Criminal Justice Act 2003 (Requisite and Minimum Custodial Periods) Order 2024

Earl Attlee Excerpts

Monday 29th July 2024 Lords Chamber

The prison population remains within a few hundred places of criminal justice collapse. I learned recently just how challenging the situation is when we had to temporarily close HMP Dartmoor last week, taking around 200 places out of the prison estate. Although we are able to withstand that loss of capacity, any further challenges, be that a further loss of supply or an unexpected increase in demand, could tip us into crisis. Until this measure takes effect, we will continue to monitor the prison population closely and be ready to introduce further emergency measures if required. We are not out of the woods yet, but I am proud to be part of a Government who will take the necessary action and brave decisions necessary to protect the public. The change that we are debating today is the only safe way forward in the time we have available to act. I beg to move.

[Earl Attlee (Con)]

My Lords, I welcome the Minister to his position; this is the first time I have been able to debate with him. I hope he has plenty of time to sort out the mess of the prison system. I support the order; there is obviously no alternative to passing it.

The Minister touched on the reasons why that has occurred. My understanding is that the offender management unit in the Ministry of Justice calculates what the demand will be for prison places, taking into consideration all the changes in legislation. Anything that we do in legislation makes it change its calculation, and I am pretty confident that the unit told Ministers a long time ago that we had problems. One reason why I got involved in looking at the penal system was a debate initiated by Lord Brown of Eaton-under-Heywood in 2017 on overcrowding in the prison system. We just let it go on and on until eventually we had to do something, which is exactly what the Minister is doing.

My only question is: is there any scope to do something about unnecessary recalls? Released prisoners can be recalled for fairly trifling bureaucratic reasons, which causes a lot of disruption and an increase in the prison population. Also, is there any scope to reduce the remand population, which the Minister mentioned? I look forward to supporting the Minister in his work.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, it was a pleasure to hear the categories that will not be up for release, because nobody wants sexual predators and misogynists out on the streets—so I am delighted to hear that. But when the issue of prisons comes up, we always have to ask ourselves: what are they for? They ought to be for keeping dangerous people off the streets, but that is not what we do at the moment; we throw into prison an awful lot of people who should not be there. Through the Minister, this Government could think about changing who we put in prison because, quite honestly, the number of people going to prison is ludicrous when you think about some of the crimes they have committed.

Drug law reform is an obvious area. It seems absolutely ridiculous to put people in prison because of drugs offences when they have access to even more drugs there than they do out on the streets. Prisons are failing in that way, and I would be interested to hear what the Minister had to say about drug use in prison. Unfortunately, our new Prime Minister has indicated that he wants to continue the ideological war on drugs. Can the Minister at least review the evidence from the Advisory Council on the Misuse of Drugs and publish its advice? The Conservative Government kept it secret because it called for the decriminalisation of personal possession of drugs.

It is good to hear about restorative justice, which is something further that that this Government could talk about. It is a voluntary process whereby people who have been harmed can work with the people who have caused the harm and perhaps identify how both parties can resolve or move on from it. We had amendments on this to the Victims and Prisoners Bill, so it would be good to hear the Government’s thoughts on this area.

Of course, if we are going to let people out of prison, we have to remember the scandal of the IPP prisoners. I was sad that the Minister did not mention them today because that category has clearly suffered the most incredible injustice. The legislation was designed to keep serious offenders in prison, but instead we ended up with nearly 3,000 people, most of them non-violent, trapped in prison. IPP prisoners turn to suicide and hunger strike. This is a legacy of the last Labour Government that the new Labour Government need to fix, as I pointed out.

One report says that someone got, in effect, 16 years in prison for stealing a flowerpot at 17. A prison sentence of 18 months should not turn into 18 years, which has also happened. It is no wonder that our prisons are overcrowded if we keep throwing people in there to rot for minor crimes. So do the new Government have a plan to work at pace to safely release IPP prisoners where possible? Is there a proposal for new legislation on this? We need the new Minister to sort out a plan on this. We need a resentencing programme to get the majority of IPP prisoners out of prison. Apart from that, I can say only, “Good luck”.

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[Lord Timpson (Lab)]

My Lords, I thank all noble Lords for their valuable contributions to this important debate, and I look forward to answering as many questions as I can. I will of course go back and look at Hansard, and if there is anything I have not answered, I will endeavour to write. As noble Lords have already pointed out, I have had quite a busy few days and I am learning fast, so I ask your Lordships to please bear with me if I am not quite as smooth as other noble Lords have been today.

I will start with the noble Earl, Lord Attlee, on recall. Recall is used only when necessary to protect the public. I see no reason to believe that it is being used inappropriately. This week, I went to two prisons to meet the offender management units to see how they were getting on with the important work they are doing. While they were very busy, I got the distinct feeling that they were on top of things and very much prepared for the hard work.

The noble Lord, Lord Beith, mentioned remand. We are very aware that the remand population has seen significant growth, and it is a significant issue. It has grown from about 9,000 to 16,000 prisoners. However, making changes to the remand cohort in a way that respects the individual decision by the judiciary will take time to implement. Unfortunately, we do not have much time.

A number of noble Lords, including the noble Baroness, Lady Jones of Moulsecoomb, the noble Lords, Lord Deben, Lord Beith and Lord Brooke of Alverthorpe, and the noble and learned Lord, Lord Hope of Craighead, talked about who goes to prison. I thought I would mention the sentencing review that we are planning. That will take place as soon as possible. That will, I hope, be an opportunity for noble Lords to discuss and debate where we are going on sentencing.

One point raised by a number of noble Lords was around IPP prisoners. That is not something that is covered by this instrument. If it is satisfactory, I will write to the noble Lord, Lord Moylan, with the exact detail, because this is so new to me and I do not want to get anything wrong at this early stage of my career in this House. IPP prisoners is an area that troubles me deeply. I have been going to prisons for over 20 years, and every time I go into an establishment, I always try to sit in a cell and talk to a man or a woman who is an IPP prisoner. In fact, I sat next to an IPP prisoner on Thursday. They all have a different story. Most of them suffer from multiple challenges; most of them feel lost; many of them are institutionalised. We have a duty to help them live a law-abiding life outside, but it is challenging. We are making progress, and this is one of the areas I want to make further progress on quickly. I assure noble Lords that it is at the top of my in-tray every day.

On the subject of prison building, which the noble Lord, Lord Beith, talked about, it is important, and we are committed to building new modern and safe prisons. For me, one of the advantages of new prisons is that they have the facilities required to help people gain skills and education, so that when they are released they have the skills and confidence that make them more attractive to an employer.

The noble and learned Lord, Lord Hope of Craighead, asked what I meant by “stabilised”. Even though I have been going round prisons for many years, I have been trying to remember when I last felt that a prison was stable. It was probably the category D prisons, up until the last year, where they often had spare capacity and you felt that they were very much on the right side of panic. However, where a prison is 99% full, it is very difficult for the prison staff and probation staff to adequately educate and train, and to have time for those quiet conversations on the wings between prison officers and prisoners, which are sometimes very important turning points in someone’s life. I have worked alongside many colleagues who have left prison, and very often the story they tell me is that their lives were not turned around by family or friends but by a kind prison officer who gave them their time.

The noble Lord, Lord Brooke of Alverthorpe, spoke about mental health. We have a broad failure across many of our public services, including the health service. One of the things that is very important to me as I progress in this role is to support our health professionals to work with our offenders, inside and outside prison. These people have failed society but often society has failed them too, and they often need support to overcome their health problems, especially around addiction.

The noble Earl, Lord Courtown, talked about the impact on communities when people leave prison and how society will cope with that. We are recruiting 1,000 extra probation officers; although they will not be in place completely until March next year, it is an important step. What we want to achieve is a reduction in reoffending. To me, what is important from this job is to help people not to reoffend, because that reduces crime, we have fewer victims, it costs less money and it means fewer wasted lives. The plan at the moment is for the release point to go to 40%, and when we are satisfied that the capacity problem is resolved, it will go back to 50%, We will publish every quarter an update on how this scheme is running. Not all prisoners leaving prison will go on tag; it will depend on whether the professionals deem it to be appropriate. As I said on Wednesday, I will test one of the tags myself to see what it is like, and will report back to noble Lords.

[Earl Attlee (Con)]

My Lords, the Minister should make sure that it is not a sobriety tag.

Prison Officer Pension Age

Earl Attlee Excerpts

Monday 18th March 2024 Lords Chamber

Asked by

[Earl Attlee]

To ask His Majesty’s Government what estimate they have made of the cost to public funds of bringing prison officer pension age into line with that of firefighters, the police and armed services.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bellamy) (Con)]

My Lords, the Government currently have no plans to change the pensionable age of prison officers, which is set under the Civil Service-wide pension scheme. Any estimate of the cost of doing so would require complex actuarial calculations to determine the higher contributions that would need to be met by the employer and by current and future members.

[Earl Attlee (Con)]

My Lords, I thank my noble and learned friend the Minister for that reply. Is it correct that Treasury Ministers are responsible for setting the pension age and not MoJ Ministers? Is it also correct that for a newly recruited prison officer, the pension age is 68 years old? Is this policy not really one of “lock until you drop”?

[Lord Bellamy (Con)]

My Lords, on the first question, the Treasury has overall responsibility for setting pension arrangements for the Civil Service; that is not an MoJ responsibility, and my noble friend correctly makes that point. As for “lock until you drop”, can we please distinguish between the age at which you get a full pension and the age at which you can retire, which is something quite different? A prison officer does not have to work to the age of 68 to qualify for any pension; he can retire earlier on a smaller pension and then, unlike most situations in the armed services, he can return to work—in a less front-line role, typically. He will continue to work and earn a pension, as well as the other pension he has already accrued. It is not at all clear that prison officers under the present scheme are worse off than they would be if they were in the armed services, especially given the higher contributions the latter have to make.

Victims and Prisoners Bill

Earl Attlee Excerpts

Tuesday 12th March 2024 Lords Chamber

Moved by

[Earl Attlee]

167A: In subsection (1), at end insert “subject to subsections (9) to (12)”.
Member’s explanatory statement
This amendment, along with others in the name of Earl Attlee to this amendment, would delay the resentencing exercise until the Secretary of State, in consultation with the Chief Inspector of Probation, is satisfied that probation services have the capacity and resources to manage additional supervision as a result of resentencing.

[Earl Attlee (Con)]

My Lords, I rise to move my Amendment 167A and speak to my Amendments 167B and 167C, all amendments to Amendment 167, which was so ably moved by the noble Baroness, Lady Fox. On a procedural point, technically we are debating my amendment, but of course all noble Lords can speak to all amendments within the group.

I agree with nearly everything the noble Baroness said about the desirability of her amendment, which I strongly support. She mentioned that this approach was the one taken by the cross-party Justice Committee in another place. I am bound to say that this is quite a good pedigree. The noble Baroness has dealt with all the most obvious points. However, there is a real concern that some agencies might not be able to cope with a large and sudden increase in demand arising from numerous IPP releases from custody—although the noble Baroness did talk about a phased process so that you would not get a huge number of resentencings at the same time. Nevertheless, we must make sure that we do not overrun the Probation Service, because that is the most obvious example.

My amendments seek to improve the original amendment by ensuring that the requisite Probation Service capacity is available before any resentencing exercise starts. It may be that, when he comes to respond to this amendment, my noble and learned friend the Minister will identify other areas where there is a similar capacity shortfall. If that is the case, a similar approach can be taken.

My Amendment 167C is a substantive one, and proposed new subsection (9) prevents the new section coming into force unless the Secretary of State is satisfied

“that the Probation Service has the capacity and resources”

to meet any additional demand resulting from the resentencing exercise. Proposed new subsection (10) requires the Secretary of State to

“commission a thematic review by the Chief Inspector of Probation that considers”

the capacity and resources of the Probation Service in order to make an informed decision. Finally, proposed new subsection (12) requires the Secretary of State to annually review his decision if he is not satisfied that the capacity is in place. I beg to move.

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[Lord Bellamy (Con)]

My Lords, from the point of view of the Government, I am not in a position to accept the premise advanced by the noble and learned Lord. I hear what he says. I do not accept, as I think the noble Baroness, Lady Fox, implied at one stage, that there is anything wrong with the Parole Board processes. I think I heard the word “dodgy” at one point, but I may have misheard. The Parole Board is a body that the Government have complete confidence in in this respect. This exercise should remain with the Parole Board.

I will say again: can we please distinguish between the problem of the released cohort and the problem of the never released cohort? We seem to drift from one to the other a lot of the time. Cases such as those of Matthew Price and, I think, the case of David Parker, which was mentioned by the noble Baroness, Lady Fox, are cases where people have been recalled after having been in the community for many years. That will no longer happen. The question of the recall is very largely dealt with, or very substantially improved, by the Government’s amendments in this Bill. What we are dealing with primarily is the never—not yet—released cohort.

I say again, in the light of my noble friend Lord Moylan’s remarks about the expected possible reaction of those who are still in prison and how to be particularly vigilant in supporting IPP prisoners in the light of these debates and related points, that the action plan is intended to give people hope. It is focused on their future to prepare them progressively with a sentence plan, the psychology services support, and a multidisciplinary progression panel towards eventual release. I think he would accept, even now, that the action plan has made a difference already; I see him nodding. We will take that forward and, as I say, it may well be the case the Government will be in a position to propose to your Lordships that the idea of an action plan should have a statutory basis, that the broad terms of its content should be set out and that the Secretary of State should report to Parliament so that—whatever Government comes into power—we can continue on the process that we have already started. The resentencing exercise is not, in the Government’s view, the way to go.

On that basis, the amendments proposed by my noble friend Lord Attlee would not arise because we are not going down that road. I do not think I need to say anything further about them, save to remark that what is being proposed would impose a very significant burden on our existing probation services. For that reason as well, one would have to reflect very seriously before going down that route. I invite the noble Baroness to withdraw her amendment on this point.

[Earl Attlee (Con)]

My Lords, my amendment was a very fine amendment, but my noble and learned friend the Minister has addressed it. I beg leave to withdraw my amendment, and we will hear what the noble Baroness has to say.

Amendment 167A withdrawn.

Victims and Prisoners Bill

Earl Attlee Excerpts

Committee stage
Tuesday 12th March 2024 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I rise possibly as an elder, owing to my advanced age; but perhaps not. I would like to support the noble and learned Lord, Lord Thomas of Cwmgiedd. As he said, there is almost nothing left to say about these prisoners. It is an injustice. I hope that the Government are considering accepting some of these amendments. We cannot say that we have a justice system if we have an innate injustice like this.

I support the tributes to the noble Lord, Lord Blunkett, but also to the noble Lord, Lord Moylan, with whom I have almost nothing in common; we have a very tetchy relationship but, on this, I think he is being superlative in working for the rights of IPP prisoners.

As Greens, we believe that prison is overused as a tool of justice. Far too many people are imprisoned when there are much more effective ways of rehabilitation or stopping reoffending. I can understand the anger of people who say that we should lock up serial rapists and murderers and throw away the key. I do understand that anger; but, in this instance, we have, for example, a 17 year-old who steals a bike, or people who grab other people’s mobile phones. This is clearly an injustice; I find it difficult to believe that anybody listening to this would not agree.

The lawyer and campaigner Peter Stefanovic put out an online video about this. It has had 14 million views. A petition to force the Government to debate this again got easily 10,000 signatures. There is massive public support for sorting out this issue. I know that the Government care very much about the will of the British public. The word that came through for me in some of the responses to the video was “cruel”. The sentencing and continued imprisonment of IPP prisoners has just been cruel. Please, let us see some progress on this Bill, then we can all take the Ministers out for a cup of tea.

[Earl Attlee (Con)]

My Lords, I am grateful to the noble and learned Lord, Lord Thomas, for moving his amendment. I have tabled Amendment 156; it may be convenient to speak to it now. Before doing so, I have some general points to make about the whole issue of IPP, which I will not repeat in detail later.

I am grateful for all the work that my noble friend Lord Moylan has done along with the Prison Reform Trust and UNGRIPP. In 2017, as a result of a debate initiated by the late noble and learned Lord, Lord Simon Brown of Eaton-under-Heywood—I am grateful for the comments of the noble Baroness, Lady Chakrabarti —I decided to take a very close look at our penal system. I soon found that I needed to widen my interest to the whole of the criminal justice system because there is so much is wrong with it. One obvious example is joint enterprise murder, but that is for another day.

Let no one think that I am some sort of soft, bleeding heart, out-of-touch do-gooder. I am not. I believe in firm discipline, with all that that implies. But—I repeat, but—no more disciplinary sanctions should be applied, including incarceration, than are needed to have the desired, legitimate effects of protecting the public by incapacitation, and providing retribution, deterrence and rehabilitation. The current IPP regime clearly fails this test on all counts. I will not rehearse the heart-rending histories that we have all heard about. They are not in dispute.

I also accept that some prisoners on an IPP sentence may not be releasable any time soon even under a resentencing scheme. However, keeping prisoners incarcerated unnecessarily costs £44,000 per annum per prisoner and wastes resources. We know we have a terrible prison system because the Chief Inspector of Prisons tell us that is so. In his 2023 report, he said that inspectors have run out of superlatives to describe how poor the purposeful activity component of prison life is, or words to that effect. No wonder IPP prisoners find it so hard to demonstrate any progress with rehabilitation.

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I hope that I have covered the various points. I have not addressed the wider points about the prison system in general; that is for another day and I look forward to a further debate, but I hope that I have replied sufficiently for the moment.

[Earl Attlee (Con)]

My Lords, is my noble friend the Minister telling us that it is inconceivable that the Government would want to increase the licence period?

[Lord Bellamy (Con)]

I do not know that one would use the word “inconceivable”. The Government do not see any prospect of that happening at the moment.

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[Lord Berkeley of Knighton (CB)]

My Lords, I am not a lawyer but I do have some experience of visiting prisons, thanks to the Koestler Trust, which takes art into prisons. I was quite a close friend of the late, much- lamented and learned Lord Brown, so I feel quite strongly about what I have heard. I have been very moved by this discussion and the toing and froing between quite considerable legal minds.

What I took from my time visiting prisons was that essential ingredient of hope. The arts sometimes gave hope but, of course, there were instances, which we have been hearing about with IPP, where hope had been vanquished. I want to make only one simple point. No greater tribute could be paid to the late Lord Brown than that the Government acknowledge the point he made, and that other noble Lords are making, and come to some arrangement to bring to a close this system, which is not only iniquitous but almost cruel. People need to know at the end of the day that there is some chance of once again leading a normal life.

[Earl Attlee (Con)]

My Lords, on the first group of amendments my noble and learned friend the Minister said that there was a cohort of IPP prisoners who had never been released and he suggested that it was because they did not meet the tests of the Parole Board. My concern is that the prison system has not been able to offer the rehabilitation necessary for these prisoners to demonstrate that they could safely be released. That is why I strongly support the amendment tabled by my noble friend Lord Moylan.

I also have strong support for the amendment tabled by the noble Lord, Lord Carter, particularly because it refers to prisoners whom the Secretary of State would release if he was able to but cannot. There must be a great cost to keeping those prisoners in prison who are there because the Secretary of State does not have the power to release them.

Prison Officers: Retirement

Earl Attlee Excerpts

Thursday 30th March 2023 Grand Committee

Asked by

[Earl Attlee]

To ask His Majesty’s Government what are their reasons for setting a retirement age of 68 for newly recruited prison officers; and what assessment they have made of whether that retirement age is appropriate and in the public interest.

[Earl Attlee (Con)]

My Lords, after a debate about prison overcrowding initiated by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, in September 2017, I decided to take a very close interest in the UK’s prison system, because it is quite clear that there is a lot of room for improvement. One of my first actions was to read the 1991 report of the noble and learned Lord, Lord Woolf, about the riots at Strangeways prison and elsewhere. No one who has read that report could fail to be struck by the risks that prison officers manage on a day-to-day basis and the extraordinary physical and moral courage exhibited by prison officers during those riots. It is clear to me that a 68 year-old prison officer is far too old to deal with physical challenges of this nature, no matter how good their jailcraft is.

In February 2020, I produced a paper that proposed drastic reform in respect of prolific minor offenders. I ran it as an amendment in your Lordships’ House, and it was well received. However, during my researches, as your Lordships would expect, I detected a number of other problems, such as the “potting” of prison officers by prisoners, which is just one example of why prison officers are special and need to be treated differently. Another problem that came up was Friday release, which is where large numbers of prisoners tend to be released on a Friday, when other agencies are not in a good position to help a newly released prisoner, and when those prisoners are at their most vulnerable. Along with my noble friend Lord Hodgson of Astley Abbotts, I ran suitable amendments, and I am pleased to say that the Government are supporting a Private Member’s Bill that will address this problem. So we do have good news from time to time, and I am grateful to Ministers.

During my researches into our prison system, my admiration and respect for prison officers went only one way: upwards. We charge them with looking after often the most objectionable members of society that we can possibly find. The source of the current problem—although not the cause—is that, in his 2011 review of public sector pensions, the noble Lord, Lord Hutton of Furness, left prison officers off a list of “uniformed services” that he proposed to protect from the state pension age rise to 68, insisting that, for the Armed Forces, police and firefighters,

“where pension age has historically been lower to reflect the unique nature of their work a pension age of 60 is appropriate”.

I understand that a retirement age of 65 has already been conceded in negotiations, although I think that is already too old for practical reasons. I do not believe that a retirement age of 68 for a prison officer is appropriate or in the public interest. I am honoured to debate this Question with my noble and learned friend Lord Bellamy, and I look forward to his answers and having many more debates with him about the prison system.

In my time, I have served for over 40 years in the reserves, I have undertaken international aid operations in the Balkans and Rwanda, and I have undertaken military operations in the Balkans and the Middle East. But I am now 66 and, although my brain seems to work reasonably well, my body cannot do what it used to be able to, even five years ago. It would be absolutely out of the question for me to perform the duties of a prison officer. Can any noble Lord honestly picture me attempting to exercise control and restraint of an 18 year-old prisoner? If I cannot do it, even with my background, why should I expect prison officers to do it when they are even older than I am? That is why it is morally wrong to have a retirement age of 68 for our prison officers.

When the noble and learned Lord, Lord Stewart of Dirleton, answered my Oral Question on this matter last June, he claimed that prison officers worked in a controlled environment compared with firefighters and police officers. Anyone who thinks that prisons are a controlled environment should go away and read the Woolf report. During my investigations in the Prison Service, I quickly lost count of how often the alarms went off and all available prison officers had to pitch in to control an incident. Most prisons and custodial institutions are inherently violent places, but the skill, courage and fortitude of the prison officers are what limit the frequency and severity of incidents.

The other argument that I expect my noble and learned friend the Minister will advance is that prison officers do not make anything like the pension contributions that police officers and firefighters do. That is true, of course, but the reason is that the low pay of a prison officer makes such contributions unaffordable. I understand that the POA would be quite happy to make greater contributions, but only if the pay was increased. Prison officers are prohibited from taking any form of industrial action. That being the case, Ministers need to be very careful to ensure that they are not abusing this restriction and underpaying and underrewarding prison officers—and I think that they are underpaid. There is very good evidence: the retention rate of newly recruited prison officers. Unfortunately, the retention statistics are terrible. There will be a variety of reasons for this, but mostly it will be the terms and conditions of service.

The pension age of 68 sends a signal that the Government, Ministers and, indeed, the public simply do not care about prison officers. If that is the message we are sending, why are we surprised that junior prison officers walk away and take a much easier job—say, in a warehouse? The Prison Service desperately needs experienced prison officers, but Ministers are failing to retain them. Rather, resources are being wasted on training newly recruited prison officers, who quickly leave, while the Treasury quietly calculates the notional savings from full pensions not being paid out—but those savings will of course not arise for decades.

There is another fatal flaw in treating prison officers as mainstream civil servants. Understandably, prison officers have to undergo regular fitness tests. There are two issues with this. The first is that the process results in early retirement for some very experienced prison officers whose jailcraft is so refined that they hardly ever need to resort to control and restraint—an own goal if ever there was one. The second is that it makes it very hard to stay working as a prison officer until 68. In fact, it is almost unachievable. For instance, last year I was very ill and, if I was a prison officer, I would have had to retire. In any case, I would almost certainly fail any reasonable agility test because my joints are giving up due to a misspent youth. However, if I was an ordinary civil servant, and with the nature of my illness, I could have continued working to 68 with only a few minor adjustments. It is much easier for a mainstream civil servant than a prison officer to achieve the retirement age of 68, and that cannot be right. I have heard that Ministers are, in correspondence, comparing prison officers with ratings on Royal Fleet Auxiliaries. I will have to follow that up with my Defence hat on, because 68 is far too old for that role as well.

I have realistic expectations about what the response from my noble and learned friend the Minister will be this afternoon. It would be good if Ministers could go away and privately have a hard think about whether the current policy makes sense. I do not believe that it is morally right, and nor do I think it is correct in practical terms.

Police, Crime, Sentencing and Courts Bill

Earl Attlee Excerpts

Report stage
Wednesday 12th January 2022 Lords Chamber

[Baroness Chapman of Darlington (Lab)]

My Lords, I rise to move the amendment tabled by my noble friend Lord Ponsonby on life-saving equipment. It deals with a specific issue in relation to criminal damage: the effect of vandalism on safety equipment.

Noble Lords who were present in Committee will have heard my noble and learned friend Lord Falconer of Thoroton speak about the death a young man from Rotherham, Sam Haycock. His parents, Simon and Gaynor Haycock, went to see their MP, Sarah Champion, who moved an amendment in the other place. Sam went swimming in Ulley reservoir in Rotherham in May 2021. He was leaving school that day and was just 16 years old. He was helping a friend who was in trouble in the water. At this reservoir in Rotherham—I believe that this is not unique to it—there was a throw line with a lifebelt attached to it that you can throw into the water to help someone in trouble. The problem was that it was kept in a locked cupboard and, to access it, you need to phone 999 and get a PIN from the police. Obviously, this takes time, and when someone is in distress in the water, you do not have time. The delay in getting the throw line might well, and in this case did, have tragic consequences. It is behind a locked door with a PIN to prevent vandalism of the safety equipment.

In regional media, I have found several similar instances where life-saving equipment has been vandalised. One was at Salford Quays. Manchester Council felt it lacked the ability to prevent and deal with this, so it has taken to using public space protection orders to try to deal with the issue. There was also a case in Uckfield in Sussex where a defibrillator was rendered unusable by vandals. These acts clearly cause costly damage but, most importantly, they also pose a very clear risk to life and can be shown to have cost lives in some instances.

The amendment is very straightforward: it proposes that it is made a specific offence to intend

“to destroy or damage any property which is considered life-saving equipment, including life-belts, life jackets and defibrillators.”

In terms of criminal damage, the value of what is damaged may be relatively minimal in the case of a lifebelt and a throw line, compared to other criminal damage offences. As my noble and learned friend Lord Falconer said in Committee, it would already be an offence to vandalise such equipment, but it matters a great deal that the law should indicate that this is something regarded with particular hostility because of the cost to life, including that of Simon and Gaynor’s precious son, Sam.

[Earl Attlee (Con)]

My Lords, I rise briefly to support the noble Baroness in moving her amendment. This might not be something that we want to send back to the Commons today, but I hope that my noble friend the Minister will tell us what he will do about this problem, because of the effects so ably described by the noble Baroness.

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[Lord Ponsonby of Shulbrede (Lab)]

My Lords, this group of amendments seeks to introduce new offences to make it illegal to have sex-for-rental accommodation. Currently, sex for rent was affirmed as a sexual offence in 2017 by the Ministry of Justice. Under the current legislation, an individual can be prosecuted for such a crime only under Section 52 of the Sexual Offences Act 2003—causing or inciting prostitution for gain. Only one person has been charged in a sex-for-rent case, and only as recently as a year ago.

The law itself has made it extremely difficult for sex-for-rent victims to seek justice. According to the law, victims must be legally defined as prostitutes, which is a huge deterrent in their access to justice. Another reason why this scandal continues virtually unchecked is that landlords are able to advertise sex for rent in their properties very easily. Landlords still post on sites such as Craigslist, where they talk about free house shares, room shares or even bed shares, and even some of the postings are extremely explicit about the requirement of sex for rent.

Amendment 104E would create a new offence of requiring or accepting sexual relations as a condition of rental accommodation, with a maximum sentence if convicted of seven years. Amendment 104F would create a new offence of arranging or facilitating the requirement or acceptance of sexual relations as a condition of rental accommodation, with a maximum fine of £50,000. That would of course be for those who allow the advertisements on their websites or allow any other form of this type of advertising.

Amendment 114A would put a requirement on the Secretary of State to establish a review into the prevalence of, and the response of the criminal justice system to, the offence of administering a substance with intent under Section 61 of the Sexual Offences Act 2003. This is a separate point, and it is something that has had a lot of publicity recently. What is not known is how much of that has been drummed up by the press, if I can put it like that, and how much is real. Nevertheless, the concern that has been raised is certainly real, and this amendment would put an obligation on the Government to get to the bottom of the matter and see whether it is a real problem that nightclubs and other people need to take action to stamp out.

Amendment 114B would put a requirement on the Secretary of State to establish a review of the offence of exposure under Section 66 of the Sexual Offences Act. Again, this is a separate and wider issue, which has ramifications regarding violence against women and girls and the question of whether it is a step along that road. It is right that it should be viewed in its wider context. As a sitting magistrate I see these cases fairly often; they are highly variable and the perpetrators range completely across the social spectrum. Nevertheless, the impact on the women and girls who are subject to these exposures is real, and I am sure there is sufficient data to see whether people who expose themselves progress to much more serious offences.

However, it is fair to say that the main purpose of this group of amendments is to put in new offences of illegalising sex for rent. I beg to move.

[Earl Attlee (Con)]

My Lords, I am grateful to the noble Lord, Lord Ponsonby of Shulbrede, for tabling Amendments 104E and 104F, because this gives me an opportunity to speak to them as I was not available at an earlier stage.

My first point is that sex for rent is invariably immoral and abhorrent and frequently evil, so I agree with the sentiments expressed by the noble Lord today and by noble Lords the last time we debated it. Unfortunately, I share the concerns expressed by the noble Lord, Lord Marks, in Committee on 22 November last year. Like the noble Lord, I am worried about the unintended consequences. He asked:

“What about the landlady of the bed and breakfast who seduces the potential paying guest and offers him or her a free room in return?”—[Official Report, 22/11/21; col. 684.]


The problem is not so much in the drafting but in the way that the amendment works. For instance, I worry about the use of the word “provider”. Does the proposed offence catch a young, affluent male student who has a spare bed or room to offer a female student, partially or wholly in exchange for sex or an intimate relationship?

--- Later in debate ---

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank all noble Lords who have taken part in this debate. It has been quite quick but focused on the issues raised in this group of amendments.

The noble Earl, Lord Attlee, raised some reservations and talked about the nature of the victims. I advise the noble Earl to read very carefully what my noble friend Lady Kennedy said when she itemised the victims of this offence. It is overwhelmingly women who are victims of this offence. The numbers are very large and it has been going on for years. My noble friend is an expert on this matter and I think his remarks were misplaced, if I can put it like that.

[Earl Attlee (Con)]

My Lords, I have no issue with what the noble Lord said, nor with what the noble Baroness said. This problem has been going on for a very long time and large numbers are involved; I do not disagree with that.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I move on to the comments of the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Hope. I am grateful for their support. They raised drafting issues, if I can put it like that, around the word “arranging” in Amendment 104F, and the noble and learned Lord, Lord Hope, questioned the use of the word “publisher”—although my noble friend Lady Kennedy said that she regards “publisher” as including online platforms. Nevertheless, I am not stuck with the specific wording in front of us. I think the purpose of the amendments is perfectly clear, and I am glad that both the noble Lord and the noble and learned Lord are nodding their heads.

I was disappointed with the answer given by the Minister. She made it clear that the Government take these issues seriously and said that they are constantly reviewing the law on these matters, but here is an opportunity to change it right now. There has been a very effective campaign on this issue, and it would have been an opportunity for the Government to change their approach. So I think that we on this side of the House should force the issue and test the opinion of the House, just to see the strength of opinion on this long-standing problem.

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[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I too support this amendment; I did at Second Reading. Indeed, I have added my name to the amendment but too late for it to appear on the fifth Marshalled List. The case for it could hardly be simpler or more compelling. Frankly, the illustration of the scooter helmet from the noble Lord, Lord Bach, ought of itself to be enough to carry this. I am against absolutism and total purity and inflexibility routinely, but flexibility and discretion are almost invariably required to be welcomed and valued, and they are here. It is nothing short of bizarre, absurd and conspicuously unfair to single out this one public office as one from which people are uniquely disqualified in the circumstances already sufficiently indicated. I need not waste another word. My only regret is that the amendment is not being put to the vote.

[Earl Attlee (Con)]

My Lords, I have worked with the noble Lord, Lord Bach, for many years in this House —sadly, on opposite sides of it—but I have never heard him make a stronger argument for anything. The only reason why I cannot say that I will support him is because I have not written a little note to my noble friend the Chief Whip.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I cannot say that I know many teenagers who, growing up, aspire to be police crime and commissioners. However, I was convinced by the arguments made in Committee and I wanted to just make a couple of additional small points. For me it is not just about unfairness; there is a principle here. If you work with teenagers and one of them has made a mistake and has been fined or has broken the law in some way, you say to them, “Now we want you to rehabilitate and become a fine upstanding citizen”, and, “The world is your oyster and you can do anything.” I cannot imagine anything that is more proof of being fine and upstanding than growing up and then saying, “I want to be a police and crime commissioner.” I do not even know whether I agree with the idea of police and crime commissioners, but that is not my point.

The other thing, on a kind of principle, is that increasingly I would like public servants and people taking on roles such as police and crime commissioners to have some real-life experience—and that might involve youthful indiscretions.

I completely support the amendment. There are principles here that could easily be upheld by the Government simply accepting it; it makes perfect sense. I think even the public would cheer.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

I am sorry I forgot to answer the noble Lord’s specific question. The problem is that I do not have the terms of reference to hand so I cannot give him the assurance he seeks, but I will write to him.

[Earl Attlee (Con)]

The noble Lord told the House that we agreed on a cross-party basis that these arrangements were appropriate. Was that by means of a vote or did we just acquiesce to it?

[Lord Sharpe of Epsom (Con)]

I am afraid I do not know. It predates me, sorry.

Police, Crime, Sentencing and Courts Bill

Earl Attlee Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Wednesday 15th December 2021 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, speaking first to the amendment tabled by the noble and learned Lord, Lord Thomas, which would make provision for regular reviews of out-of-court disposals, there is a method for this. It is scrutiny panels, which were introduced in previous legislation. They work very unevenly across the country. As a magistrate, I have served on a number of scrutiny panels for the British Transport Police and for a certain area of London, for both adult and youth offences. It is a very interesting exercise because you work with the police, the CPS, probation and some representatives of civil society. We had a rabbi on the scrutiny panel I was on for the British Transport Police, and we reviewed the out-of-court disposals.

The big problem with this approach was that there was no central record of what we were doing with our assessment of the out-of-court disposals. As far as I could find out, neither the Home Office nor the Ministry of Justice collected any of the results of these scrutiny panels. In fact, scrutiny panels do not sit in some areas of the country. Nevertheless, the approach advocated by the noble and learned Lord, Lord Thomas, is a good one. He said that he had held sympathetic discussions with the Ministry of Justice on this matter, so I wish him well with that endeavour.

I too am very sympathetic to Amendments 66C and 66D. As the noble Lord, Lord Paddick, said, simple cautions are quick, simple and, when they work, effective. One of the downsides of being a magistrate is that you see things only when they are ineffective—that is why they have come to court in the first place. Of course, if a simple caution is effective they would not come to court, but the noble Lord makes a very strong point about having something that is quick and simple for the police to administer and which is, for a first-time offender, a salutary experience: they have admitted their guilt, they have got the caution and they are on their way relatively quickly.

It is a similar point for the on-the-spot penalties for littering and other minor offences. A quick on-the-spot penalty will have a salutary effect for someone who is largely law abiding. It seems a pity to lose that from the armoury of the police. If the noble Lord moves his amendment, we will support it.

[Earl Attlee (Con)]

My Lords, the noble Lord, Lord Paddick, makes a very good case for his amendments. I hope that my noble friend the Minister can satisfy the House, but I think that he will struggle a bit.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, that is a very encouraging note on which to rise. I thank the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Lord, Lord Paddick, for bringing back matters that we discussed in Committee.

I say respectfully that Amendment 66B, tabled by the noble and learned Lord, Lord Thomas, commendably deals with the need for consistency in both the use of, and compliance with, the code of practice that will guide the use of diversionary and community cautions under Part 6 of the Bill. I am grateful to the noble and learned Lord for making time to discuss this matter with me.

For the record—it may have been in the mêlée that occurred when people were leaving—I thought I heard the noble and learned Lord refer to cautions as part of the sentencing framework. Without wishing to split hairs, we see this as separate from the sentencing framework and as an out-of-court disposal, but if the noble and learned Lord did say that, I understood that he was talking in broad terms. I am keen to reassure him and, indeed, the House that a fundamental aim of reforming the out-of-court disposal options currently in use was to improve consistency by reducing the number of disposals and creating two clear and statutory options.

Some attention was paid in Committee to the lack of data currently recorded and available on the use of cautions, whether conditional or simple, and the types of conditions attached to the former. We are keen to address that and believe that the proposals in Part 6 of the Bill, along with the code of practice that will accompany it, will do so. We are currently engaging with the Home Office regarding the outcomes framework so that police can accurately report the number of cautions given, and we will also explore the practicalities of gathering qualitative data from police on the types of conditions used.

We want to preserve the balance between a national framework for decision-making on the one hand and, on the other, operational decision-making that rests on the facts of the case and can be independently and locally scrutinised. We believe that working to develop more effective and consistent scrutiny panels in forces, thereby ensuring independent representation and transparency of findings, would be the most effective course of action. For that reason, we are currently engaging with stakeholders on precisely this issue, including a range of questions on transparency and scrutiny regarding the use and monitoring of the new cautions. It will only be possible to find the balance we seek once we have that feedback. I can assure the noble and learned Lord and the House that this will subsequently be included in the code of practice accompanying this legislation, which will itself be brought before Parliament for scrutiny in due course.

Amendments 66C and 66D, tabled by the noble Lord, Lord Paddick, relate to the essence of the reform that the Bill makes to the out-of-court disposals framework. As I noted in Committee, this reform has its roots in the work led by the National Police Chiefs’ Council, whose strategy in 2017 removed the need for the simple caution, penalty notice for disorder, and cannabis and khat warnings. The Government have listened to the NPCC and are now taking steps to ensure national consistency in the framework that it has helped to develop. The current position is that one-third of police forces have already moved to using only conditional cautions and community resolutions, and many more, including the Metropolitan Police, are currently in the process of moving over to this two-tier framework.

With Amendment 66D, the noble Lord seeks to retain penalty notices for disorder. We have already seen a marked decline in their use by police. The most recent CJS statistics show that the use of penalty notices for disorder has fallen 28% from the previous year. These are distinct from the fixed penalty notices, which are unaffected by Part 6 of the Bill.

I should also make reference to an important matter that was raised by the right reverend Prelate the Bishop of Gloucester in Committee, speaking through—if I can put it in these terms—the right reverend Prelate the Bishop of Durham. This was in regard to the intention behind the use of conditional cautions. The point she made was that they should have the aim of rehabilitation or restoration. The purpose of this is both to address the causes of the offending in order to support the offender to desist from reoffending and to put a welcome emphasis on the wishes of the victim, allowing for appropriate restoration to be made, where appropriate. The fact is that simple cautions and penalty notices do not allow for this victim-centred approach that mandates rehabilitative and restorative actions. I therefore do disagree with the noble Lord, Lord Paddick, that this gives rise to what he called—if I heard him correctly—a bureaucratic nightmare.

Retaining the use of penalty notices and simple cautions would undermine these aims entirely and indeed the reform itself. They are inconsistent with it. I heard the noble Lord say, somewhat in stereo as it was repeated behind me by the noble Earl, Lord Attlee, that I have my work cut out to persuade him not to divide the House. But I hope I have set out the principles that underly the new approach: the conditions support rehabilitation and encourage the offender to desist from reoffending. You simply do not get that with a simple caution or notice. I therefore hope that, having listened to what I have said, both he and the noble and learned Lord, Lord Thomas, will not press their amendments.

--- Later in debate ---

[Lord Bradley (Lab)]

My Lords, I will speak very briefly to this group of amendments. In particular, I support Amendment 82A in the names of my noble friend Lord Ponsonby and the noble Lord, Lord German. I declare my interest as a trustee and vice-chair of the Prison Reform Trust.

In Committee, I tried to make the arguments, both social and economic, against the use of short custodial sentences and in favour of robust community sentences, where appropriate. I will not repeat those arguments this afternoon. Suffice it to say that, in 2020, over 40,000 people were sent to prison, the majority of whom had committed a non-violent offence. Almost half were sentenced to serve six months or fewer.

As many voluntary and charitable organisations have pointed out, and as we have just heard, short prison sentences have proven less effective than community sentences at reducing reoffending. Short-term prison sentences have a particularly harmful effect on women, who often have primary care responsibilities. We will debate that later today. In 2020, the National Audit Office estimated that the annual cost per prison place was £44,640, whereas for a community sentence it was, on average, £4,305.

I support the views expressed by the noble Lord, Lord German. I have two quick examples which show why Amendment 82A is totally in line with the Government’s own recent policy statements. First, the Ministry of Justice’s Female Offender Strategy clearly states:

“We will support a greater proportion of women to serve their sentence in the community successfully and reduce the numbers serving short custodial sentences by … Ensuring that courts have better and more comprehensive information about female offenders to inform sentencing decisions”.


The Government support community sentences. As a committed member of the Minister’s Advisory Board on Female Offenders, I fully endorse this strategy. I believe it is totally consistent with Amendment 82A.

Secondly, there is the Government’s recently published From Harm to Hope: A 10-Year Drugs Plan to Cut Crime and Save Lives. They have committed £780 million to this programme, £120 million of which will be used to increase the number of offenders and ex-offenders engaged in the treatment they need to turn their lives around. The plan goes on to say that this enhanced spending on drug treatment and recovery will also drive down crime by cutting levels of drug-related offending.

I agree, and I believe these programmes will be successful if they are clearly linked to community sentences, not short-term prison sentences. Such community sentences, with treatment requirements—whether for drugs, alcohol, mental health conditions or a combination of all those requirements—properly funded and overseen by the reconstituted National Probation Service, will give the judiciary the confidence to administer them, as opposed to the expensive and futile experience of a short prison sentence.

I therefore believe that recent government policy announcements are totally in line with our proposals in Amendment 82A, and I feel sure that the Minister will give a very positive response to the proposal.

[Earl Attlee (Con)]

My Lords, I have no objection to short prison sentences per se. The problem I have is that our current prison system is so hopelessly ineffective at rehabilitation. That is why in Committee I tabled my Amendment 241, a proposal for drastic reform. I am grateful for the response I got from the Committee, and indeed from my noble friend the Minister, and that is why I saw no need to table it on Report.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I will speak first to Amendment 82A, to which I put my name, together with the noble Lord, Lord German. It specifies that short periods in custody should not be an inevitable response to someone with a history of relatively minor offending and that sentencers should be required to state the reasons for giving a prison sentence up to and including six months.

A coalition of views has been expressed in support of the amendment. We have, if she does not mind being described in this way, a campaigning right reverend Prelate who consistently talks about short prison sentences, particularly as they affect women, and my noble friend Lord Bradley with his expertise in this area regarding harmful effects on women in particular but also people with mental health problems. I also include myself in the coalition, because I regularly sentence short sentences.

The point I have made in these debates before is that, while the reoffending rate is indeed as bad as the right reverend Prelate said—there are high reoffending rates—in my experience as a sentencer, I sentence short sentences only when a community sentence has failed. I literally cannot remember a time when I have sentenced a short custodial sentence where there have not been—sometimes multiple—failures of community sentences. When I sentence, I am comparing a 100% failure rate for the community sentences of the people in front of me with the 60% failure rate of those who come out of short custodial sentences and reoffend within a year, so I am making a very unfortunate calculation when I give short custodial sentences.

Nevertheless, the noble Lord, Lord German, made absolutely the right point. We are trying to help the Government realise their own policy. The Government acknowledge what I have just said regarding the inevitability, sometimes, of short custodial sentences. The real answer is to come up with a robust, community-based approach that works and that sentencers have some level of belief in. I look forward to the Minister’s response to Amendment 82A.

I turn to the other amendments in the group. As I said in Committee, the Labour Party will abstain—with reluctance—if the noble Lord, Lord Marks, chooses to move his amendments to a vote. The point made by the noble Lord, Lord Faulks, was essentially the point the Minister will make, which is that what we are seeing here is the Government’s response to a particular set of offence types and that it is a policy decision on behalf of the Government, which they are entitled to take and which they see as a response to public demand. Frankly, I am not comfortable with the position I am taking on this, but the view of the Opposition is that we will abstain if the noble Lord, Lord Marks, decides to move his amendments to a vote.

Police, Crime, Sentencing and Courts Bill

Earl Attlee Excerpts

Lords Hansard - Part 2 & Lords Hansard - part two & Report stage
Wednesday 15th December 2021 Lords Chamber

[Earl Attlee (Con)]

My Lords, I strongly support my noble friend Lord Hodgson of Astley Abbots. I agree with everything that noble Lords have said so far. I moved a similar amendment in Committee, which worked slightly differently from my noble friend’s amendment.

I am surprised that Ministers have not resolved this issue, especially as it was specifically referred to in the White Paper, which talked about a consultation. Who would be against it? What does the Minister think the cost is if a prisoner reoffends immediately on release and has to be sent to prison again? It costs £40,000 per annum so a six-month sentence could be £20,000, simply for releasing the prisoner on an inappropriate day.

I strongly support my noble friend. If he takes this to a Division, I will support him. I hope that my noble and learned friend the Minister seriously considers reflecting upon this issue and coming back at a later stage. There was a guffaw from the Front Bench.

[A noble Lord]

It was coughing.

[Earl Attlee (Con)]

Maybe the Minister was suggesting something. Seriously, I hope that my noble and learned friend agrees to reflect on this matter, thus avoiding a Division.

--- Later in debate ---

[Baroness Lister of Burtersett (Lab)]

I am sorry to interrupt, but the Minister seems to be using this as an argument for not accepting the amendment. I have two points. First, there is no reason why the pilot should follow the example of the Scottish procedures, which, to me, seemed very bureaucratic when I read the helpful letter sent by the noble Lord, Lord Wolfson. Surely the whole point of pilots is to think about other ways of doing something before the Government actually legislate.

Secondly, yes, a very small number has been helped. We do not know why that is. Certainly, the letter I was sent tells us the what but not the why. But even a small number being helped is better than no one being helped in the period until such legislation can be passed.

[Earl Attlee (Con)]

My Lords, if the Scottish experience shows that it is no good, why on earth was it put in the White Paper?

[Lord Stewart of Dirleton (Con)]

The point is not simply to equiparate the example of Scotland; the point is to emphasise the complexities which underlie the matter. I will expand upon that in the rest of my answer.

We recognise that a high number of releases take place on a Friday. We accept that this can create challenges in some cases when it comes to prisoners accessing services, support in the community and finding accommodation, especially if they have multiple complex needs or a long way to travel to their home address.

I echo the observations from my noble friend Lord Hodgson of Astley Abbotts. As the House now appreciates, our recently published Prisons Strategy White Paper is allowing us to consult on the issue of Friday release from prison. In the course of that consultation, we will invite views on allowing prisoners who are at risk of reoffending to be discharged one or two days earlier, at the discretion of the governor of the relevant institution, where a Friday release can be demonstrated to be detrimental to an individual’s resettlement.

However, it is important that we allow time to understand the views of stakeholders, including operational colleagues, prison staff and the third sector. We submit that it would be premature to provide in statute for the pilot of a new release scheme, regardless of whether a sunset clause is attached—as the promulgators of the amendment have proposed—because, as mentioned, we are in the process of consulting on whether a legislative approach is necessary and, if so, what form such a scheme should take and how it should operate. We want to see the outcome of this consultation before we bring forward proposals. We will issue a response to the White Paper consultation in April 2022, and we will set out our plans on Friday releases moving forward from there.

I would call into question the appropriateness of using a sunset clause in relation to a pilot scheme. Sunset clauses are used only for temporary situations where the provision is needed only for a specific period of time and is not designed to remain on the statute books—for example, in the recent coronavirus legislation. This, I submit, is not appropriate for a pilot, as its purpose is to test out a policy with a view to fully enacting that policy if the pilot is found to work. A sunset clause would not allow this, so that, if we decided the right approach was to pilot and it was effective, we would still be required to wait for the next legislative opportunity to be able to rule it out fully. Therefore, tying our hands to a pilot scheme would likely extend the timescales required to enact full rollout of a new release scheme, if that was decided to be the most appropriate approach.

--- Later in debate ---

[Baroness Jones of Moulsecoomb (GP)]

When this Government want to bring in some quite nasty legislation, they can move very fast. I do not see why they could not bring in some rather nice legislation very fast as well.

[Earl Attlee (Con)]

Surely the Minister could introduce at Third Reading an order-making power that would last indefinitely.

[Lord Stewart of Dirleton (Con)]

My Lords, notwithstanding the fact that we are in the season of Advent, approaching Christmas, I am not prepared to argue on the basis of what is naughty and what is nice, or what is nasty and what is nice.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, prompted by the words of the noble Baroness, Lady Chakrabarti, I was reminded of a visit I made to the only young offender institution in Scotland, where we had the opportunity to speak to young people in custody there, the staff and the governor. They talked about how, without exception, those in custody had been subjected to a range of adverse childhood experiences. What came across from both the young people and the staff was that, even though those young people were aged 16 and over, it was not their fault that they found themselves in those situations; it was the adults and support mechanisms that had let them down. Moving the age of criminal responsibility from 10 to 12 is a move in the right direction and the minimum that should be done at this time, which is why I wholeheartedly support the noble Baroness.

[Earl Attlee (Con)]

My Lords, I rise briefly to support the noble Baroness in Amendment 89, for the reasons she has outlined. I think the noble Lord, Lord Ponsonby, in this Report stage seems to get the short straw every time. I have a question for my noble friend the Minister about the role of the CPS when deciding to prosecute. It has to apply the test of public interest. Is the very young age of a defendant a proper consideration for the CPS when making that public interest test?

[Lord Dholakia (LD)]

My Lords, Amendment 89 is also in the name of the noble and learned Baroness, Lady Butler-Sloss, who cannot be with us today but has faithfully promised to support it. I have a Private Member’s Bill on this same subject which is awaiting its Second Reading. Suffice to say, on at least two previous occasions, it has gone through all its stages in this House, but the general election intervened last time and halted its progress. Let me assure the House that the Bill is not going to be put into the long grass. I will come back again and again until we find some success in its implementation.

I also thank the noble Baroness, Lady Chakrabarti, for her support of this amendment, the noble Lord, Lord Ramsbotham, for his kind words, and my noble friend Lord German, who took up this issue in Committee when I was hospitalised on that particular day.

The amendment is designed to raise the country’s unusually low age of criminal responsibility from 10 to 12. At present in England and Wales, children are deemed to be criminally responsible from the age of 10. This provision was last amended over 50 years ago, in 1963, when the age of criminal responsibility was raised from eight to 10 by the Children and Young Persons Act of that year. This means that children who are too young to attend secondary school can be prosecuted and receive a criminal record. A 10 year-old who commits a “grave crime”, which includes serious, violent and sexual crimes but can also include burglary, will be tried in an adult Crown Court. A child of 10 or 11 who is accused with an adult will also be tried in the Crown Court.

The age of criminal responsibility in the United Kingdom is the lowest in Europe. In Ireland, in 2006 the age was raised to 12, with exceptions for homicide, rape or aggravated sexual assault. Even in Scotland, where the age of criminal responsibility is particularly low at eight, legislation in 2010 provided that children cannot be prosecuted below the age of 12. Outside the British Isles, the age of criminal responsibility is invariably higher: in Holland it is 12; in France it is 13; in Germany, Spain, Italy, Austria, Hungary, Bulgaria, Slovakia, Slovenia, Croatia and Romania it is 14. In most European countries it ranges between 14 and 18. Across Europe, the average age is 14.

The United Nations Committee on the Rights of the Child has repeatedly stated that our minimum age of criminal responsibility is not compatible with our obligation under international standards of juvenile justice and the UN Convention on the Rights of the Child. In a statement in 1997 the committee said:

“States parties are encouraged to increase their lower minimum age of criminal responsibility to the age of 12 years as the absolute minimum age and to continue to increase it to a higher age level”.


In subsequent reports in 2005 and 2007, the committee reiterated that a minimum age below 12 is not internationally acceptable. Recently the committee recommended that the UK should

“raise the minimum age of criminal responsibility in accordance with acceptable international standards”.

Taking 10 to 11 year-olds out of the criminal justice system will not mean doing nothing with children who offend. It would mean doing what other countries do with 10 and 11 year-old offenders; it would mean doing what we do with delinquent nine year-olds. In other words, it would mean dealing with the causes of these children’s offending through intervention by children’s services teams.

In the majority of cases where court proceedings are necessary, it would mean bringing children before family court proceedings, which can impose compulsory measures of supervision and care. In the most serious cases this can mean detention for significant periods in secure accommodation, but this would be arranged as part of care proceedings, rather than as a custodial punishment imposed in criminal proceedings.

Those who oppose increasing the age of criminal responsibility often argue that children of 10 to 12 are capable of telling right from wrong, as though it automatically follows that they should therefore be dealt with in criminal courts, but this does not logically follow. Most six year-olds have a sense of right and wrong, but no one suggests that they should be subject to criminal prosecution. In 2012, the Centre for Social Justice, which was set up by the former Secretary of State for Work and Pensions, Iain Duncan Smith, produced a report on the youth justice system entitled Rules of Engagement: Changing the Heart of Youth Justice. It said:

“There is now a significant body of research evidence indicating that early adolescence (under 13-14 years of age) is a period of marked neurodevelopmental immaturity, during which children’s capacity is not equivalent to that of an older adolescent or adult. Such findings cast doubt on the culpability and competency of early adolescents to participate in the criminal process and this raises the question of whether the current MACR, at ten, is appropriate.”


The evidence from international research is overwhelming. There is extensive evidence from neuroscientists, psychologists and psychiatrists demonstrating the developmental immaturity of young children. The Royal Society, in its report Neuroscience and the Law, concluded in 2011 that,

“it is clear that at the age of ten the brain is developmentally immature, and continues to undergo important changes linked to regulating one’s own behaviour.”

The Royal College of Psychiatrists has expressed the view, based on similar evidence, that our age of criminal responsibility is too low. The research shows that children of 10 and 11 have less ability to think through the consequences of their actions, less ability to empathise with other people’s feelings, a greater level of impressionability and suggestibility, and less ability to control impulsive behaviour. So while 10 year-olds may know that stealing something is wrong, their ability to apply that knowledge to their actions will be very different from that of an 18 year-old. This does not mean that children aged 10 or 11 have no responsibility for their actions, but on any reasonable interpretation of the evidence they must be regarded as less responsible than an older adolescent or an adult. It cannot be right to deal with such young children in a criminal process which assumes a capacity for mature, adult-like decision-making.

The Beijing rules on juvenile justice state that the age of criminal responsibility,

“should not be set at too low an age level, bearing in mind the facts of emotional, mental and developmental immaturity.”

The official commentary to the rules states that,

“there is a close relationship between the notion of responsibility for delinquent and criminal behaviour and other social rights and responsibilities”.

It is therefore significant that in no other area of the law, whether it is the age for paid employment, the age for buying a pet, the age of consent to sexual activity, or the age for smoking and drinking, do we regard children as fully competent to take informed decisions until later in adolescence. The age of criminal responsibility is an anomalous exception. In relation to the age of consent to sexual activity, for example, we regard any purported consent as irrelevant in order to protect children from abuse or immature sexual experimentation. It is completely illogical that we regard immaturity in this context as worthy of protection by law, but we take a diametrically opposite approach when it comes to criminal responsibility.

A 30 year-old with the mental age of a 10 year-old child would probably be regarded as unfit to plead, so why do we see a child of 10 as capable of participating in the criminal justice process? The illogicality of our current law is increasingly recognised. The Law Commission concluded in its report Unfitness to Plead that the age of criminal responsibility is not founded on any logical or principled basis and that

“there may be sound policy reasons for looking afresh at the age of criminal responsibility”.

Police, Crime, Sentencing and Courts Bill

Earl Attlee Excerpts

Lords Hansard - Part 1 & Report stage
Wednesday 8th December 2021 Lords Chamber

[Lord Pannick (CB)]

My Lords, if I may, I will add a point that follows on from what the noble Lord, Lord Beith, said. To require a life sentence is pure deception because we all know that life sentences are not life sentences, and there is a strong feeling that the life sentence for murder is a deception. Other than in the most exceptional circumstances, the person concerned will be released, and the judge pronounces, in open court, a tariff. I entirely understand why the Government wish to give comfort to the unfortunate relatives and friends of those heroic emergency workers who suffer this appalling treatment and die in service of the country, but it is a gesture—a misleading gesture. We really should not be perpetuating more and more life sentences when the reality is that people receive a term of years.

[Earl Attlee (Con)]

My Lords, arguing this case is far beyond my pay grade, but I support everything that my noble friend Lord Hailsham said in opposition to these amendments. I do not support Amendment 1.

[Baroness Hamwee (LD)]

My Lords, we have more and more life sentences and less and less judicial discretion. The point made by the noble Baroness, Lady Fox, that deterrence is not a factor in this really should not be glossed over; it is very important.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My noble friend is absolutely right to say that that is the origin of the life sentence for murder. It was a deal done, if I can put it in those respectful terms, but we have life sentences elsewhere in our legislation as well. The point that I was seeking to answer—and, with great respect, I think I have answered it—was, as I understood it when it was put against me: what is the difference if the trial judge is going to give a tariff of x years, why not just have a sentence of x years? However, there is a difference, as we all recognise, between a life sentence with a tariff of x years and a sentence of x years. We can have a debate—

[Earl Attlee (Con)]

My Lords, does the Minister not run the risk of ending up, in the case of the pub brawl, with the offender being sentenced to life but with only a four-year tariff?

[Lord Wolfson of Tredegar (Con)]

I would not use the word “risk” at all. On the one hand, I am being charged with not trusting the judges and, on the other, giving the judges too much discretion. I am entirely happy with a trial judge having the ability to set an appropriate tariff in these cases, as trial judges do in all cases of murder. Whether the tariff given is four, 10, 15, 20 or 30 years is entirely a matter for the judge. I am entirely happy to trust the judge. However, it is absolutely right for Parliament to say that, in these cases, where somebody has committed an unlawful act that has led to the death of an emergency worker who was acting as such, a life sentence ought to be the correct response from the court. Two points arise. First, with great respect to the noble Lord, Lord Carlile, if there are exceptional circumstances, that sentence does not apply at all. Secondly, if it applies, the judge can impose a tariff.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

I do not know which of the no-doubt multifarious press releases the noble Baroness read, but it was clear in the ones that I saw that the matter was going to be brought back here. This amendment was, I understand, tabled on 1 December, so the issue has been live. I am very happy to take any further interventions. That was probably not a good idea.

[Earl Attlee (Con)]

My Lords, I cannot resist the temptation. Would the Minister be prepared to express some uncertainty about the “exceptional” rule? If he expressed that uncertainty, it would mean that a Third Reading amendment to the noble Lord’s amendment would be acceptable.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am not quite sure what I am being asked to accept, but I do not have any uncertainty as to what “exceptional circumstances” is. It is a phrase used in this legislation; it is used in other legislation; it is a phrase that is well known to the courts. It is a phrase that they are perfectly able to deal with.

--- Later in debate ---

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

I am sorry to make a second intervention before the Minister has had a chance to answer the first. The point I wanted to make to the House and for the Minister’s consideration is really a very similar one. It seems to me that the suggestion of the noble Lord, Lord West, is a viable one and the suggestion of the noble Lord, Lord Ponsonby, is also a viable one. The noble Lord mentioned listening. We all know that he does listen and that he is prepared to listen. That listening generally involves talking and having meetings about amendments and proposals. This is a government amendment, and the Minister is quite right to point out that it was publicised on 1 December. That was one week ago for an important change in the law. The suggestion of the noble Lord, Lord Ponsonby, allows this to be considered and discussed with noble Lords about the House during the rest of Report, and it could come back in January, because we have this very long period due to the Christmas break. May I suggest that that is the fair and sensible way to proceed, rather than insisting on putting the Question on it tonight, landing the House with an unexpected vote if there were to be a vote, and failing to discuss it with noble Lords around the House in the meantime, which could quite easily be done?

[Earl Attlee (Con)]

My Lords, I am not convinced that the noble Lord, Lord Ponsonby, is correct because if we delay the amendment, we would be putting it at the back of the Bill, but it has to be in this position in the Bill. Therefore, I think we should leave it until Third Reading rather than delay it.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am not going to try to adjudicate on that point, which seems to be a point of procedure, better left to those who know more about it than I do. I have listened very carefully to the debate, and points of principle have been raised. With genuine respect, however, I believe that I have set out the Government’s position on those points of principle. Kicking the can down the road—attractive as that can sometimes appear—will not achieve anything substantive.

Police, Crime, Sentencing and Courts Bill

Earl Attlee Excerpts

Lords Hansard - Part 1 & Committee stage
Monday 15th November 2021 Lords Chamber

Moved by

[Earl Attlee]

210: After Clause 124, insert the following new Clause—
“Determination of sentence and predicted day of release
After section 60 of the Sentencing Code insert—“60A Determination of sentence and predicted day of releaseWhere a court is deciding the length of a custodial sentence to impose on an offender for an offence, having taking into consideration all other factors, the court must not set a length of sentence that is likely to result in the offender being released on a public holiday, Friday, Saturday or a Sunday except in exceptional circumstances.””

[Earl Attlee (Con)]

My Lords, I shall also speak to Amendment 211 in the name of my noble friend Lord Hodgson of Astley Abbotts. Both these amendments seek to deal with the same mischief: the release of prisoners on a Friday, Saturday, Sunday or bank holiday. I do not think either is perfectly drafted—for instance, mine would not prevent release on the day before a bank holiday.

I am lucky enough to have been able to spend quite a bit of time at Brixton prison, looking at how a well-run prison works. When I was looking at the release process, I saw that the last prisoner released had been released to no fixed abode—NFA—which I was told was not unusual. This generally means that the probation officer tells the prisoner where he will sleep that night. I was not surprised to see this because I was already aware of the NFA problem, and these amendments do not seek to deal with it.

--- Later in debate ---

[Earl Attlee (Con)]

My Lords, I confess that I am little disappointed by my noble friend’s reply. I hope that he feels able to have a meeting with me to discuss this in a bit more detail.

I am neutral on the solution. I tabled my Amendment 210 before my noble friend’s amendment was tabled, which is why mine came up first. The Minister identified a fatal flaw in my amendment, which is that a prisoner could acquire extra days to be served, so it is impossible for judges to determine the day of release for that reason alone.

My noble friend referred to Scotland. The fact that Scotland does not use its power correctly is not a reason why we should not take that power. I am aware of the universal credit problems. That is a complex issue for experts such as the noble Baroness, Lady Lister, not me. The Minister suggested why prisoners often have to be released on a Friday. Surely it is because, when the courts consider a case, they tend to sentence later in the week.

I was keeping my fingers crossed for this amendment but I have been a bit disappointed. However, my noble friend cannot deny that the problem exists. I suspect—indeed, I am sure—that he and I will return to this issue with a perfectly drafted amendment at a later stage, and with even more vigour. In the meantime, I beg leave to withdraw the amendment.

Amendment 210 withdrawn.

--- Later in debate ---

[The Lord Bishop of Bristol]

My Lords, I speak on behalf of my right reverend colleague the Bishop of Gloucester, who is unable to be in her place. She declares an interest as Bishop to Her Majesty’s Prisons in England and Wales. These are her words.

“I am delighted to add my name in support of Amendment 213, tabled by the noble Lord, Lord Dubs. I also have great sympathy for Amendment 212, tabled by the noble Lord, Lord Ponsonby. Both aim to remedy some of the justice system’s current overemphasis on prison sentences without sufficient regard for whether prison is an effective remedy for the offender or a guarantee to the safety and benefit of the community. By and large, short sentences have proven ineffective on both counts.

Sentences of six months or less are easily long enough to be disruptive but not nearly long enough to be effective in any rehabilitative programme. Short sentences are bad news for families, as we have discussed previously in Committee, in terms of the impact of imprisonment on primary carers and their families. Short sentences damage employment prospects, mental health and more. They are therefore disproportionately punitive, not least when the majority are for non-violent offences. They are also ineffective. Close to half of all those leaving custody go on to reoffend within a year of their release. That increases to almost two-thirds of those sentenced to less than 12 months in custody. The social and economic cost of this level of reoffending has been estimated at £18 billion per annum by the Ministry of Justice’s own analysis, while the costs to the communities and victims who suffer the effects of crime are impossible to estimate.

We know that community sentences are far more effective at reducing reoffending than short prison sentences and cost far less than a prison place. How have we reached a place in the UK in which imprisonment is so overused and seen as a solution to all criminal justice problems when the evidence and data simply do not support this? The UK has some of the highest imprisonment rates in western Europe. England and Wales have a prison population rate of 133 per 100,000 inhabitants—that is 27 per 100,000 above the median for EU member states. We are even worse against the bigger European states. For example, Germany has an imprisonment rate of just 69 per 100,000. That is roughly half our rate. Perhaps not coincidentally, Germany has operated a presumption against short sentences since 1969. Overall, our prison population has increased by over 80% in 30 years, which seems to suggest a trend across a series of Governments of trying the same thing in the hope of achieving different results.

It has been estimated by the Prison Reform Trust that two-thirds of prisoners are in prison for a non-violent offence. These offences are often theft or drug-related and linked to poverty, addiction and trauma, as we have heard, yet we seem to think it better to lock someone up rather than focus time and money on addressing the root causes. For women the rate is higher still: an astonishing 80%. Almost half are on short sentences of six months or less—the majority of all custodial sentences given to women.

As I mentioned earlier in Committee, I was fortunate enough to host an event here in Parliament, and I was delighted to welcome the Minister, the noble Lord, Lord Wolfson. I hope he will not mind if I remind him of some of the testimony we heard together. Niki Gould of the Nelson Trust, in which I declare an interest as president, told us that, ‘We fundamentally know that prison exacerbates women’s issues and leads to intergenerational cycles of trauma, abuse and reoffending.’ We heard that diverting 500 women through programmes such as the Nelson Trust not only is more effective at turning their lives around but comes at the equivalent cost of sending just five women to prison, and we heard, with some incredulity, from experts that 500 new prison places for more women serving more short sentences could be a better solution than long-term investment in women’s centres.

This is one of those happy occasions when the moral case happens to align with making excellent economic sense. An effective justice system that is relational, responsible and restorative would cost less in the long term. Finding a way to move beyond short sentences would better support families and children made vulnerable by family breakdown. If implemented as part of a broader package of support for problem-solving courts, women’s centres, and good and effective community sentences, it would lead to better results in terms of reoffending and rehabilitation, and, therefore, safer communities. It would come at a fraction of the price of maintaining the current revolving door of short sentences.

As we heard, in 2019 it seemed like we might have been approaching a breakthrough when the then Lord Chancellor went on the record in favour of a presumption against short sentences. If Ministers do not accept these amendments, I hope we will hear what they see as the future of short sentences and how they can be reduced.”

[Earl Attlee (Con)]

My Lords, I am grateful to the noble Lord, Lord Ponsonby of Shulbrede, for moving his amendment, and to the noble Lords, Lord Dubs and Lord Beith, for speaking to theirs. Those noble Lords have far more experience in these matters than me, but I have something to say that might assist the Committee.

In September 2017, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, initiated a debate on prison numbers. That stimulated me to take a very close look at our penal system. It is fair to say that the increase in the prison population is caused by sentence inflation and might have little to do with short sentences.

I believe that the effectiveness of a prison sentence is inversely proportional to the appropriate length of the sentence. Thus, very long sentences to protect the public are effective in terms of incapacitation. On the other hand, very short sentences are extremely poor at rehabilitation and reducing reoffending.

The reason short sentences are so ineffective is surely that the current prison system and its regime do so little to address offenders’ weaknesses. The chief inspector’s reports have been telling us this for years. By definition, these are minor offenders and very often prolific ones. They leave prison after a short sentence with the same weaknesses in terms of education, training and conduct they arrived with. Therefore, there should be no surprise that we have a reoffending rate of about 65% within 12 months of release. The Committee should recognise that these figures are flattered by those who were never going to reoffend for one reason or another.

I am sure that the Committee will understand that most prolific minor offenders stop offending by the age of 26 or possibly 30. Moreover, this is despite a terrible start in life, the fact that rarely has anybody ever loved them, and the lack of a positive male role model. Therefore, these offenders cannot be hopeless, something can be done with them; some improvement in education, training and conduct must be achievable. The difficulty is that these improvements will not be secured through the current prison system.

Amendment 241, which we will debate later, seeks to create a system to address the problem of the ineffectiveness of short sentences. I do not have a view on which is the superior amendment of the two that we are debating—both are commendable—but I take on board the points made by the noble Lord, Lord Pannick. I slightly worry about the inflation risk with Amendment 213, and I suspect that the noble Lord, Lord Beith, acknowledges that. However, I feel very strongly that if the state does decide to take a minor offender into custody, it must be certain that it is going to improve matters and do no harm.

[Lord Bradley (Lab)]

I rise to speak briefly to this group of amendments, which I strongly support. I declare my interest again in the register as a trustee and vice-chair of the Prison Reform Trust. We have already debated Amendments 215 to 218, principally regarding primary carers, which I believe are closely related to today’s amendments on short sentences, so I will not delay the Committee by repeating the arguments.

However, by way of further background, it should be noted that the prison population, as we have heard, has risen by 74% in the last 30 years and is currently projected to rise by a further 20,000 by 2026, with millions being spent on providing additional prison places. Yet there appears to be no link between the prison population and levels of crime, according to the National Audit Office.

More than 40,000 people were sent to prison to serve a sentence in 2020, the majority of whom had committed a non-violent offence, and almost half were sentenced to serve six months or less. Crucially, as many organisations have pointed out, including Revolving Doors and Women in Prison, short prison sentences are proven to be less effective than community sentences at reducing reoffending.

Of course, short-term prison sentences have a particularly harmful effect on women and primary carers, as we have debated. It is important to note that in a Parliamentary Written Answer on 30 June 2021, more than 500 women were in prison on a sentence of less than two years. We have already heard from my noble friend Lord Dubs the economic case against short sentences. In addition, the National Audit Office estimated that the cost of looking after short-sentence prisoners, not including education and healthcare, was £286 million a year.

It is also interesting to note, as we have heard tonight, public attitudes to prison sentences, particularly short sentences. I know that the Government take an interest in this. In a survey conducted in 2018 by Crest Advisory, fewer than one in 10 people said that having more people in prison was the most effective way to deal with crime. Early intervention, better parenting, discipline in schools and better rehabilitation were all cited as more effective responses.

Similarly, Revolving Doors undertook a survey which found that 80% of the public think that the theft of daily essentials such as food, sanitary products and nappies does not warrant a prison sentence, and that 74% of the public think that people with drug and alcohol addictions should receive treatment programmes not prison sentences.