Home Detention Curfew and Requisite and Minimum Custodial Periods (Amendment) Order 2024

Tuesday 10th December 2024 Lords Chamber

Motion to Approve

16:28

Moved by

[Lord Ponsonby of Shulbrede]

That the draft Order laid before the House on 13 November be approved.

Relevant document: 10th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Ponsonby of Shulbrede) (Lab)]

My Lords, in moving this order, I thank members of the Secondary Legislation Scrutiny Committee for the scrutiny of this statutory instrument. The Government laid this draft order on 13 November. I hope that has given noble Lords an opportunity to scrutinise the order and its accompanying explanatory documents. I welcome this further opportunity today to be clear about what the order will do and the Government’s reasons for taking these measures.

The draft order is a key part of our continuing efforts to resolve the capacity crisis in our prisons. After inheriting from the previous Government a prison system on the verge of collapse, on 12 July the Lord Chancellor was forced to announce a measure to address the immediate risk of running out of prison places. This was a change to modify the automatic release point for those serving standard determinate sentences from 50% to 40%. Specified offences were excluded from this modification. The draft order before us now makes further important changes to that original measure by excluding further offences from this modification.

As part of our continuing efforts to avoid running out of prison spaces, the order amends the provisions relating to the home detention curfew—HDC—by extending the maximum time that an offender can spend on HDC in the community. HDC enables eligible, risk-assessed offenders to be released from prison six months early, subject to an electronically monitored curfew. We are proposing to extend the maximum time that an offender can spend on HDC from six months to 12 months. To be clear, the eligibility and suitability criteria remain the same—for example, sex offenders are still excluded in statute and those serving sentences linked to domestic abuse are presumed unsuitable under the policy.

It is right that the sentencing review is given time to do its work, but the capacity crisis in our prisons has not gone away. When we introduced emergency measures in July, we believed that they had bought us about a year. However, after the summer of disorder, the next crisis could be just nine months away. For that reason, we must implement further measures urgently to ensure that we do not face running out of places again. This change to HDC will help to ensure that the criminal justice system is able to function as it should, helping to prevent further acute capacity pressures and avoid running out of prison places, which would cause criminal justice gridlock.

As to the purpose of this draft order, it relates to release measures within the Criminal Justice Act 2003. The first part of the draft order deals with HDC. HDC has been in operation since 1999. The scheme enables certain prisoners to be released from prison early while remaining subject to significant restrictions on their liberty. Offenders who are released from custody on this basis are tagged and placed on a curfew. This curfew must be for at least nine hours per day, by law, but is generally around 12 hours per day as a matter of policy. The curfew requirement must remain in force until they reach their conditional or automatic release date. Those released on HDC are subject to probation supervision and other restrictions as necessary. These may include GPS location and alcohol monitoring, exclusion zones, non-contact conditions and travel restrictions. If offenders breach the terms of their conditions, they can be recalled to custody to serve the remainder of their custodial sentence.

The rules on eligibility will not change as a result of this draft order. Offenders must complete half of the custodial part of their sentence before they can be considered eligible for HDC. Release on HDC is also entirely discretionary. There are a number of offences that are excluded from its scope by statute—for example, serious violent offences and all sexual offences. Other types of offending are presumed unsuitable as a matter of policy, including those often associated with domestic abuse, such as stalking, harassment and coercive control. Offenders serving sentences for any of the presumed unsuitable offences will not be considered for release unless the prison governor is satisfied that there are exceptional circumstances justifying this. Any offenders who meet this test will still be subject to a rigorous risk- assessment process before release on HDC is approved.

We are proposing to change the maximum period that an eligible prisoner may spend on HDC. We plan to extend it to 12 months from the current maximum of six months. Offenders eligible for HDC will continue to be risk-assessed and will still be subject to strict licence conditions and an electronically monitored curfew. As the previous Prisons Minister stated in February, the reoffending rate for prisoners released directly from custody was close to 50%, but for the types of offenders released on to HDC it was 23%.

The previous Administration committed to doing a review when HDC was extended from four and a half months to six months. That review did not take place, and the growing crisis in our prisons has meant that we need to take further action. HDC is closely monitored by HMPPS and the MoJ, and data on releases and recalls is regularly published. That will continue. I must be clear that this measure is urgently needed to reduce the pressure on the prison system. The challenges facing us across the prison estate are such that we must take urgent action to allow the sentencing review to take place. By extending HDC, we are using a long-standing mechanism that has robust safeguards built into it.

The order will also amend the Criminal Justice Act 2003 (Requisite and Minimum Custodial Periods) Order 2024, which established the SDS40 early release measure by modifying the automatic release point for those serving standard determinate sentences for eligible offences from 50% to 40%. The SI seeks to exclude six further offences from the early release measure.

SDS40 was delivered extremely effectively, but there was a problem with 37 prisoners who were released in error. Those offenders had been prosecuted under a repealed law that we had not excluded from SDS40. The Court of Appeal had ruled that we should treat the offenders who had been prosecuted under this offence after it had been repealed as if they had been prosecuted under the new offence, which was already excluded from SDS40. That ultimately meant that those prisoners were not identified as being ineligible for early release under SDS40. All the offenders released in error were returned to custody.

Subsequently, a thorough search uncovered similar anomalies where legislation creating criminal offences has been repealed and replaced. We had already taken the decision to exclude such offending, which relates to stalking, harassment, sexual harm and so-called revenge pornography, from the scope of emergency early release.

We are therefore acting quickly to exclude five further offences from SDS40 to ensure that the spirit of the original exclusions is delivered. This will ensure that anyone convicted of any of these offences cannot be released early under SDS40.

The draft order also excludes murder from SDS40. Anyone convicted of murder in the UK would have received a mandatory life sentence so would not be eligible for release under SDS40. However, some jurisdictions do not have life sentences so it is possible that in a small number of cases a UK national convicted of murder in a foreign jurisdiction may be given a determinate sentence for murder by that foreign court and may then be repatriated to the UK to serve that sentence in a prison in England and Wales. We want to ensure that no offender in this position could be released under SDS40.

Shortly after coming to power, the Government took decisive action to stop our prisons from collapsing. SDS40 was an emergency response to the crisis that we were faced with. We worked at pace to ensure that the scheme was as effective as possible while protecting the public by excluding the most serious offenders and providing specific protections for victims of certain domestic abuse offences.

We have kept SDS40 under constant review and are now acting quickly to address a small number of anomalies in the original legislation. The draft order extends to England and Wales only, and there should be no direct effect on the devolved Administrations. I beg to move.

[Baroness Newlove (Con)]

My Lords, both as Victims’ Commissioner and a victim going through the criminal justice system, I was horrified to read the NAO report published week which assessed government plans to expand the prison population. The report told us that on current forecasts the population would exceed prison capacity by 12,400 by the end of 2027. It is impossible to see how this can be absorbed by any building programme, let alone one that can be completed in just three years. It leaves the Government in an impossible position of having to explore all alternatives and it is against this backdrop that we find ourselves here today.

I am told that the home detention curfew scheme is hugely effective. Other than in the context of reducing the prison population, I am not sure how this statement can be made. As far as I am aware, there has been no recent evaluation of the scheme, but I would be interested to hear on this point from the Minister. Prison governors are responsible for selecting offenders who are suitable for the scheme. It is to their credit that compliance levels are relatively high. However, can we really be confident that current compliance levels will remain if the scheme is, in effect, doubled in length? Again, I would be interested to hear the Minister’s view.

It will come as no surprise when I say I come to this debate from the perspective of the victim. As I have said before, most victims seek justice, not vengeance. On hearing a sentence being delivered, the victims expect the sentence handed down to be served in full. This is not unreasonable; surely it is what we mean by justice. Victims listen to the remand time that has been deducted from the sentence; they know that part of the sentence will be served on licence, but they struggle to accept a prison sentence being reduced—by up to 12 months—through one or other early release scheme simply to reduce prison population pressures.

I fear that retrospective pruning of sentences by all successive Governments over the years has had a corrosive effect on public confidence in our justice system. How can you trust a justice system if all Governments keep moving the goal posts? It also adds an extra layer of complexity on sentencing and, heaven knows, sentencing is already complicated in the first place.

I make a plea to this Government and future Governments: let this be the very last time we have to extend an early release scheme to bail us out of another prison crisis. We need a sustainable sentencing regime where the sentence handed down is the same as that victims hear and the same as that the offender will serve, and we need a prison system that has the resilience and the means to meet the challenge.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, we support the principle of this order and I thank the noble Lord, Lord Ponsonby, for his helpful introduction and explanation of it. He acknowledged, indeed asserted, that the background to the measure is the capacity crisis of which we have spoken over a number of years under the previous Government. This order is, in essence, the amendment of an emergency measure taken in the face of extreme pressure on the Government as the space in prisons simply ran out.

We recognise the need to extend the time, in the face of the continuing crisis, that may be spent on home detention curfew or HDC. It is significant that the reoffending rates among HDC prisoners are lower than those among the prison population at large on release. We also recognise that, for the technical reasons that the noble Lord has outlined, there need to be changes to the range of offences where eligibility for release under SDS40 is established.

As prisoner numbers have risen, with longer sentences resulting from sentence inflation, from legislation introducing longer sentences and legislation imposing longer periods which have to be served in custody as a proportion of the whole sentence, we have to look at how we deal with this crisis in the future.

While we support the principle of this order and the orders that have preceded it, I will ask the Minister for assurances in two specific areas before making a number of general points. First, it is an essential part of the early release scheme that offenders be tagged and that, when tagged, they are properly monitored within the community. Many were alarmed by the number of reports at the beginning of this scheme of offenders being released without tags. The noble Lord, Lord Timpson, described that as “completely unacceptable”, and we agree. It would be helpful to hear from the Minister details of steps the Government have taken to ensure that nothing like that can happen again. It would also be helpful to hear further details of how well the steps taken to monitor prisoners who are tagged on release are working in practice.

16:45

The second specific concern is about the information given to victims of released prisoners about their release under the early release schemes. They have a right to know details of the release of the perpetrator of crimes against them. I recognise that victims of domestic violence, sexual offences and stalking have a particular concern about this; they are not affected by this order in particular. I should say that we welcome the establishment of a pilot scheme in London for tagging released stalkers. In relation to a wider group of offenders, how far will lessons learned from the pilot be applicable to offenders released early more generally? Might it be sensible for tags to be retained in suitable cases, where victims are under possible threat, beyond the earliest release date of the offenders?

My main point concerns the prison population overall. The noble Baroness, Lady Newlove, looked at similar figures to those I will now cite. The most recent government projections are alarming. They specifically take into account that the early release scheme will continue under the present arrangements for the duration of the projected period, which runs until 2029. Current usable operational capacity—to use the government phrase—is 86,382. That is the capacity of the prison estate. Yet the current figure for prisoner population already exceeds that at 87,000. By March 2029, on the lowest level of prediction—of course, a range is posited—the figure will be 95,700. On the highest projection, the figure will be 105,200, with a central figure of 100,800. We have to get that figure down.

As a first step, we have to get the figures down to a level within the capacity of the prison estate. As at the noble Baroness, Lady Newlove, pointed out, that cannot be achieved by building alone—not least because the prison building programme is delayed by intractable planning delays, inevitably, and the lengthy time needed for prison construction. If you work out the figures, it is even then quite clear that the most optimistic proposals for prison building cannot meet the projected rise in prison demand.

It is often truly stated that we imprison more offenders than almost any other European country and we imprison them for longer, and it is well known that there is very little evidence that longer sentences do anything to assist in the reform or rehabilitation of offenders. So may we have—not today, but in the very near future—an overarching statement of how the Government propose to reduce the prison population in the medium to long term?

The task is not only to get the population down within the capacity of the prison estate. We need to build in spare capacity. I will make a number of points on why that is so important. I will make them briefly because I have made them many times before. First, we must address overcrowding. Cells made for one are packed with more than one prisoner each. That is inhumane and it also increases the risk of violence within prisons—prisoner on prisoner, and prisoner on staff—because of boredom, frustration and discomfort. We must maintain the conditions of our prisons and we must do better because they are squalid; we must improve the conditions. That means that the current position, where cells scheduled for maintenance are being kept in service, with maintenance programmes deferred, is simply not good enough. We have an excessive use of temporary cells, which lack the ancillary features required for prison life to be remotely civilised.

Then we must address the current need to shuffle prisoners around the prison estate in a chase to find spare beds somewhere in the system without regard to prisoners’ needs in terms of geography and continuity. That shuffling is damaging for rehabilitation. It breaks ties with families and communities, which is particularly important in the period leading up to release. That shuffling prevents continuity of prisoners’ contact with staff in prisons, particularly, again, when prisoners are being prepared for release and need that staff contact. Constantly moving prisoners around the prison estate prevents continuity of educational courses and vocational training courses—where, indeed, such courses are available, which is far from universal. Alongside these necessary improvements, we must relieve the pressures caused by present understaffing and the low morale within the prison service that goes with it.

We should be working towards achieving a civilised and civilising prison estate. We are a long way short of that now. On these Benches, we fully recognise that the Government are on the back foot and we know that Ministers are doing their best to relieve a very difficult situation. We will support them in their efforts to change that, but there is much work to be done.

[Lord Murray of Blidworth (Con)]

My Lords, we too welcome this order. I understand the reasons set out by the Minister. Under the previous policy, the automatic release point for the sentences for offences being added to the order was 40%. Under this order, in some circumstances, this will change back to 50%. Furthermore, the maximum length of a home detention curfew period will be extended from 180 days to 365 days.

While we welcome this order, I have a question to ask the Minister, further to the points made by my noble friend Lady Newlove. While the order would allow the Government to keep prisoners under home detention or in custody for longer, can the Minister outline the estimated impact on prisoner capacity in the near future of this decision, and how it is proposed to utilise this new power? Is it the intention in the medium term to return the home detention curfew power to 180 days? I also look forward to hearing responses to the cogent questions posed by the noble Lord, Lord Marks of Henley-on-Thames.

[Lord Garnier (Con)]

My Lords, I briefly intervene, if I may. In doing so, declare my interest: until about 1 pm this afternoon, I was a trustee of the Prison Reform Trust. I largely agree with my noble friend on the Front Bench and the noble Lord, Lord Marks. I agree with them because I have made that very same speech probably about 20 times in the last 10 years—nobody listens, it does not matter. The short point I want to make is this: who monitors the monitors? One of the problems that we have noticed over the last several years, when looking at the use of tags, is that far too often the monitoring organisation falls down. One expects ingenious people on tags to try to get out of the restrictions imposed by them, but one does not expect the monitor to fall down in its duties. Can the Minister please assure us that rigid steps are being taken to make sure that the monitors are monitored, and that if they fail, there is some form of contractual sanction?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank all noble Lords who contributed to this short debate. I agreed with all the points of the noble Baroness, Lady Newlove, on the importance of victims, but one point that is worth emphasising is that it is a discretionary matter for the governor as to whether a home detention curfew is granted. My understanding is that 40% of applicants for home detention curfews fail that application. That is distinct from SDS40, where there is a mandatory reduction from 50% to 40%; whether a home detention curfew is granted is a discretionary matter. The noble Baroness was broadly supportive of the measures in this SI, and I thank her for that.

The noble Lord, Lord Marks, raised a number of interesting points. The one I found most interesting was about extending tagging on perpetrators beyond the HDC period and maybe beyond the licence period— I do not know exactly what he is suggesting. As he will know, a sentencing review is under way, and it may be that there is an increased use of technology. I will make sure that the noble Lord’s point is fed back to the Ministers who are enabling David Gauke and his team to do that review.

A couple of days ago, I met the Estonian Justice Minister, and a couple of weeks ago, I was in Poland. It was interesting to talk to the Justice Ministers in both those countries about how they are extending their use of technology in a number of ways—there are a lot of possibilities there. I would not be at all surprised if this is looked at further as part of the sentencing review.

The noble Lord, Lord Marks, went on to talk about the capacity of the prison estate and the need to have spare capacity so that the system can essentially be managed properly for the benefit of the prisoners. This means that they can complete their courses and be relatively near to home, so that family ties are not broken. All the noble Lord’s points on that are absolutely right. What he said is very ambitious, but I hope the Government are matching his ambition in the sequencing of the steps we are taking to try to have a prison system that reduces reoffending—that should be, and is, the primary objective of any prison system.

The noble Lord, Lord Marks, raised a point that the noble and learned Lord, Lord Garnier, raised, on who monitors the monitors. My noble friend Lord Timpson is monitoring the monitors, and he is having absolutely regular meetings with Serco to reassure himself that the technology is working properly and that the further technology that we will need will be available. This is a real issue, and the noble Lord is right to raise it. It is very much alive in my noble friend’s head, if I can put it like that.

The noble Lord, Lord Murray, asked whether we would return to the old regime in due course. The answer to that is that we will keep the current proposed changes under review. One difficulty that we have had is that the situation is changing so quickly that it has proven difficult to do a proper review in a stable regime. The previous Government did not do a review of the previous regime when it went from four and a half to six months, and the current changes from six to 12 months need a suitable amount of time to bed in, to make sure that a proper assessment is done so that the Government can take a view about future steps. I hope that that puts the noble Lord’s mind at rest—the Government will constantly keep these matters under review.

Motion agreed.