Legal Aid, Sentencing and Punishment of Offenders Bill
(12 years, 9 months ago)
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Lord Beecham
“Right to appeal bail decisions
(1) The Bail (Amendment) Act 1993 is amended as follows.
(2) After section 1 insert—
“1A Appeal against a bail decision
(1) The prosecution may appeal to a judge of the High Court against the decision of a Crown Court to grant bail in a case where a person is charged with or convicted of an offence triable on indictment.
(2) Subsection (1) applies where the prosecution is conducted—
(a) by or on behalf of the Director of Public Prosecutions; or(b) by a person who falls within a class or description of person as prescribed in regulations made under this section.(3) An appeal under subsection (1) may only be made where—
(a) the prosecution made representations that bail should not be granted; and(b) the representations were made before it was granted. (4) In the event of the prosecution wishing to exercise the right of appeal under subsection (1), it must give oral notice of appeal to the Crown Court at the conclusion of the proceedings in which such bail has been granted and before the release from custody of the person concerned.
(5) Written notice of appeal shall thereafter be served on the Crown Court and the person concerned within two hours of the conclusion of such proceedings.
(6) Upon receipt from the prosecution of oral notice of appeal from its decision to grant bail, the Crown Court shall remand in custody the person concerned until the appeal is determined or otherwise disposed of.
(7) Where the prosecution fails within the period of two hours mentioned in subsection (5) to serve one or both of the notices in accordance with that subsection the appeal shall be deemed to have been disposed of.
(8) The hearing of an appeal against a decision of the Crown Court to grant bail under subsection (1) shall be commenced within forty-eight hours, excluding weekends and any public holiday (that is to say Christmas Day, Good Friday or a Bank Holiday) from the date on which oral notice of appeal is given.
(9) The judge hearing an appeal under this section shall be privy to any earlier evidence and may, at the conclusion of the hearing—
(a) remand the person concerned in custody; or(b) grant bail, subject to any conditions,as he or she sees fit.”.”
Baroness Anelay of St Johns
My Lords, the noble Lord, Lord Beecham, is making a very diplomatic hesitation before moving an amendment that I know is not only of importance here but will be taken account of outside this House.
Lord Beecham
My Lords, every so often a tragic incident occurs which leads to a change in social policy or, indeed, a change in legislation. One thinks of the cases of Stephen Lawrence, Jamie Bulger, Victoria Climbié and Milly Dowler and, as your Lordships may recall when we were discussing amendments in relation to alcohol and offences the other night, the murder of the husband of a Member of your Lordships' House—the noble Baroness, Lady Newlove.
This amendment and the government amendment arise from the brutal murder of Jane Clough, a 26 year- old nurse and mother of a baby daughter, by the partner with whom she was living who had been charged with very grave sexual offences. The partner was granted bail in the magistrates’ court and the brutal murder occurred shortly thereafter. This morning I have had the humbling privilege of meeting Jane’s parents—John and Penny Clough. I salute the dignity and courage with which they are not only bearing the loss of a beloved daughter in the most appalling circumstances but the way they have campaigned, with support from a wide range of individuals and organisations and across party, for a change in the law to allow an appeal against the granting of bail. I know that they would wish for an expression of thanks to be made to all those who have supported them in this campaign, in particular to Vera Baird, the former Solicitor-General, and to Members of Parliament in the other place, notably Helen Goodman and Jenny Chapman. Penny and John are sitting today below Bar in your Lordships' House. They came the other night but, unfortunately, we did not reach this amendment at that time. They have stayed on in order to see effectively the culmination not only of their pain but also of their campaign.
Irrespective of whether bail is granted in a magistrates’ court or in a higher court, there will never be any guarantee that the person granted bail will not commit an offence. However, these amendments seek to ensure that in the appropriate cases the prosecution, knowing of the circumstances which gave rise to the charges in the first place, can at the very least take the matter to a higher court for determination, and offer a perhaps better prospect of avoiding a repetition of this dreadful incident or any incident like it. In approving a change in the law—I say immediately that I very much welcome the Government’s amendment and am happy to withdraw my amendment in favour of it—we should be able to demonstrate the capacity of Parliament to react to issues of this kind and to encourage others, perhaps facing different circumstances but where a change in the law might be needed, to follow the wonderful example of Jane’s parents, Penny and John, in ensuring that a change in the law is made. I said to them that if this House were given to standing ovations, they would be greeted with such an ovation today. Our hearts, our sympathies, but more particularly and perhaps more relevantly, our legislative endeavours go towards them today in meeting their objectives.
Lord Clinton-Davis
Is there any possibility of any action being taken after the judge has considered the point? In other words, would the prosecution be able to take the matter further?
Lord Beecham
I do not think that the amendment allows for that, but that is a matter that perhaps might be considered. It is adequate that the Crown Court should be able to deal with these matters.
However, leaving that technicality aside, perhaps I may, on behalf of your Lordships' House, extend our very best wishes to the whole family of Penny and John because their daughter is seeking to adopt the grandchild, and all of them deserve our best wishes and, indeed, our thanks.
I intend to withdraw the amendment.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, the noble Lord, Lord Beecham, has already outraged the protocol of this House by recognising people present beyond the Bar, but I do not think that he will be taken away to the Tower for that breach because it is good that Members of the House are aware that Jane’s parents are present to see us in action. I am afraid that the other night they had the experience of seeing the Lords in action that delayed this debate, but it is such an important matter for them, their family and the wider public that we have this debate today. I sincerely hope that within a few minutes they will see Jane’s law passed by this House.
Amendment 178ZZA creates a right of appeal for the prosecution against a Crown Court decision to grant bail. It does so by extending the existing powers in the Bail (Amendment) Act 1993, which currently provides for a right of appeal against bail granted by a magistrates’ court. That appeal is to the Crown Court. Under Amendment 178ZZA, the avenue of appeal against a Crown Court decision would be to the High Court.
As we have heard from the noble Lord, Lord Beecham, this is a matter that has been the subject of a campaign by Jane’s parents following the release on bail of Jonathan Vass by the Crown Court, despite representations from the Crown Prosecution Service. We considered this matter very carefully. We took account, on the one hand, of the fact that a right of appeal would necessarily impose an additional burden on the High Court. On the other hand, there was strong support for change in the other place, as we have heard, and the Director of Public Prosecutions has made it clear that he too is in favour of such a change in our law.
Our conclusion was that without calling into question the correctness of decisions made by Crown Court judges in the vast majority of cases, it is not right that such decisions should be beyond challenge. We are persuaded of the case for changing the law in order to ensure that victims and their families, and the public at large, are protected.
The effect of the provision will be that the decision to appeal must be made immediately, before the defendant has been released, and as the defendant would be held in custody pending the appeal, the appeal must be heard very quickly. Listing cases at such short notice before a High Court judge clearly has resource implications, and it is important that the right of appeal should be used sparingly. This will be recognised in the guidance that the Director of Public Prosecutions will issue to his staff, which will require a decision to appeal to be approved at a senior level.
The most notable difference between our Amendment 178ZZA and Amendment 178 moved by the noble Lord, Lord Beecham—I am grateful that he intends to withdraw it—is that ours is shorter and does not permit an appeal against a decision by the Crown Court to grant bail where it was itself made on appeal from the grant of bail by a magistrates’ court. So if a defendant was granted bail by the magistrates, the prosecution appealed and the Crown Court granted bail, the prosecution would not be able to appeal further. This is to stop a continuing series of appeals on a matter that by then would have been considered by two courts. I therefore commend Amendments 178ZZA and 178ZZB to your Lordships' House.
It is my responsibility as the Minister to put on the record the technicalities; hence, some of my remarks may seem gobbledegook to those not in the Chamber. However, I can assure the House that what the Government are doing, supported by Her Majesty's Opposition and, as the noble Lord, Lord Beecham, made clear, supported firmly by the other place, is approving Jane’s law.
Lord McNally
““imprisonable offence” means an offence punishable in the case of an adult with imprisonment,”;
““sexual offence” means an offence specified in Part 2 of Schedule 15 to the Criminal Justice Act 2003,”;
““violent offence” means murder or an offence specified in Part 1 of Schedule 15 to the Criminal Justice Act 2003,””
Lord McNally
My Lords, these are technical government amendments. I beg to move.
Lord McNally
“(1) Section 3 (general provisions) is amended as follows.
(2) In subsection (6ZAA), for “person),” substitute “person granted bail in criminal proceedings of the kind mentioned in section 1(1)(a) or (b)), section 3AAA (in the case of a child or young person granted bail in connection with extradition proceedings),”.
(3) In subsection (7)—”
“3A (1) Section 3AA (conditions for the imposition of electronic monitoring requirements: children and young persons) is amended as follows.
(2) In the heading after “young persons” insert “released on bail other than in extradition proceedings”.
(3) In subsection (1) (conditions for the imposition of electronic monitoring conditions: children and young persons) after “young person” insert “released on bail in criminal proceedings of the kind mentioned in section 1(1)(a) or (b)”.”
3B After section 3AA insert—
“3AAA Conditions for the imposition of electronic monitoring requirements: children and young persons released on bail in extradition proceedings
(1) A court may not impose electronic monitoring requirements on a child or young person released on bail in connection with extradition proceedings unless each of the following conditions is met.
(2) The first condition is that the child or young person has attained the age of twelve years.
(3) The second condition is that—
(a) the conduct constituting the offence to which the extradition proceedings relate, or one or more of those offences, would, if committed in the United Kingdom, constitute a violent or sexual offence or an offence punishable in the case of an adult with imprisonment for a term of fourteen years or more, or(b) the offence or offences to which the extradition proceedings relate, together with any other imprisonable offences of which the child or young person has been convicted in any proceedings—(i) amount, or(ii) would, if the child or young person were convicted of that offence or those offences, amount,to a recent history of committing imprisonable offences while on bail or subject to a custodial remand. (4) The third condition is that the court is satisfied that the necessary provision for dealing with the child or young person concerned can be made under arrangements for the electronic monitoring of persons released on bail that are currently available in each local justice area which is a relevant area.
(5) The fourth condition is that a youth offending team has informed the court that in its opinion the imposition of electronic monitoring requirements will be suitable in the case of the child or young person.
(6) The references in subsection (3)(b) to an imprisonable offence include a reference to an offence—
(a) of which the child or young person has been accused or convicted outside the United Kingdom, and(b) which is equivalent to an offence that is punishable with imprisonment in the United Kingdom.(7) The reference in subsection (3)(b) to a child or young person being subject to a custodial remand are to the child or young person being—
(a) remanded to local authority accommodation or youth detention accommodation under section 84 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012,(b) remanded to local authority accommodation under section 23 of the Children and Young Persons Act 1969, or(c) subject to a form of custodial detention in a country or territory outside the United Kingdom while awaiting trial or sentence in that country or territory or during a trial in that country or territory.”
“4A In section 3AC (electronic monitoring: general provisions) in each of subsections (7) and (8) after “3AA” insert “, 3AAA”.”
“Bail (Amendment) Act 1993 (c. 26)28A (1) Section 1 of the Bail (Amendment) Act 1993 (prosecution right of appeal where bail is granted) is amended as follows.
(2) After subsection (1A) insert—
“(1B) Where a judge of the Crown Court grants bail to a person who is charged with, or convicted of, an offence punishable by imprisonment, the prosecution may appeal to the High Court against the granting of bail.
(1C) An appeal under subsection (1B) may not be made where a judge of the Crown Court has granted bail on an appeal under subsection (1).”
(3) In subsection (2) for “Subsection (1) above applies” substitute “Subsections (1) and (1B) above apply”.
(4) In subsections (3), (4) and (8) for “or (1A)” substitute “, (1A) or (1B)”.
(5) In subsection (10)(a)—
(a) for “reference in subsection (1)” substitute “references in subsections (1) and (1B)”, and (b) for “is to be read as a reference” substitute “are to be read as references”.”
“30A In section 200 of the Extradition Act 2003 (amendments to section 1 of the Bail (Amendment) Act 1993) omit subsections (4)(a) and (7)(a).”
Lord Ramsbotham
Lord Ramsbotham
My Lords, in speaking to the amendment and Amendments 178ZAA, 178ZAB, 178ZAC and178ZAD, I must state my strong support for the reforms implicit in Clauses 91 to 94, which place two clear sets of conditions on a court before a child can be remanded in custody. I say that because, at present, one-third of all children remanded to youth detention accommodation do not go on to receive a custodial sentence. I also support the simplified single remand order, which addresses the anomaly of 17 year- olds being remanded in adult accommodation.
I turn to Amendment 178ZZAZA. Our debate on Tuesday on Clause 75 concerning the proposed increase in curfew hours is linked to Clauses 87 to 89, to which the amendment refers, because electronic monitoring of children is part of their curfew regime. Clause 87(2) states:
“The first requirement is that the child has reached the age of twelve”,
before he or she may be electronically monitored. I and the Prison Reform Trust—for whose admirable briefing on this and many other issues I and, I am sure, many other noble Lords are extremely grateful—contend that 12 is too young.
Research suggests that, particularly if the longer periods that were so deplored around the Committee on Tuesday are adopted, many children aged 12 are likely to find compliance with electronic monitoring too onerous due to developmental immaturity, learning difficulties, learning disabilities or other mental health and communication problems, contributing to a lack of understanding of the consequences of their actions. This is borne out by the breach figures, which show that one in six children aged 10 to 14 in custody had been imprisoned for breach of a curfew order.
As was mentioned on Tuesday, Home Office research published in 2005 raised concerns that electronic monitoring can also prevent children participating in legitimate activities, thus increasing the likelihood of breach. I am aware that in Committee in another place the Minister, Crispin Blunt, said in rejecting a similar amendment:
“By removing the power of the court to use electronic monitoring with 12 and 13-year-olds, the amendments would push courts to remand more young children in secure accommodation … contrary to the policy underlying the provisions, which are aimed at reducing the use of secure remands of children and promoting greater community provision”.—[Official Report, Commons, Legal Aid, Sentencing and Punishment of Offenders Bill Committee, 11/10/11; col. 709.]
With respect, I think he missed the point that was being made, which was that removing the power to electronically monitor would encourage positive engagement. From personal experience, I know that better outcomes result from positive engagement than from the imposition of onerous conditions, particularly with younger offenders. The amendment seeks to raise the minimum age for electronic monitoring from 12 to 14, with the same age condition for remand to youth detention, to which my Amendments 178ZAA to 178ZAD refer. I beg to move.
Lord Beecham
My Lords, it is certainly desirable that electronic monitoring should be used very sparingly but there may well be cases in which even a 12 or 13 year- old has exhibited behaviour which requires—I say with some reluctance—monitoring of this kind. Therefore, I am afraid that the Opposition cannot support the amendment of the noble Lord, Lord Ramsbotham.
However, I have a question in relation to Amendment 178ZAD, which concerns extradition cases. I should like an assurance that, if the country requesting extradition does not itself apply electronic monitoring to the age group in question, such cases will not attract that procedure in this country. It would seem anomalous if we were to go further than the country seeking extradition in applying electronic monitoring to those cases. Perhaps the noble Baroness could deal with that. If she cannot do so today, perhaps she could write to me accordingly.
Baroness Northover
My Lords, we understand the intention behind the amendments of the noble Lord, Lord Ramsbotham, and are very sympathetic to his concern for children and young people. The welfare of a child or young person securely remanded is clearly very important. Extending looked-after child status to all those under 18 who are securely remanded, as we are doing in Clause 97, proves our commitment to that.
However, the Government believe that the current age threshold for secure remand of a child should remain at 12. Serious offences are sometimes committed by 12 and 13 year-olds. They present such a risk of harm that the court may come to the decision that a remand to secure accommodation is necessary to protect the public. We do not think that this decision is one that local authorities should be making, which would be the only alternative. It is not fair to impose this burden of responsibility on local authorities.
Amendment 178ZZAZA, however, raises quite different issues. It is inconsistent as between non-extradition and extradition proceedings. The noble Lord, Lord Beecham, has flagged up some of those inconsistencies. In the former, the age threshold for electronic monitoring of children remanded to non-secure local authority accommodation would be raised from 12 to 14 years. In extradition cases it would remain at 12 years of age. A similar inconsistency would arise depending on whether the child or young person is on bail or remanded to non-secure local authority accommodation. The age threshold is currently set at 12 years in both circumstances, but this amendment would raise the threshold to 14 years in respect of remands to non-secure local authority accommodation only. Furthermore, by removing the power of the court to use electronic monitoring in respect of 12 and 13 year-olds, the amendment could have the effect of more young children being remanded in secure accommodation. The availability of electronic monitoring can be the deciding factor in a court giving bail to a young offender.
Younger children are more likely to have risk factors that can be managed in the community with appropriate conditions and electronic monitoring to ensure compliance. Removing the power to monitor electronically children under the age of 14 would create a gap in the powers of the court to manage properly some children aged 12 and 13 who, regrettably, engage in serious criminal behaviour. Such monitoring is an essential tool for ensuring the compliance of children who do not meet the test for a secure remand but who nevertheless pose a risk of further offending. This risk is best met with a remand to local authority accommodation subject to curfew.
In terms of extradition, we are making provision for a hypothetical position in respect of a child subject to extradition proceedings. This will ensure fair treatment. I therefore urge the noble Lord to withdraw his amendment.
Baroness Whitaker
I apologise for not being here at the start of the debate. Has the Minister’s department carried out any research into the influence of the peer group on young offenders aged from 12 to 14? There can be very sympathetic officials in the institutions which hold these young people but the problem is that they get influenced, if not abused, by most unwholesome characters. I draw on rather out-of-date experience as a magistrate, but that was always a concern. If the Minister does not have the information now perhaps she could write.
Baroness Northover
I am happy to write to the noble Baroness. Of course she is absolutely right. We know very well that the influence of peer groups is a very important issue.
Lord Beecham
I thank the noble Baroness for the information that was conveyed to her from the Box but it does not quite reach the point that I was making. The point was that if the country to which the child is being extradited does not apply electronic monitoring, should we be doing it? That was my question, but I am not asking for an answer now.
Baroness Northover
I am very happy to write to the noble Lord on that point.
Lord Ramsbotham
I am grateful to the Minister for her reply and grateful too for the intervention from the noble Baroness, Lady Whitaker, and the noble Lord, Lord Beecham. I said at the beginning that I am glad to see the reforms that are implicit already in Clauses 91 to 94 but, as I am sure the noble Baroness realises, there is disquiet over the use of electronic monitoring for extended periods, particularly for young people. I suspect that this will return on Report, if not with my amendment then in connection with Clause 75, which was discussed on Tuesday. I am grateful that obviously work has been done to produce the answers to these probing amendments. In that spirit and with gratitude to the Minister I beg leave to withdraw the amendment.
Lord McNally
Lord Beecham
It would appear that I am in some danger of becoming a repeat offender when it comes to breaching protocol. I apologise to the House.
My only concern about the technical amendments in this group is the insertion in Amendment 178ZAZB of the word “accused” before the word “charged”. I appreciate that it is intended to correct what was described as an accidental gap in replicating earlier provisions, but it concerns me that we may apply electronic monitoring to people who have not been charged but merely accused of an offence in another jurisdiction. I wonder whether it is the right approach. Perhaps the noble Lord will want to think further on that. It strikes me as a little odd, in the same way as the previous matter we discussed struck me as odd. I may be entirely wrong but it seems to jar with the notion that a simple accusation would suffice to allow somebody to undergo electronic monitoring.
Lord McNally
My Lords, one of the uses of Committee is to allow noble Lords to scrutinise and to seek clarification. The noble Lord’s point is not covered in my notes. The amendments in this group are intended to be minor and technical. They set out a requirement for electronic monitoring in extradition cases that is consistent with its use under the Extradition Act 2003. Clause 88 is intended to create a test that is equivalent to that in Clause 87 which applies to young people who are charged with or convicted of an offence. “Accused” is the word used in the Extradition Act. If we did not change the wording of the Bill to match, we would create a lacuna whereby the courts would have only limited remand powers over an individual who was being extradited before being charged. I will clarify the noble Lord's point about the use of electronic tagging and write to him.
Lord McNally
Lord McNally
Baroness Northover
(d) accommodation, or accommodation of a description, for the time being specified by order under section 107(1)(e) of the Powers of Criminal Courts (Sentencing) Act 2000 (youth detention accommodation for purposes of detention and training order provisions).”
Baroness Northover
My Lords, this is a substantial group of amendments, many of which are minor and technical. However, there are a number of substantive amendments which the Committee will be interested in and which I will go through briefly. These relate predominately to the functions of the Secretary of State and the Youth Justice Board and are set out in Clauses 95, 96 and 97.
Amendment 178ZAE expands the definition of youth detention accommodation currently set out at Clause 95(2) to include any new form of youth detention accommodation specified by the Secretary of State under Section 107(1)(e) of the Powers of Criminal Courts (Sentencing) Act 2000. In recent years we have seen a significant reduction in the number of young people sentenced to custody. Although the number of those remanded has not shown the same reduction, we believe that the remand proposals contained within Chapter 3 have the potential to bring about a fall in the level of secure remand to youth detention accommodation also. If this occurs, and demand on the secure estate continues to fall, this may provide further opportunities to plan and pilot new forms of youth detention accommodation. Such accommodation would be developed with the aim of improving outcomes for children and young people, and this amendment would allow it to be used to accommodate remanded young people as well as those who are detained post-sentence.
Amendment 178ZBC extends the power in Clause 96 that gives the Secretary of State the power to make arrangements with providers of secure children’s homes to accommodate remanded young people so that the Secretary of State may also make such arrangements for the use of newly specified types of accommodation.
Amendments 178ZBA and 178ZBE provide for the Secretary of State’s functions in Clauses 95 and 96 to be exercisable concurrently with the Youth Justice Board. That is, both the Secretary of State and the YJB may exercise the power. They also allow the Secretary of State by order to provide that these functions should be exercisable solely by him or her. This order-making power is subject to the affirmative resolution procedure, as set out in Amendment 178ZBG.
In tabling these substantive amendments, the Government have responded to Parliament’s decision not to abolish the Youth Justice Board. These amendments ensure that the Youth Justice Board can continue to carry out its placement and estate management functions in relation to remanded young people. These amendments also provide a concurrent power, with the Secretary of State, for the Youth Justice Board to make payments to and recover costs from local authorities. Payments will be made to local authorities to enable them to take on greater financial responsibility for the costs of secure remand and to invest to help ensure that remands to custody occur only when appropriate. The clear intent is that this funding will be used only for the provision of youth justice services.
The last set of substantive amendments in this group, Amendments 178ZBJ, 178ZBK, 178ZBL and178ZBM, amend the test set out in Section 3AA of the Bail Act 1976 that a court must apply when deciding whether it may impose electronic monitoring on a child or young person as a condition of their bail. The amendments allow for imprisonable offences committed by a child or young person while remanded in custody under existing provisions or remanded in youth detention accommodation under the provisions of the Bill to be taken into account by the court when determining whether a child or young person has a history of offending. This change is consistent with the equivalent condition in Clause 87 relating to electronic monitoring of a child remanded to local authority accommodation.
Amendments 178ZBB, 178ZBH, 178ZBN, 178ZBP, 178ZBQ and 178ZBR are minor and technical amendments associated with the provisions in Chapter 3.
I should mention that we will arrange for the letter that my noble friend Lord McNally recently sent to all Peers regarding the Government’s youth justice amendments, to which I referred earlier, to be placed in the House Libraries. I beg to move.
Lord Beecham
I am grateful to the Minister for this group of amendments, with which we entirely concur. I am particularly glad that the wisdom of the House in ensuring that the Youth Justice Board has been preserved is reflected in here. I am unable to resist the temptation, given the name of the chief executive of the Youth Justice Board, to say that justice has been done. I am sure that Frances Done will be delighted to see these amendments and I congratulate the Government on their wisdom in accepting the original views of the House.
Lord McNally
“(8A) A function of the Secretary of State under this section (other than the function of making regulations) is exercisable by the Youth Justice Board for England and Wales concurrently with the Secretary of State.
(8B) The Secretary of State may by regulations provide that subsection (8A) is not to apply, either generally or in relation to a particular description of case.”
(a) which provides accommodation for the purposes of restricting liberty, and(b) in respect of which a person is registered under Part 2 of that Act.(10) Before the coming into force in relation to England of section 107(2) of the Health and Social Care (Community Health and Standards) Act 2003, subsection (9) has effect as if it defined “secure children’s home” in relation to England as accommodation which—
(a) is provided in a children’s home, within the meaning of the Care Standards Act 2000, in respect of which a person is registered under Part 2 of that Act, and(b) is approved by the Secretary of State for the purpose of restricting the liberty of children.”
Lord McNally
“(8) A function of the Secretary of State under this section (other than the function of making regulations) is exercisable by the Youth Justice Board for England and Wales concurrently with the Secretary of State.
(9) The power to make regulations under subsection (2) includes power to make provision about the recovery of costs by the Youth Justice Board for England and Wales.
(10) The Secretary of State may by regulations provide that subsection (8), or provision made by virtue of subsection (9), is not to apply, either generally or in relation to a particular description of case.”
Lord McNally
Lord McNally
“Regulations under this Chapter
(1) Regulations under this Chapter are to be made by statutory instrument.
(2) Regulations under this Chapter may—
(a) make different provision for different cases;(b) include supplementary, incidental, transitional, transitory or saving provision.(3) A statutory instrument containing regulations under this Chapter is subject to annulment in pursuance of a resolution of either House of Parliament, subject to subsection (4).
(4) A statutory instrument containing regulations under section 95(8B) or 96(10) (whether alone or with any other provision) may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.”
Lord McNally
“(5) In subsection (7), in the definition of “serious offence”, after “means” insert “(subject to subsection (8))”.
(6) After subsection (7) insert—
“(8) For the purposes of the application of this section to a person remanded on bail in connection with proceedings under the Extradition Act 2003—
(a) an offence is a “serious offence” if the conduct constituting the offence would, if committed in the United Kingdom, constitute an offence punishable in the case of an adult with imprisonment for a term of two years or more, and(b) the reference in subsection (1)(a) to a person being charged with a serious offence includes a reference to the person having been accused of such an offence.””
(2) In subsection (3), at the end insert “or youth detention accommodation”.
(3) ”
(a) ”
(b) the reference to being remanded to youth detention accommodation is to be construed in accordance with section 95 of that Act, and(c) those references include a reference to a remand to local authority accommodation under section 23 of the Children and Young Persons Act 1969.”
Lord McNally
“(8) Subsections (3) and (6) are subject to sections 87(9), 88(10) and 92(11) (references to remand to local authority accommodation or youth detention accommodation to include such a remand under section 23 of the Children and Young Persons Act 1969).”
Baroness Northover
Baroness Northover
My Lords, this package of amendments will give effect to the second stage of the Government’s approach to the simplification and clarification of the current release and recall provisions for determinate sentenced prisoners by bringing these provisions together within a single statute—the Criminal Justice Act 2003.
The current release and recall provisions are spread across a number of different statutes, subject to commencement orders with complex transitional and savings provisions and subsequent amendments. This has created an extremely intricate and unwieldy web of legislation which is very difficult to follow, even for criminal justice experts and practitioners. This in turn has been heavily criticised by the courts and calls have been made for the Government to simplify the provisions.
The first step in our approach to achieve this simplification was to introduce the provisions contained in Clauses 100 to 112 of Chapter 4 of the Bill. These amend the current 2003 Act provisions to establish the single regime that will apply to those sentences imposed on or after commencement.
The second stage of our approach, which is what this package of amendments will do, is to consolidate within the 2003 Act those provisions of the Criminal Justice Acts 1967 and 1991 that will be required to continue to apply to those prisoners who, at the time of commencement, are subject to the release arrangements of those previous statutory regimes. We have no intention of making substantial changes to the way in which the sentences of those existing prisoners operate and so these amendments do not change the release dates or licence lengths for those current prisoners. In practice, this means saving the current release regimes for the few remaining 1967 Act prisoners; 1991 Act prisoners serving long-term sentences of four years or more for sexual or violent offences—often known as “DCR” prisoners; and for current 2003 Act extended sentence prisoners. Going forward, however, all sentences imposed on or after the date of commencement will be subject to the 2003 Act release and recall arrangements, as amended by the provisions in this Bill, regardless of the date that the offender committed his or her offences.
That is the broad effect of this package of amendments. I would be happy to explain what each of the amendments does should your Lordships find that helpful, but in the interests of keeping my explanation to a minimum I propose simply to highlight the main features. I can assure your Lordships that, while these amendments are long and technical, they do not make substantive changes to the current release arrangements. They are intended mainly to make the legislation itself clearer, easier to follow and less open to misinterpretation.
Two new schedules will be inserted into the 2003 Act—the content of these make up the bulk of the amendments. The first, Schedule 20A, makes amendments to other statutes that are consequential on the amendments made to the 2003 Act. It also contains transitional provisions to allow prisoners released under the 1991 Act to be deemed to have been released under the 2003 Act, while preserving their current licence length. The second, Schedule 20B, reproduces within the 2003 Act the elements of the 1967 and 1991 Act release regimes that need to be preserved for those prisoners already serving these types of sentence. In other words, it achieves the consolidation of all the current release provisions into a single statute.
Connected to the introduction of new Schedule 20B, our intention now is to remove Clause 112. The clause contains a power to allow the Secretary of State to make an order by secondary legislation to bring the release and recall provisions of the Criminal Justice Acts of 1967 and 1991 into the 2003 Act. But with the introduction of these amendments, and Schedule 20B in particular, that consolidation now will be achieved on the face of the Act so that the order-making power is no longer necessary and can be removed. I commend this package of amendments to your Lordships and I beg to move.
Lord Beecham
My Lords, I welcome the clarification that this range of amendments brings about. I am particularly glad to see the mea culpa stance over Clause 112 standing part and hope that this presages greater use of the procedure whereby the Government withdraw proposals which are not satisfactory. I trust that this is the first swallow of a summer of such arrivals.
Lord McNally
Lord McNally
Lord McNally
“( ) In section 305(1A) (modification of reference to want of sufficient distress), inserted by paragraph 155 of Schedule 13 to the Tribunals, Courts and Enforcement Act 2007, for “In the definition of “sentence of imprisonment” in subsection (1) the reference” substitute “In this Part any reference”.”
“( ) section 23 and Schedule 6.”
Lord McNally
“Part 2Other amendmentsCriminal Appeal Act 1968 (c. 19)6 In Schedule 2 to the Criminal Appeal Act 1968 (procedural and other provisions applicable on order for retrial), in paragraph 2(4), for “Sections 240” substitute “Sections 240ZA”.
Immigration Act 1971 (c. 77)7 In section 7 of the Immigration Act 1971 (exemption from deportation for certain existing residents), in subsection (4), after “section 240” insert “, 240ZA or 240A”.
Road Traffic Offenders Act 1988 (c. 53)8 In section 35A of the Road Traffic Offenders Act 1988 (extension of disqualification where custodial sentence also imposed), in subsection (6)—
(a) omit “a direction under”;(b) in paragraph (a), for “section 240” substitute “section 240ZA”;(c) in paragraph (b), before “section 240A” insert “a direction under”.Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)9 The Powers of Criminal Courts (Sentencing) Act 2000 is amended as follows.
10 In section 82A (determination of tariffs), in subsection (3)(b), for “section 240” substitute “section 240ZA”.
11 In section 101 (term of detention and training order), in subsection (12A), for “the reference in subsection (2) of that section to section 240” substitute “the reference in subsection (2A) of that section to section 240ZA”.
12 In section 147A (extension of disqualification where custodial sentence also imposed), in subsection (6)—
(a) omit “a direction under”;(b) in paragraph (a), for “section 240” substitute “section 240ZA”;(c) in paragraph (b), before “section 240A” insert “a direction under”. International Criminal Court Act 2001 (c. 17) 13 In Schedule 7 to the International Criminal Court Act 2001 (domestic provisions not applicable to ICC prisoners), in paragraph 2(1)(d), for “sections 240” substitute “sections 240ZA”.”
Lord McNally
“(4) This section is subject to—
(a) section 256B (supervision of young offenders after release), and(b) paragraph 8 of Schedule 20B (transitional cases).””
Lord McNally
“Road Traffic Offenders Act 1988 (c. 53)1 In section 35A of the Road Traffic Offenders Act 1988 (extension of disqualification where custodial sentence also imposed)—
(a) in subsection (8), after “section” insert “243A(3)(a),”;(b) in subsection (9)(a), after “in respect of section” insert “243A(3)(a) or”.Crime (Sentences) Act 1997 (c. 43)2 In Schedule 1 to the Crime (Sentences) Act 1997 (transfer of prisoners within the British Islands), in paragraphs 8(2)(a) and 9(2)(a), after “sections 241,” insert “243A,”.
Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)3 In section 147A of the Powers of Criminal Courts (Sentencing) Act 2000 (extension of disqualification where custodial sentence also imposed)—
(a) in subsection (8), after “section” insert “243A(3)(a),”;(b) in subsection (9)(a), after “in respect of section” insert “243A(3)(a) or”.International Criminal Court Act 2001 (c. 17)4 In Schedule 7 to the International Criminal Court Act 2001 (domestic provisions not applicable to ICC prisoners), in paragraph 3(1), for “sections 244” substitute “sections 243A”.”
Lord McNally
Lord McNally
“Replacement of transitory provisions
(1) Chapter 6 of Part 12 of the Criminal Justice Act 2003 (release on licence) is amended as follows.
(2) In section 237(1)(b) (“fixed-term prisoner” includes those serving sentence of detention)—
(a) after “91” insert “or 96”;(b) before “228” insert “227 or”.(3) At the end of that section insert—
“(3) In this Chapter, references to a sentence of detention under section 96 of the Sentencing Act or section 227 of this Act are references to a sentence of detention in a young offender institution.”
(4) In section 244(3)(a) (duty to release prisoners: requisite custodial period), after “91” insert “or 96”.
(5) In section 250(4) (licence conditions)—
(a) after “91” insert “or 96”;(b) before “228” insert “227 or”.(6) In section 258 (early release of fine defaulters and contemnors), after subsection (3) insert—
“(3A) The reference in subsection (3) to sentences of imprisonment includes sentences of detention under section 91 or 96 of the Sentencing Act or under section 227 or 228 of this Act.”
(7) In section 263(4) (concurrent terms)—
(a) after “91” insert “or 96”;(b) before “228” insert “227 or”.(8) In section 264(7) (consecutive terms)—
(a) after “91” insert “or 96”;(b) before “228” insert “227 or”.(9) In section 265(2) (restriction on consecutive sentences)—
(a) after “91” insert “or 96”;(b) before “228” insert “227 or”.(10) In Part 2 of the Crime (Sentences) Act 1997 (life sentences: release on licence)—
(a) in section 31A(5) (termination of licences), in the definition of “preventive sentence”, after “a sentence of imprisonment” insert “or detention in a young offender institution”;(b) in section 34(2)(d) (interpretation), after “a sentence of imprisonment” insert “or detention in a young offender institution”.(11) In the Criminal Justice Act 2003 (Sentencing) (Transitory Provisions) Order 2005 (S.I. 2005/643), article 3(7), (10), (11), (12), (13), (14), (15) and (17)(a) and (b) (transitory provision replaced by this section) are revoked.”
Lord McNally
“( ) Section (Replacement of transitory provisions) applies in relation to any person who falls to be released under Chapter 6, or (as the case may be) under Chapter 2 of Part 2 of the Crime (Sentences) Act 1997, on or after the commencement date.”
Lord McNally
“Simplification of existing transitional provisions
(1) Chapter 6 of Part 12 of the Criminal Justice Act 2003 (“the 2003 Act”) is to apply to any person serving a sentence for an offence committed before 4 April 2005 (whenever that sentence was or is imposed).
(2) Section 258 of the 2003 Act (release of fine defaulters and contemnors) is to apply to any person who was, before 4 April 2005, committed to prison or to be detained under section 108 of the Powers of Criminal Courts (Sentencing) Act 2000—
(a) in default of payment of a sum adjudged to be paid by a conviction, or(b) for contempt of court or any kindred offence.(3) In accordance with subsections (1) and (2)—
(a) the repeal of Part 2 of the Criminal Justice Act 1991 which is made by section 303(a) of the 2003 Act has effect in relation to any person mentioned in those subsections;(b) paragraphs 15 to 18, 19(a), (c) and (d), 20, 22 to 28 and 30 to 34 of Schedule 2 to the Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Saving Provisions) Order 2008 (S.I. 2005/950) (which relate to the coming into force of provisions of Chapter 6 of Part 12 of the 2003 Act) are revoked.(4) Section 86 of the Powers of Criminal Courts (Sentencing) Act 2000 (extension of periods in custody and on licence in the case of certain sexual offences) is repealed.
(5) Schedule (Amendments of the Criminal Justice Act 2003: transitional and consequential provisions) (transitional and other provisions consequential on this section) has effect.
(6) Schedule (Criminal Justice Act 2003: restatement of transitional provisions) (amendments to the 2003 Act restating the effect of certain transitional and other provisions relating to the release and recall of prisoners) has effect.”
Lord Lloyd of Berwick
“Duty to release certain prisoners serving a whole life sentence
In Chapter 2 of Part 1 of the Crime (Sentences) Act 1997 after section 28 insert— “28A Duty to release certain prisoners serving a whole life sentence
(1) In the case of a life prisoner who has been made subject to a whole life order, and has served 30 years of his sentence, it shall be the duty of the Secretary of State, with the consent of the Lord Chief Justice and the trial judge if available, to refer the case to the Parole Board.
(2) If the Parole Board is satisfied—
(a) that it is no longer necessary for the protection of the public that the prisoner should be confined, and(b) that in all the circumstances the release of the prisoner on licence would be in the interests of justice,the Parole Board may direct his release under this section.(3) Where the Parole Board has directed a prisoner’s release under this section, it shall be the duty of the Secretary of State to release him on licence.””
Lord Lloyd of Berwick
My Lords, this is one of three amendments in my name in this chapter of the Bill. They are grouped separately but they all have one thing in common: like Clause 113, they are an attempt to undo some of the harm that was done by the Criminal Justice Act 2003. The introduction of indeterminate sentences for the protection of the public—now to be abolished—has had disastrous consequences, as we all know, to which we will later come in further amendments.
The IPP sentence is but one example of the harm that has been done by the 2003 Act. Amendment 178A deals with another example. It concerns the 41 prisoners currently serving whole life sentences, who have no hope of being released except on compassionate grounds. If you ask me how many such prisoners have ever been released on compassionate grounds, the answer is none.
The position was very different before the 2003 Act came into force. In those days, the tariff was fixed by the Home Secretary. In the most serious cases he would impose a whole life sentence, as judges do now, but there was this vital difference: it was then the settled practice of successive Home Secretaries to review such sentences after 25 years. If the prisoner had made exceptional progress and there was no other purpose in keeping him in prison, he would be considered for release.
The question is why that humane practice was not re-enacted when the 2003 Act came into force. It cannot, one imagines, have been deliberate unless the settled practice of Home Secretaries had proved to be unsatisfactory in some way, and there is no evidence of that, so it must have been overlooked. We now have a chance to put it right. We can give these 41 prisoners serving whole life sentences the same chance of a review as they had before the 2003 Act came into force. Of course it does not mean that they will be released because it would depend on the circumstances of each individual case, but it does at least mean that they will have a hope of review. That is the very limited purpose of this amendment.
Lord Clinton-Davis
My Lords, I welcome every word that has been said to justify this amendment. It is altogether impossible that 41 prisoners serving whole life sentences should be imprisoned in this way. What the noble and learned Lord has said is absolutely essential as far as having a civilised attitude where the criminal law is concerned. People serving whole life sentences will be able to look forward with some hope if the conditions in the amendment are satisfied and the Parole Board accepts the submissions that are made. I thank the noble Lord for raising this vital point.
Lord Judd
My Lords, I was very glad to add my name to this amendment. I have the utmost respect for the noble and learned Lord, Lord Lloyd of Berwick. He always brings to our deliberations his very high standards of legal expertise, but what I like about him, if I am allowed to say so, is that that legal expertise is always tempered with the values of the civilised society and a strong sense of humanitarian concern. Long may he remain with us to bring those to bear.
We do not indulge in vengeance in our penal system. We are about an appropriate punishment for a serious offence, and that must happen because it is absolutely right. But we are also about the challenge of rehabilitation. However dreadful the crime that has been committed and however much we may feel a sense of solidarity and empathy with the victims of crime, the challenge in a civilised society is to try to enable the perpetrator of the crime to see the significance of what they have done, to recognise and accept responsibility for it, and to move on to a positive and creative life. If we do not always strive to try to enable someone who has done a dreadful thing to become a better person and to rejoin society as a better person, I think that we demonstrate a lack of self-confidence in our own civilised values. Of course it is no good sentimentalising this issue. There will be some people where these endeavours make no progress in the end, and there are others where it may just simply be impossible to consider release. But the aspiration should be that the person will be released as a positive, reformed and different member of society, contributing constructively.
I know about this from indirect personal experience, if that is possible. For 10 years, my wife served on the board of a prison exclusively for lifers. In some ways it was an avant-garde prison at that time, but I was always encouraged by the stories she brought back about the exciting and imaginative work being done there. One of her fellow governors was the late Roman Catholic Archbishop of Liverpool, who at that time was the Roman Catholic Bishop of Portsmouth. He served with great commitment on that board and we were all great friends. We used to discuss the prison and its works. We would take heart from the encouraging things that were happening and laugh about some of the warm and positive stories that came out of the situation, but I remember that he would always say, “Basically, it is a very sad place”. What my wife talked about is something that I find very difficult to cope with: the prisoner who sees absolutely no light at the end of the tunnel. How does this help the process of rehabilitation? How does this help the process of reconstructing a life? From this standpoint, I believe that the amendment moved by the noble and learned Lord, not for the first time, can claim to stand for civilisation and humanitarian values in society. We should warmly applaud it.
The Lord Bishop of Chichester
My Lords, it will not surprise you that I wholeheartedly support the amendment. I am very grateful to the noble Lord, Lord Judd, for warning against sentiment. There is a robustness about offering human beings hope that contributes specifically to the rehabilitation and reconstruction of which he spoke. However, this is about much more than simply giving hope to individuals, because a society that does not give hope to individuals is unlikely to have hope for itself in areas in which it feels as a society hopeless. In terms of a civilised society, this is a very humane amendment which is necessary for our societal good as well as for the individuals for whom it is designed.
Baroness Stern
My Lords, I support the amendment and endorse the excellent speeches made by all those who have spoken so far. I stress, as they have, that this is not an amendment about releasing any particular person who has done any particular thing; it is an amendment about what sort of penal system we have and its values.
One of the consequences of the very welcome abolition of the death penalty—I declare an interest as chair of the All-Party Group for the Abolition of the Death Penalty—was a search for another sentence for the most serious and dreadful crimes. A few countries decided to adopt the life-without-parole alternative. In the United States in 2009, there were more than 2,500 juveniles serving a sentence of life without parole, which is probably at the extreme end of the use of the sentence.
I have always been of the view that a non-reviewable life sentence, or what is called by the courts an irreducible life sentence, with no provision for reconsideration by the authorities whatever the circumstances—be it their health condition, their extreme old age or a dramatic change in the way the person sees the world—must surely constitute inhuman and degrading treatment. I was one of those disappointed by the European Court of Human Rights not reaching that view in the case of Vintner and others v United Kingdom. That case was barely reported, probably because the court found in favour of the Government; it seems to be the other cases that are always widely reported and commented upon. As the noble and learned Lord, Lord Lloyd, said, the court’s judgment was by a slim majority of four against three. I shall quote briefly from the opinion of the three dissenting judges. They said:
“we conclude that there was a procedural infringement by reason of the absence of some mechanism that would remove the hopelessness inherent in a sentence of life imprisonment from which, independently of the circumstances, there is no possibility whatsoever of release while the prisoner is still well enough to have any sort of life outside prison”.
In 2007, the European Committee for the Prevention of Torture said of the whole life sentence:
“the CPT has serious reservations about the very concept according to which such prisoners, once they are sentenced, are considered once and for all as a permanent threat to the community and are deprived of any hope to be granted conditional release”.
The German constitutional court found in 2010 that if someone had no practical prospect of release, a life sentence would be cruel and degrading and infringe the requirements of human dignity provided for in Article 1 of the German Basic Law. I also remind the Committee that the statute of the International Criminal Court—which, as noble Lords will know, deals only with the most heinous crimes—expressly provides for a review of detention by the court after 25 years.
Baroness Mallalieu
My Lords, I support the amendment. I do so in part having been around prisons in Hong Kong some years ago—I have no reason to think that the position has changed since—and seen considerable numbers of very old and very sick men who were there because there was no means of their ever being released. They presented very considerable difficulties for the prison service and they presented difficulties in their management during their term in prison because they had nothing to gain by behaving well during their time there.
It requires political courage to accept an amendment such as this—just as it requires courage on the part of a judge who is dealing with a case which has aroused great public emotion, just as it requires courage on the part of a parole board to deal with a prisoner who has been in the media and attracts media attention—but if we believe that people can change, and if we believe in reformation, then it is essential that there is something at the end of the tunnel for those who can demonstrate that they have come through the process and now put behind them any capacity to be dangerous. For that reason I very much hope that, difficult as it is, the Government will find the courage to put some provision like this in to the Bill.
Lord Pannick
My Lords, I, too, support the amendment, for all the reasons that have been given. It is surely inhumane to say to a prisoner that they will remain in prison for the whole of their life, other than in the most exceptional compassionate circumstances—which I understand to mean that they are dying—whatever progress they may make, however long a period may elapse. Surely it is also very damaging to prison order to have in prison this number of prisoners who have no incentive whatever to progress, to behave and to move towards a responsible approach.
The noble and learned Lord, Lord Lloyd of Berwick, mentioned that the Vintner case would inevitably go to the Grand Chamber. I very much hope and expect that the Grand Chamber will take into account the views of those in your Lordships' House who have expressed the opinion that this is indeed an inhumane way to treat prisoners.
I note that the amendment is drafted in terms of a discretion for the Parole Board. I would understand that to be the case because the Secretary of State faces this difficulty: either he retains an absolute position, whereby there will be no review; or he recognises that there will be a review, but by an independent body—the Parole Board. As I would understand it, the Secretary of State is simply unable, as a result of earlier European Court judgments, to take upon himself a statutory power to review the position and to decide on release after 30 years.
I also note that the amendment is drafted in terms of it being the duty of the Secretary of State,
“with the consent of the Lord Chief Justice and the trial judge if available”.
I would welcome assistance from the noble and learned Lord, Lord Lloyd of Berwick, when he comes to reply, as to whether it is his intention that after 30 years it should be the duty of the Secretary of State to refer the matter to the Parole Board only if the Lord Chief Justice and the trial judge—that is, both of them, if the latter is available—consent. Will he explain the purpose of involving the Lord Chief Justice and the trial judge? Is it intended that they should enjoy some discretion; and if so, pursuant to what criteria?
I respectfully suggest that it would be more appropriate to say that these matters should automatically be referred to the Parole Board after 30 years. That is a very long time. Of course the Lord Chief Justice of the day and the trial judge, if available, should be invited to give their opinions on what should happen to the individual, but I am troubled by the idea that there could be an impediment to the Parole Board even considering the matter after 30 years if, say, the trial judge thinks it inappropriate to do so. That is a drafting question. I strongly support the principle of the amendment, for all the reasons that have been given already, and those that I have added.
Lord Borrie
My Lords, I have a natural sympathy with the amendment proposed by the noble and learned Lord. I was once, admittedly a long time ago, a member of the Parole Board, when it was fairly new. That was under the chairmanship of Lord Hunt of Llanfair Waterdine, who was in this House. He was sometimes known as Lord Hunt of Everest, for obvious reasons. I served on the Parole Board then and thought that it was a rather good body. The noble Baroness, Lady Howe of Idlicote, was a fellow member. I have fond memories of it and thought it a good body with a good mix of experience of criminal law, criminals and criminology—in my case, apparently. It is bound to be even better today in terms of experience. I am glad that it has a central position under the amendment.
I have one query, rather on the same lines as that of the noble Lord, Lord Pannick. It is a question to the noble and learned Lord about the difference between duty and discretion, and who has what. I would also like to know the answer to the question from the noble Lord, Lord Pannick—as would he. My question is a slightly different twist on that. In the amendment there is a duty on the Secretary of State, and then if the matter goes to the Parole Board, the board has discretion. Surely, even among those who have spoken this afternoon who are most sympathetic to the long-term prisoner, we can all think of those who should never come out of prison under any circumstances. That is clearly known and pretty definite. I wonder why the amendment does not impose a discretion on the Secretary of State rather than a duty, on the basis that it will be a complete waste of time for the Parole Board to examine or review certain cases on which every report, indication and study from within the Prison Service shows that it would be quite unsafe at any time to allow the release of certain people given life sentences. I query the duty and discretion bit from a very different angle from the noble Lord, Lord Pannick, but pursuing the same point. I certainly believe that most cases should have a review and that should be by the Parole Board. That would be excellent and I hope that the amendment will be carried.
Lord Ramsbotham
My Lords, I support my noble and learned friend Lord Lloyd on this excellently moved amendment and pick up on a point made by the noble Lord, Lord Pannick. He mentioned the impact on prison order. I will, as it were, personalise this. As Chief Inspector of Prisons I was always interested in how prisoners serving natural life sentences were managed. Without the word “hope”, which has appeared in the contributions of many noble Lords, those prisoners had nothing to look forward to. More importantly, the staff had—in theory—nothing to offer the prisoner.
Noble Lords may remember the name of Dennis Nilsen, who was awarded a natural life sentence for a series of perfectly dreadful crimes. Noble Lords may not know that one aspect of education denied to blind children is access to science textbooks because graphs cannot be read in Braille. One of the education officers in the prison, looking at Dennis Nilsen and his characteristics, reckoned that something there could be harnessed. Nilsen was taught to write in Braille. Then, over four years, he described graphs in a science textbook in a way that would be understood, and translated his descriptions into Braille. After four years, blind children had access to a science textbook, thanks to the activities of someone who, in theory, had been rejected by society. I talked with Nilsen and will not describe that. But I will never forget talking to the education officer who had had the wit to realise that there was something in Nilsen that could be harnessed to the public good. She used the word “hope”, which was present at the time, and said how essential it was that she had hope that something could be achieved. I was enormously disturbed when that hope was removed by the 2003 Act. I very much hope that the Minister will be able to respond to this amendment.
Baroness Prashar
My Lords, I support the amendment. As the former chairman of the Parole Board, I agree with most of the comments that have been made so far in the debate. The discretion should be with the Parole Board and there should be an automatic review after 30 years. The concepts of hope and incentive are very important. In my experience, the fact that cases would go before the Parole Board was an incentive for prisoners. That is an important aspect. The Parole Board is also very good at risk assessment. It should be given that discretion with all the reports. I agree that it should then be the duty of the Home Secretary to accept the recommendation made by the Parole Board. I would very much like the Government to support the amendment.
Baroness Howe of Idlicote
My Lords, I briefly add my support to the amendment of the noble and learned Lord, Lord Lloyd. As has been rightly said, he stands up for instances where justice and fairness clearly need to be not just seen but interpreted correctly. I will also comment on what my noble friend Lord Ramsbotham said about this business of hope in what you try to achieve and for the individual who is there for life—for 30 years, anyhow—and about incentivising activities that could be of interest and help to any future he might have.
As the noble Lord, Lord Borrie, said, I was a very early member of the Parole Board, and I think that the independence of the Parole Board in looking at these matters is absolutely crucial. I am a little doubtful about how important the Secretary of State’s role may be, not least if—as it will be—it were years after the offence was tried and committed and the decisions made. However, whether or not his role is important and appropriate, it will be most important that the Parole Board has independence and stands back.
Lord Beecham
My Lords, there is certainly a unanimity of view in the debate thus far that the present system is not satisfactory. It should perhaps be pointed out that there have been very few instances of compassionate release, including three cases arising out of the Good Friday agreement and the case of the East End criminal, Reggie Kray, but that is a little beside the point.
My problem, such as it is, with the noble and learned Lord’s amendment, is more in the rubric than in the intention. It is clear that there will always be some cases in which release will not and should not occur. I suspect that there will be few, but there will be some. The public need to be persuaded that the people who are not reformed and who might well continue to constitute a danger will not be released. There will always be a small number of those.
The amendment refers to the,
“Duty to release certain prisoners serving a whole life sentence”.
I can see whence that comes—that is the end of the process, as it were, which would be acceptable—but as it stands, the wording seems to imply an implicit or explicit duty to release prisoners serving a whole life sentence instead of posing the duty to consider the release. With respect to the noble and learned Lord, that would have been a better way to phrase the amendment and would give the public more assurance than what appears on the face of it—and I appreciate that it is only on the face of it—to be an absolute duty to release certain prisoners serving a whole life sentence.
Lord Lloyd of Berwick
That ignores the function of the Parole Board, which has the discretion, not the Minister.
Lord Beecham
That is precisely my point. The amendment rightly envisages a duty to refer to the Parole Board, but on the face of it it looks as though there is a duty of release ab initio. That is not the noble and learned Lord’s intention—and I say this with great respect, because of course he is a very eminent and learned judge—but it might have assisted his case if it had been put in that way. That point in a sense echoes the point made by my noble friend Lord Borrie.
It is sensible to restore a situation in which a release after 30 years can be contemplated and, after due process, properly agreed. If the Parole Board adjudges that it is safe to release someone, that should be the Secretary of State’s duty at that point. In fact, relatively few people are serving these sentences—I think there are 40 prisoners, and that 20 have been sentenced in that way in the last 10 or 12 years as a result of their trial and the conditional decision at the time—so I think there is a way forward on this, with a slight modification of the way in which the amendment is phrased, and I hope that the Government will look sympathetically on it while clearly bearing in mind that there will be some prisoners for whom, in the end, there will be no hope of release. One hopes that there will not be many in that category, but there will be some, and that ought to be recognised from the outset.
Lord McNally
My Lords, the noble Lord, Lord Beecham, referred to the unanimity of view in the House during this debate. I sometimes think that perhaps a joint meeting of both Houses would be interesting when we discuss these issues. Nevertheless, this House has a long and proud history of providing a platform for penal reform, and it has certainly lived up to that reputation today.
I make one or two preliminary comments. The noble Baroness, Lady Stern, referred to the campaign to abolish the death penalty. Like many in this House I am old enough to remember that campaign, and I remember that part of it, which swung many MPs, was the proposal that life would mean life. It has always been a problem area, particularly for those who have committed the most horrific crimes.
The story that the noble Lord, Lord Ramsbotham, told was very encouraging in that it told of someone’s capability do good, even after the most horrific crimes. However, that capacity to do some good would not convince me to release a dangerous person into the community—and it is that test that has to be passed. I would hope that even those who spent the rest of their lives in jail would find within their confinement a capability to do good.
I think that we will return to this theme on a number of occasions in the next hour or two, as various amendments come up. The noble Baroness, Lady Stern, asked what sort of penal system and what sort of values we should have, and the noble Baroness, Lady Mallalieu, called for courage. Courage is certainly needed, but so is a practical use of the art of the possible. Penal reform is always a balance between humane treatment of those who are in prison, concern for the victims of crime and the retention of public confidence in our system of justice. Unless we can convince the public of the elements of punishment and public protection within the system, we will not get their buy-in to rehabilitation, which as I have often said from these Benches is very much part of what I and the Lord Chancellor see as built into the system. However, unless we can carry colleagues and the public with us and retain public confidence, we will not get the kind of reform that we want. I freely acknowledge that carrying through some of these reforms is an exercise in the art of the possible in what will win the confidence of the other place and the public.
As the noble and learned Lord said in introducing his amendment, things were different some time ago. One good thing to my mind about recent reforms was that all tariffs are now judicially determined. I am one of those—and I share it in other cases as well—who thinks that we should rely on judicial judgment in these matters. The imposition of minimum terms and whole life orders is now a matter that is exclusively for the judicially. I was very interested in his views on the judgment of the European Court of Human Rights. I tend to agree with the noble Baroness, Lady Stern, that when the Court gets it right it does not get much coverage. I am sure that if it reverses its decision, it will be page 1 again. Nevertheless I was a little worried that both the noble Lord, Lord Pannick, and the noble and learned Lord seem to think that a majority verdict was somehow of less value. A verdict is a verdict, and a win is a win. I am sure that he has been on the winning side a few times in those circumstances—I knew I was tempting fate.
Lord Lloyd of Berwick
Yes, the Minister was tempting fate, but I am very grateful to him. We said that it was by the very slenderest of majorities because three judges decided one way, three judges decided the other way and the seventh judge decided with the majority on a reason that, at any rate, I simply cannot understand. It seemed to have nothing to do with the case. Anyway, we will know when it goes to the Grand Chamber.
Lord McNally
When I read the football results on a Saturday night and Blackpool have won four-three, I am not interested in whether the final goal was thought to be offside as long as it counted, but I am sure that is not a legal opinion.
As has been explained, the amendment provides for the possibility of a conditional release of a prisoner serving a life sentence with a whole life tariff once he or she has served 30 years. It would produce the odd effect that an offender who had committed the most exceptionally serious crimes could be considered for release earlier than a life sentence prisoner with a determinate minimum term of more than 30 years. The minimum term or tariff under a life sentence is the period which the court determines the offender has to spend in custody for the purpose of punishment and deterrence. In other words, it reflects the seriousness of the offence. Schedule 21 to the Criminal Justice Act 2003 provides guidance to the courts on the determination of a minimum term for a life sentence imposed for murder. It provides for a whole life tariff to be the starting point for the most exceptionally serious cases, where the offender was aged 21 or over at the time the murder was committed.
The types of case that might attract the whole life tariff are: the murder of two or more persons where each murder involves a substantial degree of premeditated planning; the abduction of the victim or sexual or sadistic conduct; the murder of a child involving the abduction of the child or sexual or sadistic motivation; a murder done for the purpose of advancing a political, religious or ideological cause; or a murder by an offender previously convicted of murder. Few would argue against these types of case representing crimes so heinous that the court may well consider the appropriate punishment to be that the offenders must be incarcerated for the rest of their lives. Those punishments are, as we would expect, rarely used. The noble Lord, Lord Beecham, referred to a figure; the actual figure is that 47 prisoners are now serving a whole life tariff.
We have already referred to the fact that the Government's position on this was upheld in the European Court of Human Rights. We will await the outcome of the appeal, but our position stands. Nevertheless, if a stage is reached where the continuing incarceration of a whole life tariff prisoner is found to be inhuman and degrading, for example where the person is terminally ill or severely incapacitated and poses no further risk, the Secretary of State has the power to release the prisoner on compassionate grounds.
The Government do not therefore consider that it is necessary or desirable to accept this amendment. The court will have taken full account of the circumstances of the offence and the offender in determining that the whole life term is appropriate. Such appalling cases are mercifully rare, but judges can legitimately find that lifelong incarceration is necessary as a punishment. If the detention of a whole life tariff prisoner could no longer be justified and became inhuman and degrading, there is already the mechanism allowing for his or her release. On those terms, I ask the noble Lord to withdraw his amendment.
Lord Pannick
On public confidence, which the Minister rightly emphasised is so important in this area, why does he think that the public should not have confidence in a system in which, after 30 years, an independent parole board can ask itself whether it is any longer necessary for the protection of the public, and whether it would be in the interests of justice, that this person remains in prison. Why should the public not have confidence in a law along those lines?
Lord McNally
Some future Government may well bring forward a proposal along those lines. The judgment of the Government at the moment is that on a law that is safely in judges’ hands for determination, and that applies to a specific number of the most serious crimes, the position as it is now is best in retaining public confidence. It is a matter of political judgment, and the political judgment is that to move on this point, at this point, would not retain public confidence in a package in which we are trying to make moves in certain directions and carry colleagues who are not as enthusiastic as this House on some of these matters.
Lord Judd
In the last few minutes the Minister has encouraged me, because he has said that at some point it may be appropriate to introduce legislation that meets the arguments that are being put. It is not the first time that I have heard the noble Lord refer to the importance of holding public confidence, and we all understand that point, but it is not a matter of accepting as inevitable the existing state of public opinion. We have to be very careful that we are not, in effect, running scared of the sensationalist media. We really should be not only respecting public opinion and public confidence but helping to shape public confidence by putting forward the positive argument for change. That is essential to successful democracy. If we have become convinced that this is the right thing to do, we have to speak up for it.
Lord McNally
I entirely agree. That is why I said in my opening remarks that I am proud that this House has been the platform for penal reformers to argue their case over centuries, but I also say to this House that we have to carry another place and public opinion with us in these matters. One of the things I am most proud of is that this Government, and the Ministry of Justice under this Lord Chancellor, have been willing to try to educate public opinion. Some of the measures in this Bill will, I hope, move that forward, but no matter how much courage is used in expounding these views, if the result is for the public to lose confidence in the criminal justice system, those are Pyrrhic victories indeed.
Lord Clinton-Davis
Does the right honourable and learned gentleman—sorry, whatever you are.
Lord Clinton-Davis
Does the Minister not envisage that the public can sometimes be wrong? There is sometimes a disconnection between the views of the public and of the legislature, in this House and in the other one.
Lord McNally
From William Wilberforce to Sydney Silverman campaigns have been fought, and fought successfully. I am sure that this debate will be repeated in debates on other amendments, but I can only make the point so many times that politics is the art of the possible. We believe that the package of reforms here carry forward some of the interests of some of the Members of this House. However, they must also recognise that wider public opinion—and wider political opinion—does not share all their ambitions at this moment. We are all involved in debate and political education, and I welcome this debate as a contribution to that, but I have to deal with political reality as well.
Lord Lloyd of Berwick
My Lords, I am grateful to the Minister for his reply. The views of the House today could not really be more unanimous. It is clear that every single person who has spoken is in favour of this idea. I would like to mention them all but I shall mention particularly the right reverend Prelate the Bishop of Chichester, as he happens to be—
Lord McNally
I hate to intervene, especially in the middle of a tribute being paid to a Bishop, but I wonder whether the noble and learned Lord would ponder my suggestion that a joint meeting of both Houses would produce such unanimity. The Members at the other end actually have to face the public in a way that this House does not.
Lord Lloyd of Berwick
Indeed. In a sense, that is the only point that the Minister has made, to which the answer surely is that it is occasionally possible for the House of Lords to lead the way, to influence the other place and even to influence the public. If that were possible, this would be an opportunity to do it. I would like to mention particularly the observations of the noble Baroness, Lady Stern, with all her experience and knowledge of this subject, and the right reverend Prelate because he is my diocesan bishop and I feel therefore that I owe him that duty. I beg leave to withdraw the amendment.