Joint Enterprise (Significant Contribution) Bill

John McDonnell Excerpts

2nd reading
Friday 2nd February 2024 Commons Chamber

[Kim Johnson]

I totally agree, and we all saw that play out in the Post Office Horizon scandal.

I believe that the cases I have referred to prove beyond a shadow of a doubt that the current law allows for far too broad an interpretation of complicity and has enabled joint enterprise to be used as a dragnet for sweeping arrests and prosecutions that cannot be justified on the basis of natural justice or public safety, and that come at great cost to the taxpayer, placing an undue burden on our overcrowded courts and prisons.

[John McDonnell (Hayes and Harlington) (Lab)]

Let me follow up on the point made by the hon. Member for North East Bedfordshire (Richard Fuller) in relation to sentencing overall. Although the Bill would have a radical effect on the families and the people suffering from this legal abuse, what is required is simply a clarification of the law. A consensus has now built up across the legal system—from practitioners expressing concerns in court to members of the justice union, which includes the Prison Officers Association and others—that Parliament is holding them back in securing justice for people. It is believed that there needs to be a relatively minor change in the law to enable the courts to dispense justice in the way that they wish to do so.

--- Later in debate ---

[Gareth Bacon]

With the greatest respect to the hon. Gentleman, I gave my reasons earlier. It is not because I am trying to curtail this debate; it is because other debates are due to take place after this one. In answer to his substantive question, I am outlining the Government’s position on joint enterprise.

In considering Mr Jogee’s case, the Supreme Court considered the issue of parasitic accessory liability and concluded that a person should not be guilty merely for foreseeing that an accomplice might commit a second offence during the course of the original planned crime. It considered that the law should revert to the well-established rule that exists in relation to other types of joint enterprise offending—that is, that a person can be guilty of offences committed by other members of the group only if he or she intentionally encouraged or assisted those offences to be committed. Where somebody participated in an offence that involved a clear risk of harm, and death resulted, although with no intention that it should happen, he or she could still be convicted of manslaughter.

This led the Supreme Court to conclude that the law had taken a wrong turn 30 years earlier, by equating foresight with the intent to assist. The correct approach was to treat foresight as evidence of intent to assist in the crime. Following the decision, Mr Jogee was cleared of murder by the Court, but retried and found guilty of manslaughter. His previous sentence of life imprisonment with a minimum of 20 years was replaced by a fixed term of 12 years.

As a result of the decision reached in Jogee, parasitic accessory liability no longer applies as a basis for criminal liability. However, this narrow change to the law on joint enterprise has been widely misunderstood as meaning that all convictions under joint enterprise would now be found not guilty on appeal. In circumstances in which parasitic accessory liability previously applied, the principles applicable to all cases of secondary liability now apply.

The decision in Jogee effectively resolved what the Government view as the most troubling aspect of the joint enterprise law. The Government are aware that the ruling in Jogee was initially welcomed by the academic world and families of convicted offenders, but the change in the law also appears to have been widely misinterpreted as applying to joint enterprise overall, when the change is much more limited—that is, the change relates only to cases involving parasitic accessory liability. This has obviously led to defendants’ families feeling further disappointment that the decision in Jogee has had little or no impact on those serving time in prison for such crimes.

Let me turn now to appeals, which serve as an important corrective function for individuals, whether to correct a miscarriage of justice, such as the conviction of someone who is factually innocent, or to correct a legal error, such as a harsher sentence than is legally permissible having been imposed. They also serve important public functions in ensuring that the criminal law is interpreted and applied consistently and predictably.

I know that the substantive injustice test has previously been raised in the House in connection with joint enterprise—specifically, in respect of whether legislative change affects the validity of a conviction under the previous law. The Law Commission is considering that issue as part of its full and extensive review of the law in relation to criminal appeals and procedure.

On 27 July 2023, the Law Commission published an issues paper seeking evidence on whether reform to the law on appeals in criminal cases, including the tests applied by the Court of Appeal and the Criminal Cases Review Commission, is necessary. This will help to inform the wider consultation paper on appeals law that is planned for publication later this year. The Law Commission intends to produce a final report with recommendations in 2025, and the Government will consider them.

It is worth making the point that before anyone is charged with a crime, whether as part of a joint enterprise or not, the Crown Prosecution Service will consider prosecuting only if the case satisfies the full code test set out in the code for Crown prosecutors. That test has two stages: the first is the requirement for evidential sufficiency, and the second involves the consideration of the public interest.

At the evidential stage, a prosecutor must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction. That means that an objective, impartial and reasonable jury—or bench of magistrates, or judge sitting alone—properly directed and acting in accordance with the law, is more likely than not to convict. It is an objective test based on the prosecutor’s assessment of the evidence, including any information that he or she has about the defence. A case that does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be. If the evidential stage is satisfied, the prosecutors must then go on to consider the second stage and whether a full prosecution is in the public interest.

Having set out the background, let me move on to the Bill before us, the purpose of which is to amend section 8 of the Accessories and Abettors Act 1861. The amendment to section 8 appears to propose that for a person to be

“tried, indicted, and punished as a principal Offender”,

they must

“aid, abet, counsel, or procure”

the commission of the offence by

“making a significant contribution to”

the commission of an indictable offence.

The Government note that the declared purpose of the Bill is to better reflect a defendant’s actual contribution to a crime where this is committed as part of a joint enterprise. We also note that the proposed change to section 8 retains both its application to indictable only offences and its territorial extent, which is to say that the Bill proposes that any amendment to section 8 will continue to apply in England, Wales and Northern Ireland.

The Government are unable to support the Bill because it is technically flawed, and the overall impacts of such a change will need very careful consideration. As I said, joint enterprise is an extremely complex area of law—

[John McDonnell]

On a point of order, Mr Deputy Speaker. I do not wish to drag you into the debate; I am simply requesting a procedural clarification.

The Minister has just said that the Government are unable to support the Bill in its current form. In other words, they are not supporting it today. It is procedurally correct, is it not, that the Government could allow Second Reading and then delay any Committee proceedings until after the consultation on the Law Commission’s proposals and its examination of the issue overall, and amendments could then be tabled? If the Government fail to do that, it is difficult to see—unless they are committing themselves to introducing legislation—whether there is a serious or imminent proposal to reform the law in this instance.

I just wish to clarify that, because a great many people watching the debate will be confused by the process that we are going through. The opportunity is still there for the Government to allow the Bill’s Second Reading, thus bringing forward a reform that they may well wish to support at a later stage.

[Mr Deputy Speaker (Mr Nigel Evans)]

The case that the right hon. Gentleman has just stated is correct procedurally, but after the Minister has finished his speech I will call Kim Johnson, with the leave of the House, to see what the Member in charge of the Bill wishes to do.

Victims and Prisoners Bill

John McDonnell Excerpts

Report stage
Monday 4th December 2023 Commons Chamber

[Jonathan Edwards (Carmarthen East and Dinefwr) (Ind)]

Diolch yn fawr, Mr Deputy Speaker; it is a pleasure to contribute to this debate. I rise to speak to my new clause 33, a probing amendment based on concerns I expressed on Second Reading about the Victims’ Commissioner lacking enforcement power, undermining their ability to protect victims. The shadow Minister, the hon. Member for Cardiff West (Kevin Brennan), made similar comments during his contribution. I welcome the fact that Baroness Newlove has been appointed as Victims Commissioner—that is a step forward from where we were on Second Reading. I hope she has had the opportunity to influence the Bill before today’s debate.

On Second Reading, I talked about my constituents, the family of the murdered Mike O’Leary. Since Mike’s death, the family have become avid campaigners for victims’ rights, and the main thing they consider is missing from this much-awaited Bill is the enforcement powers that would give the Victims’ Commissioner some teeth. The murder of Mr O’Leary was a particularly heinous crime—his body was desecrated—and I look forward to the Sentencing Bill on Wednesday, when we will have an opportunity to discuss whether a new crime should be introduced and whether sentencing guidelines should be amended to reflect the extra suffering of the bereaved families.

Baroness Newlove, in her response to the King’s Speech in the other place, mentioned a sobering survey that her office did on victims’ experience of the criminal justice system. Of the 500 people surveyed, 71% were dissatisfied with the approach of the police to the crime they experienced, 34% said they would not report another crime, less than 29% were aware of the victims code, only 29% were offered the opportunity to make a victim’s personal statement and only 8% were confident that they received justice by reporting a crime. If the aim of the Bill is to bring victims’ experience into the heart of the criminal justice system, it has its work cut out.

The commissioner should be the key role for driving the change that is needed. On Second Reading, I pointed out the powers of the Welsh Language Commissioner under the terms of the Welsh Language (Wales) Measure 2011, introduced by the Welsh Government. The Welsh Language Commissioner’s enforcement powers range from offering advice and training to requiring an organisation to prepare a plan to prevent further continuation or repetition of the failure, requiring an organisation to take concrete steps to prevent further failure, publicising the failure of an organisation to comply with the measure and imposing a civil penalty of up to £5,000. Empowering the Victims’ Commissioner along the lines of the enforcement powers of other commissioners would considerably strengthen the hand of victims and help transform the criminal justice system so that victims are at its centre. I hope the other place may take up my new clause in its deliberations.

[John McDonnell (Hayes and Harlington) (Lab)]

I rise to speak to new clause 1, and new clauses 2 and 3 in my name. When we talk about victims, it is important that we also discuss taking responsibility for the victims of Parliament’s activities, and some of the victims of Parliament’s activities are the IPP—imprisonment for public protection—prisoners. The hon. Member for Bromley and Chislehurst (Sir Robert Neill) has campaigned on this matter for years, and the Justice Committee has undertaken detailed investigations and reports, which I think we need to take more seriously in this House because of the urgency of the matter.

There are nearly 3,000 IPP prisoners still in prison. They are in prison under legislation passed in this House by David Blunkett, who now recognises that there is an injustice—there has been a miscarriage of justice—and is appealing to us to correct that injustice by legislating now. There is example after example of people who have gone to prison on small tariffs. Martin Myers was sentenced on an 18-month tariff, and he has served 17 years. Wayne Bell has served 16 years on a two-year tariff, and Aaron Graham has served 18 years on a three-year tariff. This is Kafkaesque. These people have committed relatively minor offences, but are trapped within the prison system and cannot get out.

It therefore behoves us to address this issue, which is why the Justice Committee undertook the review and brought forward not a policy of releasing these prisoners without protection and security, or whatever, but of re-sentencing, with special expertise brought in to assess each prisoner and see whether it is safe at least to give them a determinate sentence so as to give them some hope. That is the problem here: we have lost 88 of these prisoners through suicide because they had no hope. If we listen to the Prison Officers Association, the Prison Reform Trust, Amnesty, Liberty and the families, we can understand why, because it is not just the prisoners who are serving these sentences, but their families.

What have we found in the last year? We have lost another eight prisoners who have committed suicide, with 1,600 self-harm incidents among this group of prisoners over the last 12 months. What we need to do now is to take forward the hon. Member’s proposals, and if the Government are not satisfied with them at the moment, let us work on them until the Bill goes to the House of Lords and see what we can do in the other place. In addition to that, I have put forward minor amendments saying that we should at least offer such prisoners—those inside, but also those on licence—advocacy and mentoring so that they can prepare themselves properly for resettlement and release from prison, but also so that when they are outside they are not recalled, as they are at scale at the moment.

[Sarah Olney (Richmond Park) (LD)]

I rise to speak to amendment 26, which I tabled. It is supported by hon. Members across the House and would enable victims to request a transcript of court proceedings free of charge, as that would be a huge step towards improving the transparency and accessibility of our justice system.

In 2020, my constituent Juliana Terlizzi was drugged and raped in her sleep by her then partner. Two years later, Juliana’s attacker was finally convicted, but she can barely remember what was said in the courtroom due to trauma and emotional distress. Following the trial, she was advised by a therapist to apply for a transcript of proceedings to allow her to revisit and process what was said in court. Her application for a free copy of the transcript was rejected, and she was then quoted an astonishing £7,500 by one of the private companies outsourced by the Government to produce transcripts. I soon discovered that Juliana’s extortionate quote is not an isolated case. Other victims have faced fees of up to £22,000. How can anyone be expected to pay such a fee? Court transcripts should not be a luxury that only a few victims can afford; they are a vital tool in aiding victims’ recovery. As victims and bereaved families do not routinely attend trial, transcripts are often the only means available to them to establish exactly what happened in the courtroom.

I secured an Adjournment debate on the cost of court transcripts last month. During the debate, I was pleased to hear the Under-Secretary of State for Justice, the hon. Member for Finchley and Golders Green (Mike Freer) affirm the Government’s commitment to the principle that justice must be open and transparent, and I welcomed his comments regarding the work that officials within the Ministry of Justice are doing to improve access to court transcripts. I welcome the Minister’s opening remarks committing to a trial of making sentencing remarks available free of charge. However, it is important to establish that we still need full transcripts to be available, so that victims can have the context within which those sentencing remarks are made. The importance of access to transcripts has been emphasised by the Victims’ Commissioner, the Justice Committee, charities such as Rape Crisis, Refuge, and Support after Murder and Manslaughter, and dozens of hon. Members from six different parties across the House.

There are steps the Government could and should be taking to reduce costs, such as utilising new technologies and assessing the value for money of contracts held with transcription services. I have repeatedly raised the idea to Government of enabling victims to request an audio file of court proceedings. That would be a low-cost solution to improving transparency and ensuring that victims can access a record of court proceedings. I welcome the commitment of the Under-Secretary of State for Justice in that Adjournment debate, and in written correspondence to me, that he will look in greater detail at that issue. Above all, victims and bereaved families need access to full, accurate transcripts of court proceedings at no cost to themselves. Anything less will be an injustice. I urge Ministers in the Ministry of Justice to listen to the concerns of victims, and to look more closely at what further can be done to tackle the injustices faced by victims.

Prison Capacity

John McDonnell Excerpts

Monday 16th October 2023 Commons Chamber

[Alex Chalk]

l pay tribute to my right hon. and learned Friend. I talked about tough decisions being made in the white heat of the pandemic, and he is the one who said that we will not get rid of the jury system on our watch. My goodness, he was right to say that. It was a tough call, but it was manifestly the right one.

Lest we forget, Five Wells and Fosse Way have opened and HMP Millsike is currently under construction, going alongside Garth, Gartree, Grendon/Spring Hill and other prisons. My right hon. and learned Friend is right that there has been an issue with planning. I have said that, with an additional £30 million, we will identify further sites in 2024 and get the planning permission well in advance, because we cannot have a situation in which these critical building programmes are held up by the planning process. We are changing to a new approach, and we are putting on the afterburners to make sure those prisons get built.

[John McDonnell (Hayes and Harlington) (Lab)]

I declare an interest as an honorary life member of the Prison Officers Association.

In his statement, the Secretary of State celebrated the fact that the prison population has risen to 80,000. When I was elected in 1997, it was a scandal that we were at the 40,000 level. Part of the problem is the lack of crime prevention, but there is also a failure of rehabilitation. The statement mentioned probation, but there was no mention of prison staff. There is a desperate need for adequate prison staffing if we are to secure the rehabilitation of prisoners. What will be the staff-prisoner ratio in our prisons following these reforms?

[Alex Chalk]

I am grateful to the right hon. Gentleman for raising the issue of prison staff, as they are ultimately the most important factor, beyond the nature of the prison estate, in making the difference to whether prisoners are kept safe and rehabilitated. We are increasing the number of prison staff, and I think an additional 700 staff were recruited in the last period for which figures are available. The other important point is retention, and we are starting to see a positive trend in retention.

I also make the point that those prison officers who stuck by their duty during the pandemic and went into work when it was tough to do that—when their parents and friends would have been telling them not to do so—are the ones who ensured there was not a complete catastrophe in our prisons in terms of loss of life, and they should take enormous credit for that.

His Majesty’s Prison and Probation Service

John McDonnell Excerpts

Tuesday 4th July 2023 Commons Chamber

[John McDonnell (Hayes and Harlington) (Lab)]

I pay tribute to the Chair of the Select Committee, the hon. Member for Bromley and Chislehurst (Sir Robert Neill), who gave a comprehensive overview of what is happening on prisons and probation. I am so pleased that the right hon. Member for Romsey and Southampton North (Caroline Nokes) raised the issue of children. When we had the debate on imprisonment for public protection sentences, it focused on the fact that the whole family is serving the sentence and we do not give enough consideration to the implications for the family, and particularly to the support needed to assist the rehabilitation of prisoners as they are released.

I will declare an interest, as I am an honorary life member of the Prison Officers Association. There is no financial interest, and in fact I am told by the POA that it does not even gain me an extra pillow in a cell if I ever need it. It is as simple as that. We have had discussions over recent months—in particular a presentation in the Jubilee Room a few weeks ago, which a number of us attended—where we have been meeting prison officers working on the frontline. I want to report the conversations we have had and, on their behalf, set out some of the concerns they have expressed, which build much upon what my hon. Friend the Member for Hammersmith (Andy Slaughter) said about the state of prisons.

There are three messages that prison officers want to get across. The first is that the austerity Budgets have taken so much from the Prison Service over the past decade that prison officers have left the system. It can only be described as being in crisis, and that is not just putting prisoners and prison officers at risk but putting the public at risk of dangerous reoffending. The second message is that Ministers need to understand that they cannot run prisons on the cheap. It requires investment, particularly in staffing, to ensure safe, secure and purposeful regimes. The third message, which the Chair of the Select Committee has raised and which I will come back to, is that prison officers want the Minister to know that they are fed up. Morale is at an all-time low, and it is developing into real anger at how they have been treated. To give one quote, they felt like they were “disposable commodities” to be “worked to the bone” and then discarded. They are voting with their feet to leave the service.

Mention has been made of the budget cuts that have taken place over the years and how we have arrived at this situation. To give one statistic, at one point at the height of austerity after 2010, the Prison Service saw a 30% cut in overall expenditure. As my hon. Friend the Member for Hammersmith has said, the figure is still 12% below what it was in 2010. Alongside that, we have had a number of fairly disastrous privatisation experiments—those have not just been in probation, but in the maintenance of the prisons themselves.

What happened in the first years of austerity was startling. In the early-2010s, a quarter of the operational workforce was laid off, and a crisis of violence was unleashed. Having laid so many staff off, we also got into a vicious downward spiral of insufficient staff and increasing violence, and therefore problems with retention. Recruitment drives simply failed to resolve the situation.

On one estimate, during that period we lost 100,000 years of professional experience built up over decades. As a result of that, exactly as has been said, prisons are fearful places with prisoner-on-prisoner assaults and assaults on staff, which have soared, so prison officers and support staff are leaving in droves. We have heard some of the statistics. Mark Fairhurst, the POA national chair, presented evidence to the Justice Committee, where he explained, just as my hon. Friend did, that many leave

“within the first two years”.

He said:

“We are at the highest attrition rate that the service has ever seen. We are currently running at 16% for prison officers and 19% for operational support grades. Some areas of the country have seen attrition rates of between 35% and 45%.”

The Chair of the Select Committee mentioned the survey of how prison officers are feeling. Exactly as he said, half of those surveyed do not feel safe at work and 80% said that staff morale at their establishments was bad. When we talk to officers at some establishments, they tell us that it has collapsed completely. Many have a lack of confidence in the future.

It was also raised with us in conversations that the number of prison officers suffering from post-traumatic stress disorder is rising and at critical levels. Serving and ex-prison officers receive little support for PSTD, and it has an overwhelming impact on their lives. It is unfortunately becoming almost accepted as the norm that prison officers will have to go through that. Mark Fairhurst told the Committee:

“There is no support if you have mental health problems. More and more of my members are getting diagnosed with PTSD, because of the trauma that they deal with and the things they see. There is no mental health support on site for those staff. They are leaving the job with ill health or capability retirement, so there is no support there for mental health.”

This is one of his most startling statements:

“We have come across scenarios in some jails where the most experienced member of staff on that same wing has nine months in the job. It is the blind leading the blind.”

To try to give us an understanding of what that meant, he said:

“When you have inexperienced staff dealing with experienced prisoners who have been in and out of prison all their lives, it has a massive knock-on effect on stability.”

Spending during the first five years of austerity fell by 20%. That is why, as has been said, with spending levels cut so dramatically over a period, it is hard for prison officers to fully comprehend why £4 billion is being spent on building a new generation of prisons to boost capacity when our existing prisons have become mired in squalor—that is the description used—and, according to the Public Accounts Committee only two years ago, there was a £1 billion backlog of work needing to be done.

Prisons are violent places. We have, at times, reached catastrophic levels of violence. It needs to be acknowledged—not to accept that it will continue—that violence is part and parcel of prison life. Prisoner officers cannot understand that the Government will not even include levels of violence in their new key performance indicators for prisons. My hon. Friend the Member for Easington (Grahame Morris) introduced a private Member’s Bill in the last Session—the Prisons (Violence) Bill. We urged parliamentarians to support it to enable that sort of monitoring to be part and parcel of the performance indicators, so that the Government could develop a full strategy.

The POA has joined, as a founding member, the Joint Unions in Prison Alliance, alongside the other unions and working with the Prison Service. It fully supports the Safe Inside campaign to reduce violence in prisons. It is especially concerned about what it described as the “ultra-violence” in the youth custody estate. It warns that an urgent review is needed of the protections that prison officers need when working in that estate. It comes back to investment. The POA also said:

“Dangerous, squalid jails…make rehabilitation impossible. Prisoners are released more criminalised, more traumatised, more addicted to drugs than when they arrived. This is madness and should be completely unacceptable in a civilised society. Prisons are often the best chance that state has to turn someone’s life around, whether through education or treatment, but we’re doing the opposite—we’re making them worse.”

The POA has reached such a state of frustration that it is calling for a royal commission. I believe that was one of the proposals considered by the Conservative party before the last election. A royal commission should examine the problems in our justice system from end to end, to try to tackle imprisonment, incarceration and, more importantly, rehabilitation and, as other hon. Members have said, to look at preventing crime and preventing people reaching imprisonment.

The POA wants to raise clearly what has happened on pay and on retirement age. On pay, the unions welcome the Government’s increase in early starters’ pay, but are concerned about recent statements from the Government about not honouring the pay review rewards in future. Nothing will undermine morale more. When there is an independent assessment of pay, the POA is not allowed to take industrial action like other unions, and therefore has to rely on the pay review bodies. That the Government say they will not honour those recommendations is utterly defeating when prisons are seeking to recruit and retain.

The POA has made it clear time and again that it believes that a pension age of 68 is unacceptable for the physical job that prisoner officers undertake. It would welcome the Government returning to the negotiating table on retirement age, which they walked away from in 2016 after the POA rejected the offer to reduce retirement age. Those negotiations need to be reopened, because 68 is too late.

I have tried to give some understanding of what prison officers are going through at the moment. They ask straightforward questions: what happened to the Conservative party’s commitment and pledge of a royal commission on criminal justice? Will the Minister bring back those proposals? Will he commit to investing the resources, especially in staffing, that are needed to save the system from the current crisis? Will he look to improve workforce morale and retention by looking again at the issues of pay, terms and conditions, and the pension age, which is currently threatened? The final issue they want to draw attention to is the fact that there needs to be a clearer programme to reduce prison violence, ensuring there is sufficient support for prison staff so that they can perform their professional jobs without risk to their lives and limbs.

Victims and Prisoners Bill

John McDonnell Excerpts

2nd reading
Monday 15th May 2023 Commons Chamber

[Sir Robert Neill]

The short answer is that none has come to my attention or that of the Committee. We did endeavour to secure a range of views, particularly from practitioners in the field. It is helpful to hear such views, and I therefore hope that as the Bill proceeds, the Secretary of State and his Minister of State, my right hon. Friend the Member for East Hampshire (Damian Hinds), will, as fair-minded people, find opportunities to take them on board.

What we want is a system that is robust, because that is critical, but also—as the Secretary of State said—a system that is operationally effective. One of my main concerns is that the evidence we did receive suggested, in respect of nearly all the principal aspects of part 3, that there were serious question marks over how operationally effective it would be. This is a classic case of where Committee improvements ought to be made, and I hope the Government will move to do that.

I want briefly to flag up some of those areas. The current test is a very short one of some 20 words, but it is robust. Essentially it says that the protection of the public comes first, and that is what we want to achieve anyway. It is expanded somewhat by a non-exhaustive number of other matters that can be taken into account. There is nothing wrong in that, but I hope that it does not make the test unduly complicated. It is also worth remembering that there is sometimes a misunderstanding, particularly in media reporting, in relation to the work of the Parole Board. That comes in two forms. First, as the Secretary of State said, in 99% of cases people released on parole do not reoffend, and that context is important. Secondly, there is a suggestion of some kind of balancing test, but that is not the case.

It is clear from the evidence that since the case of Knight in about 2017, the Parole Board very properly changed its guidance to reflect the primacy of the protection of the public test. I think there is an element in this part of the Bill of trying to solve a problem that does not exist and therefore a risk of over-engineering the system, which we might not need. So let us look again at the best way to do the test. There is nothing wrong with changing it, and perhaps nothing wrong with expanding it, but are we sure that we are getting this right?

The next matter is the way in which the Secretary of State will, from time to time, step in and review. There is nothing wrong with a review but I have two concerns about the way it is done. In certain cases set out in the Bill, it will be necessary, if the Secretary of State chooses to carry out those powers, to intervene and substitute the Secretary of State’s decision, including on the facts, for those of the board, which will have heard first-hand evidence. The Secretary of State is not in a position to hear first-hand evidence, so he would have to rely on a provision that enables a person to be appointed to interview the applicant for parole and then report to the Secretary of State. I do not think the Secretary of State would normally feel happy acting on hearsay in such circumstances, because at the end of the day it is second-hand evidence and he would have to substitute his judgment for that of those who had heard first-hand evidence. I am not sure that is a fair or satisfactory way of resolving that problem.

The second concern relates to the very proper means of review. As the Secretary of State rightly said, there has to be an independent review, but at the moment the suggestion is that, among other things, this could go to the upper chamber. I would ask him to reflect on the appropriateness of the upper chamber. Logically, the element within the upper chamber that would hear these cases is the upper tribunal. The upper tribunal, as a logical part of that, would be the administrative chamber, which is essentially there to deal with points of law; it is not a fact-finding body.

The route of application to appeal against the Secretary of State’s decision has two grounds. One is the normal ground of public law and judicial review—involving unreasonableness, for example—and that is fine. The administrative chamber no doubt deals with those kinds of things. This also includes an appeal on the merits, and it has to, to make it ECHR-compliant, but this would involve a rehearing, and the upper chamber has no experience of re-hearing the merits. So this route of appeal does not seem to be right or practical.

Another point to remember is that there is no requirement for leave in this route. If someone appeals to the upper tribunal on the ground of legal deficiency, such as unreasonableness, they have to get leave. If they apply on the ground that the Secretary of State got it wrong on the merits, they do not have to get leave at all and they can have a rehearing, so everyone who feels aggrieved at the Secretary of State’s decision will apply on the ground that they want to challenge the merits and therefore have a rehearing. The number of unmeritorious appeals will therefore greatly increase, which is hardly the objective of this piece of legislation. It would also put these matters into a chamber that—with absolute respect to those who sit in the administrative chamber—is not geared up to hear evidence to do rehearings. It is going to the wrong place, so I hope we at least reflect on a better means of achieving that end.

The same goes for the Secretary of State’s powers to intervene and rehear. Would it not be better simply to toughen the current power of redetermination? Surely asking for a case to be reconsidered by a differently constituted panel would be a more practical way forward. There are practical and sensible things that could be done, but unfortunately they were not picked up by the Bill’s drafting, perhaps because nobody who knows much about it was asked.

Clauses 42 to 44 disapply section 3 of the Human Rights Act for the purposes of these hearings. Whatever one’s view of the Human Rights Act, there is no evidence that this is a problem in such cases. In fact, the evidence we heard from practitioners, from both sides, is that it can be helpful to have to have regard to section 3 in these hearings. These clauses seem to be trying to solve a problem that does not exist, and I wonder whether we really need them. It is perfectly possible to have a robust system that still complies with section 3. This is a needless distraction that sends the wrong signal about a certain desire to pick unnecessary fights, which I know is not the current Secretary of State’s approach.

Clause 46 addresses the Parole Board’s composition and the appointment of board members. It is perfectly legitimate to have more people with law and order experience, which could be included as a category, but we must be careful to make sure there is no suggestion that the Secretary of State can say that a particular class of person should sit on a panel for a particular type of hearing, as that would go beyond independence. There is strong case law from our domestic courts, never mind elsewhere, to say that the Parole Board carries out a judicial function and therefore must have a proper degree of judicial independence. There is a risk that the clause, as currently drafted, offends against that.

The final issue that arises is with the power to dismiss the chair of the Parole Board. There is already a protocol for removing a chair of the Parole Board who loses the Secretary of State’s confidence, and it was exercised after the Worboys case—I think it is called the Mostyn protocol. Why do we need an extra statutory power when we already have a way to do it? Establishing a statutory power creates another problem, because clause 47 says that the chair of the Parole Board shall not sit on any panels of the Parole Board. When we heard evidence, no one could work out why, but it has subsequently been suggested to me that it would be interfering with judicial independence to remove a chair who is sitting on a panel.

Perhaps the answer is not to have the needless power to remove a chair, because we can see the illogicality: if we want a Secretary of State to be able to remove the chair of the Parole Board, we have to make sure they are not carrying out any judicial functions, because otherwise the Secretary of State would be interfering with judicial independence. But we already have a means of removing a chair of the Parole Board, and it works, so why go down this rabbit hole?

My observations on part 3 are intended to be helpful and constructive, and I am sure the Secretary of State and the Minister will take them on board.

The Victims and Prisoners Bill makes no mention of the continuing injustice, as the Secretary of State rightly said—the blot and stain on our judicial landscape—facing a particular class of prisoner: those imprisoned for public protection. The House recognised that indeterminate sentences had failed and so abolished them, but not retrospectively. An increasing number of people on open-ended sentences, which Parliament has abolished, are being recalled. People have no hope of their sentence coming to an end and, because they are also potentially subject to a life licence, more people have been recalled than are serving their original sentence. Something has gone badly wrong here, which is doubtless why Lord Blunkett, the creator of the sentence, said, “This has gone wrong and needs to be changed.” It is also why Lord Thomas of Cwmgiedd, a former Lord Chief Justice of England and Wales, and not someone generally regarded as a soft touch in sentencing matters, said, “The only logical way to resolve this is to have a resentencing exercise.”

[John McDonnell (Hayes and Harlington) (Lab)]

I speak as an old boy of the Justice Committee. I do not want to rehearse the debate we had only a few weeks ago, but there seems to be some reticence among those on both Front Benches about the proposals the hon. Gentleman put forward through the Select Committee; they seem to think that they would result in the large-scale release of dangerous prisoners. Could he emphasise exactly what the Select Committee was proposing: a panel of experts carefully preparing a way forward on resentencing that balances public protection and the rights of the victims, with securing justice? That has the wholehearted support of organisations on the frontline, including the Prison Officers Association, the probation officers, the courts staff and, as he said, the former Home Secretary and the Supreme Court judge. This needs to be addressed now. If we do not use this Bill to introduce such a measure, we will lose the opportunity, possibly for another number of years.

[Sir Robert Neill]

The right hon. Gentleman is entirely right and I agree with him. We are in a hopeless situation at the moment and there has been a misunderstanding. The Select Committee took careful evidence and made a number of recommendations, not purely on resentencing, but on a number of other practical measures that may be taken to improve the way in which IPP prisoners are dealt with in the system. Frankly, at the moment, they are set up to fail. They have to go on courses, which they are told about only a few weeks before their parole hearing and the course waiting list is two years in some places, we are told. They may be in a prison where the courses do not exist or are not available. They are then on permanent licence, where they can be recalled at any time. There is scope to have that removed after 10 years. We can see no evidence as to why the period should not be five years, rather than 10. If somebody has shown willing and gone straight for five years, there is no evidence to suggest that going on for 10 makes any difference to the reoffending rate. So why do that? Why set people up to fail?

On the resentencing exercise, as the right hon. Gentleman rightly says, we were not at all seeking to say, “Everybody will be resentenced immediately. Everybody will be released immediately.” Having acted in some cases that involved sentences of this kind, I know that some people will always remain very dangerous. There are some people who, by the nature of the index offence, will remain in prison for a long time and the determinate sentence that they ultimately receive under our scheme may be a very long one. So the idea that that approach opens the doors is wrong. What it does do is give certainty to everybody and give hope. Tragically, I was informed that, in the four weeks after the former Secretary of State rejected the entirely of the serious recommendations of the Select Committee, three IPP prisoners took their own lives. I hope that there was no connection there, but it does not say much for the sensitivity with which this has been handled in the past. I know that that is not the view of this Secretary of State, who is a deeply humane man and will want to do justice by this.

The resentencing exercise is not something that can be done quickly. It would require an expert panel of people, including lawyers, to say how best to do it and to work it through. I beg the Secretary of State to think again about using this opportunity. I have had a clause drafted that would give effect to the Select Committee’s recommendation. I would much prefer it if the Government said, “We will pre-empt that and bring forward our own proposals to set up an expert panel.” That may take some time and it may not come into effect for a period, but it would at least give people hope that something serious was being done, that work was being followed up and that there was a willingness to look at the matter again; I would have thought that that was only fair. Equally, it cannot be fair that soon some people will have served longer than the maximum sentence for the offence of which they were convicted. That cannot be just. This is not being soft. It is just being fair and just and that is part of the balance of the system.

I commend the good parts of the Bill to the House, and commend the Secretary of State to the House and to the legal fraternity, who respect him highly. In considering those outstanding matters, I ask him to apply exactly the same test as he and I, and any other advocate worth their salt, have set to juries day in, day out: try the case on the evidence, go on the evidence and apply your mind fairly and dispassionately. That is the right approach. If he does that, we will come to some changes in the Bill.

Imprisonment for Public Protection Sentences

John McDonnell Excerpts

Thursday 27th April 2023 Westminster Hall

[John McDonnell (Hayes and Harlington) (Lab)]

I just want to raise three simple points. First, I congratulate the Chair of the Select Committee, the hon. Member for Bromley and Chislehurst (Sir Robert Neill), and the Select Committee overall on an immensely thorough report that deals with an issue that has hung over us for so long now that it is time to resolve it. I have the same optimism as him because of the change of personnel who will deal with this matter now. I think the Minister— I am about to flatter him, although he is not listening at the moment, so perhaps we can remind him of this later—will deal with this issue with an open mind, so there is a real opportunity here.

I also want to follow the Chair of the Select Committee in congratulating those who have campaigned over the years. Most of us can relate to this matter as a result of a constituent’s experience. All such cases are absolute tragedies. Many of these people accept they have committed a crime, and they accept the judge’s decision on the tariff as well, but they then get trapped in a Kafkaesque process of never knowing when they have met society’s requirements in terms of redressing what they have done. The result—we have seen all the evidence now—is the loss of life, which has been tragic. What is particularly moving is the fact that there have been suicides since the Government’s response. What this sentence has continuously done is create a sense of hopelessness among the individuals concerned, pushing many over the edge into mental health conditions, breakdowns and then suicide. The families serve the sentence as well, which has resulted in chronic tragedies among families too. It impacts on the parents, wives and children of those who have been sentenced in this way.

I have been in Parliament 25 years now, and I did not support the original indefinite sentencing proposals. I was on the Justice Committee a number of years ago, and in 2012, when it was agreed to abolish IPPs, I was elated. I actually thought justice would be served and that we would then rapidly find a mechanism for dealing with existing prisoners, because that was the spirit of the decision to abolish. That has not happened, and I think we have a duty—I do not place the onus only on the Government but on Parliament overall—to resolve the matter once and for all and to do so rapidly. The Minister was busy when I was talking, but we have a fresh chance now, with a new administration, effectively in the Department. With a new Minister and a new Secretary of State, there is the opportunity to go back, look at the response to the Select Committee report and engage again, and to do it rapidly.

I am a member of the justice unions parliamentary group, which represents the Prison Officers Association and Napo. I am an honorary life member of the POA. There is no financial relationship between the POA and the Labour party—the only benefit would be an extra pillow if I ever get sentenced. We have discussed the issue with the unions involved—these are the people who are dealing with it hands on. What the POA says very clearly is that it does not usually comment on sentencing policy, but it has made an exception in this case. It feels it has been given a task, in dealing with these prisoners, that is impossible. It is impossible to deal with the hopelessness felt by these prisoners. In many instances, because of the overcrowding and the lack of access to the programmes that are required to support them, it is also almost impossible to keep them safe. That is why we have had so many self-harm injuries and suicides.

The POA supports the proposal put forward by the Select Committee. The same goes for Napo, which has also pointed out that the Parole Board cannot deal with this serious matter as promptly as it should because of understaffing. Every expert opinion that the Select Committee has sought, whether it is the lawyers, the prisons officers or the probation officers, says there has to be some form of shift. The proposal from the Select Committee Opposition on ensuring that there is at least an exploration of the resentencing exercise is therefore one that any Government should seize with both hands. A group of experts who can go through in detail the processes that could be undertaken is the light that any Government would want to see at the end of the tunnel in terms of resolving this matter.

Concern has been expressed that this will create a problem of mass release, but the Select Committee has addressed that. The expert committee can advise on the timing, the way this is dealt with and how the whole issue can be properly resourced and timetabled to maximum effect, to the benefit of not only the prisoners currently serving indefinite sentences but the victims and the wider community. This is a way forward, and I hope the new administration and the new Minister can seize the opportunity; otherwise, we could be here in another 10 or 15 years’ time, and more prisoners will have lost their lives or suffered harm, and more families will have suffered.

On behalf of the constituents I have dealt with and all the professionals I link up with through the justice unions parliamentary group, I urge the Minister to see that now is the time to act. I believe that the Minister would have cross-party support in that; it would not be a political issue for banter or anything like that—it would fall into line with the cross-party approach that the Justice Committee has undertaken so successfully.

--- Later in debate ---

[Damian Hinds]

I make it on the basis of the profile of the prison population and the fact that prisoners have had parole hearings where determinations have been made not to release. That is based on the release test, with which I know my hon. Friend is extremely familiar.

It is vital for public protection that those serving the IPP sentence in prison, whether not yet released or recalled following release, are released only following a thorough risk assessment that finds that their risk has now reduced to the point where they can be safely managed in the community. That is a judgment for the parole board. It is for that reason we rejected the Committee’s recommendation of a full resentencing exercise for such offenders.

[John McDonnell]

I am not sure we all share the same understanding of the Committee’s recommendation. My understanding was that the Committee recommended bringing together an expert panel that would advise on the process. That does not mean the expert panel would precipitously leap us forward into a mass release or anything like that. It is just an expert panel that could advise the Government on how the process might operate. The Government could refuse its recommendations. It is just another way of exploring—to the point made by the hon. Member for Bury North (James Daly)—an evidence- based judgment rather than one based, frankly, on prejudice.

[Damian Hinds]

I assure the right hon. Gentleman that our decision is based on principles of public safety, consistent with wishing to help and support the prisoners on an IPP sentence through to the point where they can be released safely into the community. All of us want that ultimate goal.

The Committee also recommended a reduction in the qualifying period for licence termination from 10 years to five following first release from custody. As hon. Members know, the licence period following custody is an important tool not only for public protection, but to ensure that offenders are properly supported to manage risk when they are integrating back into the community. As I said earlier, offenders who originally received an IPP sentence did so because they committed a qualifying offence and were considered to pose a risk of serious harm to the public. It is extremely important to allow a proportionate licence period after release to ensure their safe management and reintegration into communities.

Prison Officers: Pension Age

John McDonnell Excerpts

Tuesday 16th November 2021 Westminster Hall

[John McDonnell (Hayes and Harlington) (Lab)]

I will try for less than that, Sir Charles. I declare an interest as another honorary life member of the Prison Officers Association. As one of my witty colleagues said, the only benefit is possibly a more comfortable cell.

The hon. Member for Sittingbourne and Sheppey (Gordon Henderson) summed up the argument precisely. I just want to remind colleagues that we had this debate some time ago with regard to firefighters and we had it with regard to police. I can remember the consensus that was built. No one wanted a firefighter of 60-odd coming through that window to carry us down a ladder. No one wanted that. Similarly, nobody wanted to see police at this age—up to 68—going out on the streets and trying to defend us when such physical assaults were occurring at the time. Nobody wanted that. To be frank, the reason why prison officers have been discriminated against is that, like their prisoners, they are locked away and we just want to look away completely from the problems that they experience. That is the reality of it. I am grateful to the hon. Member for Sittingbourne and Sheppey for time and again bringing to this House the reality of what the members of the Prison Officers Association and those across the service are actually experiencing—the physical nature of the job.

Let me also remind people of this. When we had the firefighters discussion, we looked at or had actuarial work done, and one of the interesting things was the number who died soon after retirement. We could not understand that, but part of it relates to their experience in work and particularly the stress that they were under, causing cardiovascular problems.

[Sir George Howarth (Knowsley) (Lab)]

Will my right hon. Friend give way?

[John McDonnell]

If my right hon. Friend does not mind, I just want to finish.

Exactly the same applies to prison officers. In fact, some would argue that it applies more, because the nature of the threat is continuous. The time has come to deal with this. Exactly as the hon. Member for Sittingbourne and Sheppey has said, the talks need to start to resolve it now, because none of us wants to put these workers through that sort of threat, suffering and stress—all of that—by forcing them to work that much longer.

In addition to that, the point that they would make—this is dedication to the job—is that they want to deliver the best service possible. When they get to a certain age, they are not able to guarantee the safety of the prisoners, because they do not have the physical resource to do it. What officers want to do is deliver a quality service. We should be supporting them in that, so the appeal is to start the talks again, start negotiating, and if more is to be paid in contributions, more should be paid in salary to compensate for that.

Protecting the Public and Justice for Victims

John McDonnell Excerpts

Wednesday 9th June 2021 Commons Chamber

[John McDonnell (Hayes and Harlington) (Lab) [V]]

The title of this debate is “Protecting the public and justice for victims”. Young people are part of the public, so I want to raise the issue of young people, particularly those imprisoned in youth offender institutions, secure training centres and secure children’s homes. I worked with children in care for over a decade, so this has been a personal interest of mine, and I am a member of the justice trade union groups.

The good news is that the number of young people imprisoned has fallen over the past two decades, to about 850 on average. The bad news is that it is not reducing reoffending by those individuals; 71% of them reoffend within 12 months of leaving a secure placement. In addition, although the number may be declining, the latest statistics on behaviour management measures, published in the Youth Justice Board report in February, demonstrate just how poor the behaviour management problems are in these institutions. The numbers on restrictive physical interventions and self-harm are at a five-year high. The system is failing young people.

We know that the right interventions work. If we can intervene at an early enough age, we can grow people out of crime. All the evidence points to the benefits of smaller institutions nearer to young people’s homes and communities to maintain family contact, and, in educational settings, to investing intensively to overcome past educational failures and maintaining educational opportunities for these young people.

Unfortunately, the Government’s new reform plan, to merge youth offender institutions, secure training centres and secure children’s homes into secure schools, flies in the face of all that evidence. We now know that the Government’s proposal is that autonomous trusts will run those schools, under the Ministry of Justice. The Police, Crime, Sentencing and Courts Bill seeks to promote new charitable providers to expand youth detention, by the looks of it. The University and College Union and others have a real fear that that is simply renaming child prisons as schools under multi-academy trusts.

The fall in numbers gave us the opportunity to ensure that we could tackle youth offending effectively, rather than simply investing again in ineffective incarceration. We believe that simply renaming these institutions will fly in the face of all that is needed at the moment, so many of us are urging the Government to think again and work with civil society organisations, professionals and unions to design an effective system that is based on rehabilitation, rather than incarceration.

Police, Crime, Sentencing and Courts Bill

John McDonnell Excerpts

2nd reading & 2nd reading - Day 2
Tuesday 16th March 2021 Commons Chamber

[John McDonnell (Hayes and Harlington) (Lab) [V]]

Harold Laski, professor at the London School of Economics and chair of the Labour party in the Attlee period, said that in this country, we will not see the arrival of fascism with some dictator strutting in his uniform, bedecked in medals. Instead, the risk to our freedom will come from the creeping, incremental erosion of our civil liberties, leading to harsh Conservative authoritarianism. This Bill is a step in that direction. It is a step in undermining the constitutional safeguards of our liberty, secured over generations of protest and struggle. It threatens the very basic human freedom of assembly and association.

The Bill is aimed not just at the traditional progressive campaigners and trade unions; its target is the young—the younger generation that rejects the racism, sexism and misogyny that permeate our society and understands that its future is being placed at risk by the existential threat of climate change. Through their participation in mobilisations such as Black Lives Matter and Extinction Rebellion, the young have discovered their power; so, too, have this Government recognised the power of the young. The Bill is about ensuring that the younger generation are prevented from exercising that power.

I caution the Government to learn from the past. For centuries, our history has shown that when the Governments have imposed legislation that strikes at the heart of our liberties, our people simply refuse to accept and comply with unjust laws. If a Government persist, division and conflict are always the result, so I warn the Government that they provoke our younger people at their peril.

If anything defines the disgraceful depths to which this Government have sunk, it is the attack in this Bill on the last group in our society against whom it appears that for some it is still acceptable to openly racially discriminate: the Traveller community. Under this Bill, they will suffer the threat of not only action by the police but even the loss of the homes in which they live. I urge colleagues to wake up to the threat of this Bill, and to vote against and defeat it at every stage of its passage. That is what I commit to doing.