due to intermittent custody being such a new type of sentence, the order is intended to ensure that offenders end up with broadly similar intermittent custody licences. It should prevent offenders serving, for example, custodial blocks that consist of a single day, which would be impossible for the prison and probation services to manage.

The specifications in the order will be drawn up and, if necessary, amended for the optimal functioning of intermittent custody, as evidenced by the two pilot schemes due to be launched in January. We want to learn from those pilot schemes, look to see what works well and identify any difficulties so that before the scheme is applied more generally we shall have a better handle on how they should be crafted.

Amendment No. 177K would restrict the imposition of intermittent custody by excluding certain offences. Intermittent custody is not intended for offenders such as those listed in the amendment. First, at its maximum it is less than 12 months long. Secondly, such offenders would be screened out by the suitability requirement in Clause 177(2)(a). That states that the court may not make an intermittent custody order unless it has consulted an officer of a local probation board.

In practice, intermittent custody would be recommended in a pre-sentence report, following an assessment of the offender's personal circumstances and needs and a risk assessment of the offender's suitability for a punishment with a community element. I am sure that the noble Baroness will appreciate that those risk assessments are infinite in their variety. I have not yet—perhaps she has—ever met two identical offenders. They all seem to have some slight variation that we must take into account.

There may be additional dangers in listing those offences which are excluded from intermittent custody, in that sentencers may assume that it is thus suitable for any other offender, when in fact the decision must be made on a case-by-case basis. It is likely that the offences most likely to result in intermittent custody include theft, fraud, forgery and the less serious driving offences. But it may be possible to extend it.

It is interesting that Members of the Committee have expressed strongly a wish for judges to be independent and to have discretion. In all these amendments, I hope that Members of the Committee will see clearly why we think that discretion needs to be left with the sentencer, who will have the flexibility to do that which will best suit the needs of the victim, the justice of the case and the defendant in terms of his reformation and punishment. Our framework allows judges and sentencers to do just that.

Baroness Anelay of St Johns

I am grateful to the Minister for her careful response. I was trying to tease out a little more information about the Government's approach to the basis on which intermittent custody might be appropriate. She rightly responded that the Opposition want the judiciary to have discretion so the Government are giving it discretion. My response is that, as ever, I agree entirely with the idea of judicial discretion and, in particular, that the sentencer needs flexibility to impose the right solution for each particular person and offence.

I shall return to a debate that we had before the dinner break—that can happen only when the resources are there properly to effect it, where the sentencers have the confidence of knowing that the resources are there, and where they have the confidence of the executive that they are imposing such sentences in the kind of cases to which the public expects them to apply. It is not quite as easy as the Minister says it is for us to accept that it is just a matter of judicial discretion. There is a lot more responsibility on all of us to ensure that the judiciary is supported.

I will look carefully at these issues before Report stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 177H and 177HA not moved.]

Clause 175 agreed to.

Clause 176[Intermittent custody]:

[Amendments Nos. 177J to 177JB not moved.]

Clause 176 agreed to.

Clause 177 [Restrictions on power to make intermittent custody order]:

[Amendment No. 177K not moved.]

Clause 177 agreed to.

Clause 178 agreed to.

Clause 179 [Further provisions relating to intermittent custody)]:

Baroness Scotland of Asthal moved Amendment No. 177KA:

Page 106, line 11, leave out subsection (3).

The noble Baroness said: This group of amendments concerns intermittent custody, a new sentence designed to retain an offender's ties to the community, which are associated with reduced reoffending. The sentence might be especially appropriate if an offender has employment, education or childcare responsibilities.

Amendment No. 177KA removes a restriction on the Secretary of State paying discharge grants to intermittent custody only at the end of the final custodial period. Intermittent custody is a sentence to which an offender consents. If the offender does not consent, ordinary custody is imposed. It is unlikely that any offenders will consent to it if they have to pay for transportation to and from the prison. That is especially important in the women's estate, where the "catchment area" is so large that women are likely to travel long distances to an intermittent custody centre. The removal of the subsection will allow the Secretary of State to subsidise offenders' travel to and from the centre where they are to serve their sentence.

Amendments Nos. 177KB, 203ZA and 203AA deal with procedures to apply when an intermittent custody offender is unlawfully at large. Amendment No. 177KB clarifies what is meant by "unlawfully at large" in the context of intermittent custody. The amendment makes it clear that in addition to absconding from custody, an offender who does not return to custody following a licence period will also be at large.

Amendments Nos. 203ZA and 203AA provide for what will happen to an intermittent custody prisoner after being returned to custody following a period unlawfully at large. The new clause ensures that the offender does not have to be released again for his next intermittent licence period. Instead, the Secretary of State can keep him in custody while an application to the court is made to vary the order to full-time custody. The Secretary of State does not have to do this if it turns out that the offender was unlawfully at large for good reason. The Secretary of State can allow him to resume his intermittent sentence.

The Secretary of State must make the application within 72 hours. Once the application is made, the offender stays in full-time custody until the application is decided by the court. The new clause also makes it clear that if an intermittent custody offender has been recalled to prison, the Secretary of State does not have to release him for his next licence period. His sentence becomes one of full-time custody. The Committee will see why we need to make those re-adjustments.

Amendment No. 208B allows an intermittent custody prisoner who has been recalled but immediately re-released by the parole board to resume his intermittent custody, rather than requiring him to serve full-time custody. If the parole board does not re-release him immediately, it must decide when the prisoner should be released, as with all prisoners, under Clause 245.

Amendment No. 208C inserts a definition of intermittent custody prisoners into the interpretations, which is now necessary on the basis of the amendments tabled.

Amendment No. 250 provides for the early commencement under Clause 305 of the order-making power in Clause 176(8). This allows the Secretary of State to make provisions about the licence periods that the court may specify as part of the new sentence of intermittent custody. It would enable him to specify the length of the licence periods, particular days of the week on which the licence periods can begin or end and periods including or not including specified parts of the week. We need this provision in force upon Royal Assent, in order to draft the necessary secondary legislation in time for a pilot of intermittent custody which is due to start on 19th January 2004.

Amendment No. 179ZA—the last, the Committee will be pleased to know—allows the Secretary of State, in addition to the responsible officer and the offender, to apply to the court to change the pattern of intermittence in an intermittent custody order. That might be necessary if an offender on intermittent custody behaves so badly that he is clearly unfit for this type of sentence. I have taken a little time to clarify the way in which the provision will operate because I know that practitioners and others need to understand how it all fits together.

Lord Carlile of Berriew

I would like to comment on the transport to courts of women prisoners. Those of us who spend a lot of time in the criminal courts have our own catalogue of horror stories about prison transport, which is a particular problem with women prisoners. Any additional money to ensure a better operation of transport to and from courts for women prisoners is very welcome, but the money on its own will not solve the problem.

Those of us who have witnessed some of the events that I am describing know that turning the money into an efficient organisation of transport of prisoners to court may be a greater task than at first sight one might imagine. I cite the example of Styal prison in Cheshire: a prison that looks after its inmates very well. However, the transport from Styal to court is a very big problem for courts throughout the north-west and in North Wales. I know of a woman prisoner who was charged with and later acquitted of murder who was brought to court in Warrington every day, suffering quite ridiculously long journeys en route because other people had to be dropped off at magistrates' courts on the way. On one occasion, the return journey from court, which should have taken about 30 minutes, was never completed. She was taken back to a police station, where she spent the night. A police constable in the station was repeatedly abusive to her during the night, taunting her for being a killer—I emphasise the fact that she was acquitted later. When she went to court, a senior judge—a presiding judge of the Wales and Chester circuit—when told what had happened, said, "We will not sit in the morning. She must be given time to sleep in the court cells".

The cost of all that to the court system was something like £5,000 or £6,000. We hope that, when more money is provided for the transport of female prisoners, it can be translated into better management of the transportation system. Most judges who deal with women prisoners—perhaps all prisoners—in the Crown Court sometimes despair at the delays that are caused by the prison transport system. It is not good in almost every part of the country.

Lord Renton

In Amendment No. 177KC, we have the first reference to "custody plus orders". They are referred to numerous times with regard to Scotland and Northern Ireland and with regard to the general provisions set out in the new schedule after Schedule 9.

I have looked hard and as diligently as I can for the definition of a custody plus order. There must be one somewhere. Will the noble Baroness tell us where we would find such a definition? I suggest that, if she cannot, if there is no definition, a definition should be inserted into the Bill on Report.

Baroness Scotland of Asthal

I am just looking for it. I shall write to the noble Lord. I can see so many references to custody plus. I shall have to look quickly at the interpretation schedule, and I shall do that the moment I sit down. I hope that the noble Lord will be content with that.

To the noble Lord, Lord Carlile of Berriew, I say that we recognise the difficulties that have been experienced with travel. One of the relevant issues is how we get correct, properly targeted information about precisely when individual prisoners will be needed and in what place. I know that that has been a difficulty for a long time. The Committee will know that we are investing more than £1 billion in criminal justice IT. I hope that the noble Lord will be pleased to know that, soon, we will have secure e-mail that can be used by courts, prosecutors, prisons and others to communicate more efficiently with one another on timings.

Lord Carlile of Berriew

Does the noble Baroness realise how far we have to go to reach that laudable conclusion? I know of a recent case in which the prison van bringing a prisoner to court was telephoned by the court in order to ascertain the whereabouts of the prisoner, who was late by some considerable time. Such was the electronic potential of the prison van that, in order for the mobile telephone to be answered, the van had to pull onto the hard shoulder of the motorway, and the telephone had to be transferred from one part of the van to the other. That is hardly the modern communications age.

Baroness Scotland of Asthal

Obviously, I cannot comment on that or many of the other examples. All I can say is that we understand the need for—

Lord Bassam of Brighton

Health and safety.

Baroness Scotland of Asthal

My noble friend says, "health and safety". We understand the need for better communication. I congratulate all the people who have worked with such diligence on criminal justice IT. Practitioners in the field have longed for secure e-mail for as long as I can remember. I am sure that a great "Hallelujah" will be said, when it finally arrives.

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendment No. 177KB: Page 106, leave out lines 17 to 21 and insert— (4A) For the purposes of this section a person shall also be deemed to be unlawfully at large if, having being temporarily released in pursuance of an intermittent custody order made under section 176 of the Criminal Justice Act 2003, he remains at large at a time when, by reason of the expiry of the period for which he was temporarily released, he is liable to be detained in pursuance of his sentence.

On Question, amendment agreed to.

Clause 179, as amended, agreed to.

Clause 180 agreed to.

9.15 p.m.

Baroness Scotland of Asthal moved Amendment No. 177KC:

After Clause 180, insert the following new clause—

"TRANSFER OF CUSTODY PLUS ORDERS AND INTERMITTENT CUSTODY ORDERS TO SCOTLAND OR NORTHERN IRELAND

Schedule (Transfer of custody plus orders and intermittent custody orders to Scotland or Northern Ireland) shall have effect."

The noble Baroness said: Amendments Nos. 177KC, 252CA, 179ZAA, 226A, 227ZD, 243A, 243B, 244AC, 246ZA and 246AB amend current legislation so that arrangements for transferring prisoners apply to the new sentencing framework. Transfers of custody plus and intermittent custody, which can transfer once intermittent custodial periods have been served, require a schedule as this sentence is unique. The schedule is based on that for transferring suspended sentence orders.

The other amendments are to Schedule 1 to the Crime (Sentences) Act 1997 where current arrangements are set out. These amendments enable all other custodial sentences of a determinant length to transfer. I could amplify each of the amendments, but I hope that suffices. If there are any particular matters that Members of the Committee wish to raise in respect of any of the amendments, I shall be happy to deal with them. I beg to move.

Lord Renton

I owe the noble Baroness an apology. I was premature in referring to this new clause. She addressed the point at the time. I do not expect any further explanation from her.

On Question, amendment agreed to.

Schedule 9 [Revocation or amendment of custody plus orders and amendment of intermittent custody orders]:

Baroness Scotland of Asthal moved Amendment No. 178: Page 239, line 8, after "of insert "the Secretary of State or

The noble Baroness said: This amendment applies to custodial sentences of under 12 months; that is, custody plus and intermittent custody, which will have licence conditions set by the court. However, there may be situations in which events occur in an offender's life during his stay in prison such that a further licence condition is necessary for public protection. Custody plus offenders can be in prison for up to three months. Such events may occur within that time frame. For example, the offender's relationship might break down and he may make threats towards his partner. An exclusion requirement may be necessary in this case to ensure the safety of the partner.

Amendments Nos. 206 to 208 ensure that the Secretary of State can add a licence condition to sentences of custody plus and intermittent custody for the purpose of public protection only. The Secretary of State would be able to choose only from the list of licence conditions available to the court. The conditions most likely to be used are exclusion, curfew and prohibited activity.

Amendments Nos. 205A and 208A clarify what is to happen to the court-set licence conditions of custody plus and intermittent custody sentences once the offender has been recalled to prison. Amendment No. 207A is a drafting clarification. It is intended to make it clear that a curfew condition on an intermittent custody licence cannot be in force at the same time as a curfew condition on an HDC licence given to intermittent custody offenders. I beg to move.

On Question, amendment agreed to.

Baroness Scotland of Asthal moved Amendment No. 179ZA:

Page 239, line 44, after "offender" insert ", the Secretary of Stale"

On Question, amendment agreed to.

Schedule 9, as amended, agreed to.

Baroness Scotland of Asthal moved Amendment No. 179ZAA:

After Schedule 9, insert the following new schedule—

"TRANSFER OF CUSTODY PLUS ORDERS AND INTERMITTENT CUSTODY ORDERS TO SCOTLAND OR NORTHERN IRELAND