Judicial Review and Courts Bill

Lord Brown of Eaton-under-Heywood Excerpts

2nd reading
Monday 7th February 2022 Lords Chamber

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

My Lords, I do not and never did take the view expressed by some that the Government in their stated aim of rebalancing the relationship between the Executive and judiciary were intent on a power grab and on destroying the courts’ supervisory jurisdiction. The Faulks review was a model inquiry producing a model report. Frankly, I had little problem with Robert Buckland, the then Lord Chancellor’s response to it, even though I recognised that in certain respects it went rather further than the Faulks recommendations.

In short, I do not, for the most part share the concerns expressed by the noble Lord, Lord Ponsonby, on behalf of the Labour Party—rather, I support Part 1 of the Bill. It introduces in Clause 1 flexibility and greater discretion in the courts’ supervisory jurisdiction and, at last, will get rid of the troublesome doctrine that a flawed decision, if successfully impugned is null and void to be regarded therefore merely as “a purported decision”. That explains the use of that term, both in this clause and again in Clause 3 of the Dissolution Bill. In short, Clause 1 would give the quietus to what has been called the “metaphysic of nullity”—the constraining theory that any legal error makes a decision or instrument not merely voidable but void ab initio.

I make three brief points. First, there are those who object to the presumption, the word “must” in new subsection (9). The requirement for the court to suspend, or on the rare occasions it does so, make prospective only a quashing order, if that would on appropriate conditions give “adequate redress” unless there is “good reason not to do so”. Such good reason, I suggest in answer to the noble Lord, Lord Thomas, would exist if, for example, an order or instrument was made in bad faith, if the maker recognised that it could well be unlawful. Personally, I am agnostic about new subsection (9), but it seems no more objectionable than Section 8(3) of the Human Rights Act, which I will not read out. Anybody interested can look it up.

Secondly, by being encouraged to make suspended orders, it seems to me the courts would be the readier to find flaws in decisions impugned—this point was hinted at by the noble Lord, Lord Anderson—if in doing so they would then avoid the administrative chaos that can otherwise all too easily flow from annulling ab initio various decisions or instruments, regulations or by-laws.

Finally on Clause 1, as was pointed out in the Faulks report, in paragraph 3.64, the power to make suspended orders,

“would be especially useful in high-profile constitutional cases, where it would be desirable for the courts explicitly to acknowledge the supremacy of Parliament in resolving disagreements”.

I will not read the rest. It is neither healthy nor helpful to have in some quarters potential concern about what is being called “judicial over-reach” or “supremacism”. Clause 1 would go some way to alleviate that.

Turning more briefly to Clause 2, I should mention that I was one of the seven justices in Cart, which is now being over-turned. One knows what we did. In my judgment, as quoted by the Minister on opening, I pointed out that the limitation of the review we were permitting in that case was to conserve judicial resources. Even that formula, however, proved altogether too wasteful of judicial resources. For that reason, it is now best to narrow it down still further to the formula to be found in Clause 2(4).

Of course, Clause 2 is an ouster clause, but not, I suggest, an intended model for future clauses wherever there is legislation. It admirably illustrates that such clauses can in various circumstances be both entirely justified and desirable and, secondly, that they can be limited in their effect, tailormade to the context, as I suggest is Clause 2 here and, in a radically different context, Clause 3 of the Dissolution Bill we come to on Wednesday.

In conclusion, I support Part 1 on the basis that each clause strengthens rather than weakens the judiciary: Clause 1 by increasing powers and discretion; Clause 2 by conserving resources.

Police, Crime, Sentencing and Courts Bill

Lord Brown of Eaton-under-Heywood Excerpts

3rd reading
Tuesday 25th January 2022 Lords Chamber

[Lord Grocott (Lab)]

My Lords, I came cold to this debate, as it were, to hear what was to be said. I am certainly not an expert on the law, but I have had quite a bit to do with the Companion over the years, and I remember vividly a time when it was quite routine, on Third Reading, to present amendments that clearly should have been debated earlier. The authorities of the House at the time—and I may have been part of that—decided that we needed to tighten up the circumstances in which amendments could be laid at Third Reading. But—and this is a huge “but”, which my noble and learned friend Lord Falconer has already dealt with—it was always assumed that there would be flexibility in the decision about the admissibility of amendments at Third Reading.

There were occasions—I would have come armed with them if I had anticipated this debate—when the usual channels would get together, during or after Report, and say, “Look we really can’t resolve this now, we need to put down an amendment at Third Reading”. Had it been challenged by either Front Bench or by anyone among the usual channels, that would have been resolved at that point. But nearly always, there was such a common-sense argument about, “Well, we’ll let this one go at Third Reading, the air needs to be cleared with this at Third Reading”, that it was agreed among the usual channels; it was never seen as completely Stalinist rule. Indeed, as my noble and learned friend has said, there is flexibility actually written into it. But I can say with confidence that this issue has been addressed in the past. It seems to me overwhelmingly the case, in the way my noble and learned friend described it, that quite clearly it should come within the auspices of the Companion, with the agreement of the usual channels, to be able to debate this hugely important issue at Third Reading.

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

My Lords, I deeply regret the deformity to our law which results from the Harper amendment, made, as your Lordships know, for Third Reading. A mandatory life sentence for murder is one thing—indeed, one must recognise that, although entirely understandable, even that is questionable—but a mandatory life sentence for the manslaughter cases now spotlighted by the Harper amendment is really quite another.

I will content myself today by saying that not only may it cause a great injustice but it may be that, if one were a defence counsel in one of these cases, one would positively welcome Harper’s law and emphasise to the jury the awesome consequences of a conviction—consequences from which juries might well shrink. If this matter now goes back unamended to the House of Commons, I suggest that the other place may wish to reflect on those consequences. To pass as potentially unjust a law as this may prove to be counterproductive and a disaster for long-term justice.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, following my commitment and undertaking to the House on Report, I am pleased to be able to bring this package of amendments relating to imprisonment for public protection—IPP—before the House this afternoon. I thank sincerely the noble Lord, Lord Blunkett—and I understand why he is unable to be in his place today—the noble and learned Lords, Lord Brown of Eaton-under-Heywood and Lord Judge, and my noble friend Lord Moylan for their commitment to this cause and continued engagement with me on this matter. We have had a series of meetings and calls, which have been invaluable. They offered me their considerable wisdom and experience both of this subject and of this House in order to get this amendment—if I may put it this way—across the table and over the line.

It was made very clear at all stages in this House that there was enormous strength of feeling that some beneficial change for IPP offenders was both right and necessary. I am pleased that we have cross-party support for this sensible, proportionate and effective change that will provide such benefit but at no risk to public protection.

I committed on Report to bringing forward an amendment which puts the Secretary of State’s policy of automatic referral of applications to terminate the IPP licence on to a statutory footing. This would enable all eligible IPP offenders to be referred to the Parole Board for consideration for licence termination at the appropriate time. The new clause that I have tabled delivers on this commitment.

The position is that Section 31A of the Crime (Sentences) Act 1997 sets out how IPP offenders are currently able to apply for licence termination. Once the qualifying period of 10 years has elapsed—that is, 10 years from the offender’s first release by the Parole Board—this section provides that offenders can apply to the Parole Board to be considered for licence termination. In practice, the Secretary of State has made it policy to do this on the offender’s behalf, but first had to obtain consent from the offender.

The principal change in the first of the amendments in my name is in new subsection (2), which amends the wording of Section 31A so that the Secretary of State will be legally required to automatically refer the offender where the 10-year qualifying period has expired. Where the offender has previously been referred to the Parole Board for licence termination, they will automatically be referred if 12 months have elapsed since the previous reference. That removes the need for the offender to give permission for the Secretary of State to make applications on their behalf, and will enable the IPP licence to be brought to a definitive end for more offenders.

The clause also adds a new subsection to Section 31A which deals with offenders who are in custody following recall under the IPP licence. When an offender is recalled to prison, their licence is automatically revoked, so they cannot have their licence terminated while they are in prison following recall because they are no longer on licence. But, in these cases, the Secretary of State will still be required to refer the offenders to the Parole Board on the point of eligibility and every 12 months thereafter. The Parole Board will then determine whether the licence should remain in force following any subsequent release decision. It will be up to the Parole Board whether to terminate the licence of an IPP offender in custody—but these provisions are specifically intended to ensure that all eligible IPP offenders, who are either on licence or have been recalled and had their licence revoked, have the opportunity to have their licence terminated.

The remaining subsections are technical, transitional and clarificatory to ensure that the clause works correctly. But I make it absolutely clear from the Dispatch Box that time spent in custody on recall does not affect the running of the 10-year qualifying period. There are two further amendments in my name, both of which are consequential. I am grateful to the noble and learned Lord, Lord Judge, for joining me in them. The second amendment ensures that this clause operates correctly with other subsections that might prevent a referral, and the third sets the commencement date at two months following Royal Assent.

Taken as a package, these amendments appropriately balance the need to protect the public with ensuring that IPP offenders who are assessed by the Parole Board as no longer posing a risk to the public are given every opportunity to have their IPP licence, and the IPP sentence as a whole, terminated. So, with renewed thanks to those noble and learned Lords who joined me, particularly in supporting the first amendment, for their sustained engagement, I beg to move Amendment 3.

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

My Lords, my noble and learned friend Lord Judge has asked that I go next. I have indeed added my name to the first substantive government amendment, but I indicated that I would—and I do—make it plain that I do so without any great enthusiasm. Rather, it is on the basis that one must be grateful for small mercies—here, alas, I put the emphasis on the “small”.

I am grateful to the Minister for doing what he could for us, and, so far as it goes, I welcome the small change brought about by the amendment. But, in my respectful view, it does not go remotely far enough. It is difficult to overemphasise how small a concession this is in relation to the overall problem of the remaining IPP prisoners. Even in respect of the recall prisoners, we had hoped that the maximum term for which a licence should remain in force would be reduced from 10 years to five.

Beyond that, I fervently hoped to do something for the 1,700-odd cohort of IPP prisoners who have never been released and who remain incarcerated 10 years after this whole sentencing regime was abolished by LASPO in 2012. Many of the 1,700 are substantially more than 10 years beyond their tariff term—but there it is. We now have to—and we do—put our faith in the House of Commons Justice Committee, which has taken evidence and listened to many, including me, and is shortly to report on the whole question of this remaining regime. One hopes that it will do something to meet this grave, continuing and, indeed, growing injustice. In the meantime, I make it plain that I support this most modest of amendments.

Police, Crime, Sentencing and Courts Bill

Lord Brown of Eaton-under-Heywood Excerpts

Report stage
Wednesday 12th January 2022 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I also support the amendment. The noble Lord, Lord Marks of Henley-on-Thames, has given us an opportunity to make things a lot better. During that quite irritable debate two days ago—I was irritable, anyway, and I think people got irritable with me—on this policing Bill, it struck me that we just should not have as many women in prison. Some of the things that women go to prison for are ridiculous. It costs a lot of money; it disrupts lives, especially for the women, their children and their support networks; and there is an opportunity cost when compared to the opportunities that we should be providing via rehabilitation and reintegration. Women go to prison for things like not paying their TV licence or their council tax, and that really should not happen. It is hugely disruptive, the cost of doing so exceeds the unpaid debt many times over, and lives are ruined.

For the vast majority of women in the criminal justice system, solutions within the community are much more appropriate. Community sentences could be designed to take account of women’s particular vulnerabilities and their domestic and childcare commitments. Existing women’s prisons should be replaced by suitable, geographically-dispersed, small multifunctional custodial centres. More supported accommodation should be provided for women on release in order to break the cycle of offending and custody. Prisoners should have improved access to meaningful activities, particularly real work, education and artistic and creative facilities. And, of course, all prisoners should be able to attain levels of literacy sufficient to allow them to function effectively in modern society.

That all seems so obvious, but it does not happen at the moment because this Government are obsessed with being “tough on crime”. What does that mean? If it means sending more and more people to prison then it is a very disruptive and damaging way of handling the problem of crime. A royal commission seems an incredibly sensible way forward just to rethink the way in which we handle prisons, prisoners, crime and, in particular, women in prison who really ought not to be there.

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

My Lords, I too support this proposal. The objectives set out in each of the paragraphs (a) to (h) of proposed subsection (2) of the amendment are plainly and urgently needed. It should not be necessary to establish a royal commission to focus on, pursue and achieve these objectives, but plainly it is necessary. These deficiencies have been identified, recognised and discussed for years but, as for getting anywhere in terms of achievement—on the contrary.

The main parties on both sides of the House, not least this Government, seem ever more intent on winning the law and order vote. Sentences are being increased; minimum and mandatory terms are being imposed. We now need the impetus, the force, of no less than a royal commission to start to recognise the intense problems of our whole penal system and to start to set the matter right.

[Lord Macdonald of River Glaven (CB)]

My Lords, I do not regard the United Kingdom’s place at the top of the incarceration league table for western European countries as a badge of honour. It seems to me that this fact in itself calls for a broad strategic view of how sentencing is working in this country and why it is that we send so many more people to prison than other countries do.

One of the issues seems to be that criminal justice, particularly sentencing, has become a political football. A sort of auction has been going on between the main political parties over the last 20 years or so to discover who can present themselves as the toughest on this issue. I do not mean to minimise the effect of crime on victims or on society as a whole, but short sentences in particular are surely counterproductive. The best way to school a young man in crime and anti-social behaviour is to send him to prison for three or six months.

It seems to me that one of the great possible achievements of a royal commission would be to take some of the political sting out of this issue and to inject some rationality and even some science into it. I strongly support the amendment.

--- Later in debate ---

[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.

Police, Crime, Sentencing and Courts Bill

Lord Brown of Eaton-under-Heywood Excerpts

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

Everyone who has provided evidence has shown that the review and the guidance needed for the probation service is desperate. It is not a trimming of the sail—the term used by one of the officials yesterday—but a lifeboat, because these individuals deserve justice. The Minister in Committee in the House of Commons said that this was unjust. I have accepted that it is totally unjust and has worked out in a totally unacceptable way. The Government acknowledging that and taking steps forward will at least give us momentum and start the ball rolling to put this wrong right. I hope that when we hear from the Minister in a few minutes, we can be assured that, as tentative as the steps may be, we are at last making some progress.

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

My Lords, in speaking only to Amendment 80, I mention that I also support Amendment 81 in this group. Amendment 80 is the one amendment in this entire Bill that could reduce—if only by a tiny fraction—the prison population, which most of this Bill is, of course, calculated to enlarge. More directly and importantly, it would go some small way towards ending a long-standing and ever-growing injustice, now recognised by many as the greatest single stain on our criminal justice system with regard to the cohort of IPP prisoners.

Amendment 80 applies only to some of the 1,700 or so IPP prisoners still in prison after the abolition of the whole discredited scheme nine years ago by LASPO. The amendment applies just to two categories within the 1,700: those who have now served more than 10 years beyond the tariff sentence—in other words, more than 10 years over the proper punishment for their offending —and those who have now served more than the statutory maximum determinate sentence prescribed by law for their offence. For these people this is manifestly preventive detention—frankly, it is internment by another name.

Your Lordships may like to know that, of the 570 IPP prisoners who have served more than 10 years beyond tariff, 200 had tariffs of less than two years and another 326 had two-to-four-year tariffs, so only very few—44—had more than four years. Your Lordships may also like to know that the UK has more indeterminate sentence prisoners, lifers and those on IPP, than any other of the 47 countries in the Council of Europe including Turkey and Russia.

Unlike life sentence prisoners, who are serving life for the gravity of the crimes they have actually committed, IPP prisoners are there simply for what they might do in future—what, in short, they cannot prove to the satisfaction of the Parole Board that they would not do on release. The uncertainty, hopelessness, utter despair and sheer misery of the prisoners and their families need no emphasis. It is small wonder that there have been many suicides and that the rates of self-harm among these prisoners are more than twice that of life sentence prisoners.

In urging this amendment, I stress the essential modesty of the proposal. It is purely a reversal of the burden of proof. It still leaves the public protected against those who can be shown to be dangerous. If the prison authority responsible for their continued incarceration, with all the various reports from prison staff, medics and so forth, can still show that the prisoner would pose an unacceptable risk on release, then they will not get out. The amendment goes nothing like as far as many would wish and think appropriate.

When the noble and learned Lord, Lord Clarke of Nottingham, who, alas, is not in his place, abolished this scheme in 2012, I understand he wanted to abolish it retrospectively as well as prospectively but was not permitted to do so. Michael Gove, after ceasing to be Lord Chancellor. recognised the intrinsic injustice in the Longford lecture. Matthew Parris recently wrote in the Times how the Government need the guts to reassess these cases.

I end, as I did in Committee, with this question: suppose one of these IPP prisoners with a tariff of a one-year sentence representing his criminality, is more than 10 years beyond that and still unable to discharge the burden of showing the Parole Board that he can be safely released without risk. What should happen? Should he remain incarcerated for another five, 10 or 20 years, or do we as a nation accept lifelong internment for this group? I hope not.

--- Later in debate ---

[Lord Blunkett (Lab)]

My Lords, I am not sure this is protocol, but it might help progress if I indicate to the House that, in discussions with the Minister, we had come to an understanding that we were taking steps forward in a way that would start to unlock this problem. In what he has just read out, the Minister has fulfilled what he agreed with me, and I trust him. On that basis, I recommend to colleagues that we accept the offer of the Third Reading amendment and the commitments that have been made on both procedure and recall, and we move forward on that basis this evening.

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

My Lords, I cannot pretend to be wholly content, let alone happy, with what the Minister has been allowed to say today. It falls dramatically short of providing any sort of an answer to the final question I asked earlier: are we to keep these post-tariff detainees in effect endlessly and for life? It is surely no answer to my point to say that reversing the burden of proof is unlikely to make any difference. That is even less a reason to object to this amendment.

I repeat that I am very far from happy but, as the noble Lord, Lord Blunkett, said, we have at least got some assurances, for the first time, that Ministers will look again at the plight of these IPPs and make some improvements at least to the recall regime—hopefully the first step in a re-evaluation of the entire remaining IPP problem. The other consideration that now weighs on me is the point that has been made that the Justice Select Committee in the other place is now deep into its full-scale IPP inquiry and its eventual report must surely inform the Government’s approach. In the meantime, alas, it provides something of an excuse for the Government to do little of great note.

It is clear that there is huge support for Amendment 80 around the House. What is ultimately needed is political will. For my part, let us hope that the Select Committee will call for proper reform and for the political will to deal with it, and that that is now shown. Meanwhile, I confess that I am deeply disappointed, as will be the IPP prisoners and their families. As the noble Lord, Lord Blunkett, points out, I have no alternative but to not press my Amendment 80.

[Lord Blunkett (Lab)]

On the basis of the Minister’s statement, and not wanting a pyrrhic victory, which would end in defeat and even greater hopelessness for those we seek to help, I beg leave to withdraw Amendment 79.

Police, Crime, Sentencing and Courts Bill

Lord Brown of Eaton-under-Heywood Excerpts

Lords Hansard - part one & Committee stage
Wednesday 17th November 2021 Lords Chamber

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

My Lords, I strongly support this amendment, as I have supported the PMBs on this from the noble Lord, Lord Dholakia, over recent years. The reasons for raising the age by the—goodness knows— modest enough margin of two years, from 10 to 12, are cumulative and compelling. If there is any objection to this amendment, it is that it does not go far enough, but I do not make that objection.

I have three reasons for supporting this. First, a 10 year-old’s mental capacities are not comparable to those of an older adolescent or adult. The noble and learned Baroness, Lady Butler-Sloss, has made these points about maturation, and I will not repeat them.

Secondly, criminalising these youngsters while they are still developing their identities and character and growing socially and emotionally is deeply damaging to their self-esteem and future prospects. Brand a child of 10 or 11 a criminal and that is how he will come to see and identify himself, and so he will behave in future. The subsequent criminal records of those who have been thus branded bear this out. Their records attest to it.

Thirdly, whatever their wrongdoing and however grave—to call it criminal is of course to beg the question—they will be dealt with in the same basic way whether they are convicted under the criminal justice system or dealt with through corrective welfare processes. If they need to be detained securely, they will be. The necessary measures can be imposed whichever route is taken, whether they are prosecuted as criminals or treated as however gravely miscreant children requiring correction. The public will not suffer if in future they are recognised as children who have done something dreadfully wrong rather than wicked criminals. On the contrary, the public will benefit. These children are more likely to lead law-abiding lives in future if we change our system at last.

It is high time to banish the long shadow of the tragic Bulger case—it has already been mentioned today—that, alas, is still cast and obscures the realities and common sense on this issue.

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I also rise to support Amendment 220. When I was chairman of the Commission on Justice in Wales, we looked at this issue and had extensive evidence, including from the Children’s Commissioner for Wales. Without hesitation, we recommended that, were it free to do so, Wales should raise the age of criminal responsibility to 12, consistent with United Nations obligations it has untaken.

I agree completely with what has been said about the profound changes in the understanding of mental capacity that have taken place over the last 10 years in particular. I urge the Government not to delay any further a change to make our country no longer a laggard on this issue but one that is at least catching up. There are problems, such as knife crime, but the age of criminal responsibility is not the way to deal with them.

Police, Crime, Sentencing and Courts Bill

Lord Brown of Eaton-under-Heywood Excerpts

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

[Lord Falconer of Thoroton (Lab)]

I commend the speech of my noble friend Lord Blunkett. I agree with every single word of it. I am as culpable as he is in relation to this. I was a junior Minister in the Home Office at the time, and the Lord Chancellor did not foresee the consequences of what the noble and learned Lord, Lord Brown, who I am glad to see in his place, described as

“the greatest single stain on our criminal justice system.”

Our purpose on these Benches is to participate in a coalition of people with a view to persuading the Government to make sensible changes to the regime to get rid of this injustice that the noble and learned Lord, Lord Brown, and my noble friend Lord Blunkett, have referred to. The amendments before the Committee today provide a number of sensible options, but we put them forward, or support them as part of that coalition, with a view to reaching agreement with the Government to do something about them.

I may try the patience of the Committee too much, but I will speak to the amendment to which my name is put, and then I will speak again indicating the Labour Party’s position on the whole range of amendments. The amendments I speak to at the moment, therefore, are Amendments 208A and 208C, which deal with the position in relation to those IPP prisoners who have been released, and what the Government should be doing about them. I add my thanks to those of my noble friend Lord Blunkett to the Prison Reform Trust, which has provided an incredibly valuable briefing to the whole House. I also thank the Howard League for Penal Reform, which has done the same; Frances Crook, who has, over a very long period, provided real guidance to policymakers on these issues; and UNGRIPP, a group of friends and prisoners who have suffered as a result of this regime.

I turn now to the probing Amendments 208A and 208C, which are in my name and that of my noble friend Lord Blunkett. He gave the figures. The basic proposition is that to reduce reoffending, energy and resources need to be devoted to ensuring that IPP prisoners who secure their release are able to live successful lives thereafter, avoiding recall to prison. That is what is best for society and for them. Without this, the current incidence of recall will soon, as my noble friend said, lead to a situation in which the number of people serving the IPP sentence may start to grow rather than decrease. From 30 September 2015 to 30 June 2021, the number of never-released IPP prisoners fell by 61%, from 4,431 to 1,722.

However, at the latest date for which I have figures, which is June 2021, there were 1,332 people back in prison having previously been released—more than double the number of five years ago. Recalled IPP prisoners who were re-released during 2020 have spent an average of 20 further months in prison before re-release. The hopelessness and despair that engenders is incredibly effectively described in the Prison Reform Trust’s report No Life, No Freedom, No Future. Its findings are based on data provided from Her Majesty’s Prison and Probation Service on recalls and re-releases and on interviews with 31 recalled IPP prisoners. A briefing from the Prison Reform Trust said:

“The report found that IPP prisoners’ life chances and mental health were both fundamentally damaged by the uniquely unjust sentence they are serving. Arrangements for their support in the community after release did not match the depth of the challenge they faced in rebuilding their lives outside prison. Risk management plans drawn up before release all too often turned out to be unrealistic or inadequately supported after release, leading to recall sometimes within a few weeks of leaving prison, and for some people on multiple occasions. The process of recall also generated strong perceptions of unfairness.


At its worst, the report found that the system … recalled people to indefinite custody”


for what appeared comparatively trivial matters,

“defined needs (e.g. mental health) as risk factors … ignored the impact of the unfairness of the sentence on wellbeing and behaviour … could not provide the necessary support; and … provided no purpose to time back in custody or a plan for re-release.”

Not all IPP recalled prisoners endured that, but it was common enough to say that the system needed looking at overall. As I indicated, many IPP interviewees suggested that the recall decisions were taken too lightly. At most, 23 of the 31 participants had not been convicted of a subsequent offence when they were recalled.

What to do about it? To prevent the current situation continuing—and I am dealing only with people being recalled—there are basically eight things to do. First, the process for licence review should be automated, and the qualifying period reduced from 10 years to five. That is in line with Amendment 208D. Secondly, the test for recall should be changed. It should be that there is imminent risk of the person committing an offence causing serious harm, and that that risk cannot be managed in the community. For other things, such as not staying at the address named in the conditions, other measures should be thought about—for example, adjusted reporting requirements, use of electronic tags and curfews. Thirdly, where a person has been charged with a further offence, the normal criminal justice processes should apply, with a court considering whether remand in custody is appropriate for the new alleged offence. Fourthly, if a person is convicted of a further offence, the court should decide what happens to that person, not an official. Fifthly, if a person is convicted of a further offence and the court decides to recall them under the provisions of their IPP sentence, the Parole Board should be required to consider release alongside any considerations of discretionary release that attach to the new sentence—for example, an extended determinate sentence. Sixthly, IPP prisoners who have been recalled, not having received a new custodial sentence and not being re-released on the papers by the Parole Board, should have the right to an oral hearing if they so wish. Seventhly, if the Parole Board panel upholds the decision to recall, it must set a fixed date for a further review. Eighthly, all recalled prisoners should be entitled to annual reviews of their continued detention at an oral Parole Board hearing with free legal representation.

We, on this side of the Committee, are very much aware that proper measures need to be in place to provide public protection, but that has to be balanced against a system where once people on IPP are released, they are not recalled except when something significant has happened and there is proper and serious support. I commend these amendments to the Committee.

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

My Lords, first, I commend, as others have, all those who have, in recent times, been building the road on which we are set today—none more so than the noble Lord, Lord Blunkett. For many years, I have urged, with no success thus far but with great hopes today, the reform of what remains of the IPP sentencing regime. It is in no way hyperbole to describe it, as I already have, as the greatest single stain on the justice system. Indeed, it is a deeper, growing stain because of the situation with the recalls.

Police, Crime, Sentencing and Courts Bill

Lord Brown of Eaton-under-Heywood Excerpts

Lords Hansard - part one & Committee stage
Monday 8th November 2021 Lords Chamber

[Baroness Randerson (LD)]

My Lords, I echo the sentiments of the noble Lord, Lord Berkeley, in thanking the coalition of organisations that have briefed us on Part 5, because they are experts in the field. The short debate we have had reveals the crying need for a comprehensive review of driving sentences. The Government’s push is towards increasing penalties—longer prison sentences—and each of these amendments tackles an issue that needs attention that the Bill is really not going to provide.

The four amendments in this group have little in common with each other. I agree with the local and learned Lord, Lord Judge, on the difference between different offences which could have a very similar outcome. There is a world of difference between causing death while drink-driving or drug-driving, which is a conscious decision that you make, and causing injury or maybe death by carelessly opening your car door: that is at the other extreme. By chance, I saw such an incident last week. I saw a motorist drive up carefully and park, then get distracted by their passenger who had left something behind and who leapt back into the car to retrieve it at the last moment. The driver opened the car door in the path of a cyclist who was not showing lights and it was at night. Now, no great injury was caused in that case, but it could have been. I was standing there waiting to cross the road and I have absolutely no doubt that it was nothing other than distraction and carelessness from a driver who was driving carefully. There is a general push in the Bill towards stiffer sentencing, whereas we should be looking at more effective and appropriate sentencing for drivers, the overwhelming majority of whom are not of the criminal classes and do not have a criminal intent when they drive.

We also need to be designing our roads in a way that makes them much safer. The number of amendments tabled to Part 5 relating to road traffic reinforces my view, and that expressed here today, that we need a thorough review of the laws and penalties that govern driving. I shall say more about this later on my own amendment on this issue. Finally, I refer to the comments of the noble Lord, Lord Russell, who drew attention to the inconsistency of the current legislation. Add to that the fact that it is wildly out of date and there really is a need for government action.

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

My Lords, I had proposed to speak specifically to my noble and learned friend Lord Hope’s amendments, which are in another group but, frankly, these amendments are all mixed up together and I am rather surprised that they are not grouped. I agree with everything that the noble and learned Lord, Lord Judge, said. What it surely comes to, first, is that it is a good idea to look at the astonishing way the law has developed over recent decades.

When I went to the Bar 60 years ago, basically there was dangerous driving and careless driving, as there has been ever since. As now, there were well-recognised meanings and levels within the process of administering this law, and the courts—the magistrates’ courts particularly—and the practitioners know about that. There was also the very rare and very grave offence of motor manslaughter—manslaughter in the context of motoring. That applies to gross negligence cases and is a common-law offence. There is no maximum sentence but life is available. Then, gradually, over the years, sentences became more draconian. A two-year prison sentence was made available for death by dangerous driving. Then, in 1988, 14 years—seven times the original sentence—became the stipulated maximum sentence for causing death by dangerous driving. Now, of course, it is proposed to go from 14 years to life. Is it really contemplated that, short of some quite extravagant case of manslaughter, anybody really ought properly to go to prison for more than 14 years?

Assisted Dying Bill [HL]

Lord Brown of Eaton-under-Heywood Excerpts

2nd reading
Friday 22nd October 2021 Lords Chamber

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

My Lords, it is an honour to follow all those who have taken part in this most distinguished debate; it is really the House at its best.

First, let us consider the backdrop to the debate today. Anyone, whether or not in the closing stages of their life, is perfectly at liberty to attempt or commit suicide. They can do so howsoever they choose—by taking pills, jumping under a bus or painfully starving themselves to death. The Bill applies only to those in the final stages of their lives, expected to die within the next six months, and those who have a voluntary, clear, informed and settled wish to die, but it necessarily invites comparison between two categories that satisfy that definition. First, those who are physically capable of ending their own lives do not need the Bill; they can proceed. Secondly—and it is to these the Bill is directed—there are those who are so totally disabled, so pitiable and with such a low quality of life, that they need help to achieve early death. It would be quite illogical to deny those in this second category the assistance they need, leaving them alone and utterly powerless, when they understandably want to accelerate death.

Moreover, the Bill would not only provide this necessary help but, as an added advantage, would afford those in this limited category safeguards to protect them against the suggested risk of their being wrongly influenced to end their lives—grasping relatives and simply feeling a burden on all. One needs to point out that these safeguards are available to no one else; no other putative suicide, no one else contemplating suicide, has any such protection. It would be paradoxical and remarkable to refuse those in this most pitiable category the help they need and, with it, the protections they alone would get.

In short, I argue that when in 1961, 60 years ago, suicide was accepted as a lawful right in the interests of dignity and so forth, it became illogical to deny those with the very lowest quality of life and the strongest justification for wanting to accelerate death the power to achieve it. I suggest that both reason and pity—compassion—demand that we finally pass this Bill.

Police, Crime, Sentencing and Courts Bill

Lord Brown of Eaton-under-Heywood Excerpts

Committee stage & Lords Hansard part one
Wednesday 20th October 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

I am extremely grateful for the opportunity to do that. As I am sure everybody recognises, that was not the point I was making. I appreciate that it was regarded as lame by some people, but the point that I sought to make was that the distinction and purpose of the amendment was to expand the definition from prison officers to other people working in prison. My point was that from the way in which it is drafted—and I appreciate that it could be redrafted—it could and would be read so broadly as to include prisoners who were doing jobs in prison. It was certainly not what I was saying to place prisoners doing jobs in prison with chaplains and others who are working in prison. I am grateful to the right reverend Prelate for giving me the opportunity to make that clear, if it was not already.

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

I seek one matter of clarification, although I should not need to. Is there no way, apart from raising the maximum sentence by legislation, by which government could bring to the attention of the prosecuting authorities, sentencing courts and so forth the aggravating features that cover all these amendments? There are the emergency workers in the first place, and the nauseating offence of potting, which I confess not to have heard of before, and assaults on prison officers. There are those who find themselves, in the ordinary course of their employment, exposed in these highly vulnerable circumstances to miscreance of an obvious character. Is there no governmental input to the Sentencing Council? Can the Government not influence those sorts of bodies to isolate the fact that these are manifestly aggravating circumstances, which should go to raise not only the likely sanction being imposed but the likelihood of prosecution?

[Lord Wolfson of Tredegar (Con)]

As the noble and learned Lord knows far better than I do, one has to distinguish between aggravating and mitigating factors and the likelihood of prosecution. With regard to the Sentencing Council, I am confident that it already has that point on board. The question before the Committee is that of maximum sentence rather than aggravating or mitigating factors. I have also said—and, I hope, explained—that there is clear guidance in place to make sure that, when these offences are committed, they are dealt with either through the courts or through prison adjudication.

Queen’s Speech

Lord Brown of Eaton-under-Heywood Excerpts

Tuesday 18th May 2021 Lords Chamber

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

My Lords, it is always good to follow my noble friend Lord Carlile, even though it does generally make me feel boringly understated. Before touching on judicial reviews, as I hope to have time to do, I want to say a little about the proposed penal legislation. I have time for only one or two headline points, really.

First, on the question of terrorist offenders, let me say this: I recognise that they pose particular problems. Unlike all other categories of offender, terrorists are driven ideologically; their very purpose in life is to commit murder and mayhem and on entering prison their sole wish is to be discharged so that they can resume those activities. They have absolutely no intention of being reformed or rehabilitated so their tendency is to feign reform, and we have seen an appalling illustration of that recently. In their case, therefore, life sentences and indeterminate sentences seem to be altogether more acceptable and logical than in the case of other offenders.

That said, like others, I say that the UK imposes far too many indeterminate and long sentences overall. We impose more indeterminate sentences than all the other countries of the Council of Europe put together. The most egregious of these, as I have said many times in this Chamber, are the IPP sentences. That scheme was abolished and discredited in 2012 and yet there are still nearly 2,000 people detained under it, almost every one of whom is years beyond their tariff terms, and ever larger numbers of those released are now being recalled. To those who have not read the Prison Reform Trust report No Life, No Freedom, No Future, recently published with a foreword by myself, I say please do so.

My last headline point on crime is to deplore, along with the noble Lord, Lord Carlile, and many others here, the Government’s almost invariable reaction to any public concern about some offence, which is to increase the statutory maximum. They often introduce a statutory minimum and then what follows is always inflation; the sentences and the prisons get ever more overcrowded, with all the problems that that creates. The result of all that is ever less opportunity for rehabilitation. In the longer term, these longer sentences will produce more crime, not less. What a crazy system that is.

I will say a word or two on the proposed rebalancing of the relationship between legislature, Executive and the judiciary. Although as a retired judge I am of course jealous of the judiciary’s role and independence, I take a rather less jaundiced view of the Government’s proposals following the Faulks report than some of your Lordships who spoke earlier in this debate and last Thursday. It seems somewhat absurd to regard the setting up of that review and the response to it as a power grab and revenge for Miller 2. Surely everybody accepts, as I certainly do, the two specific legislative proposals of the noble Lord, Lord Faulks: to reverse Cart—I am afraid I was one of the seven unanimously making that mistake, as shown by what has happened since—and to introduce suspended quashing orders, which are such a good idea because it is the inflexibility of judicial review that has proved a real problem over the years. The basic position has long been that if any impugned decision is found unlawful for whatever reason, then it is to be regarded as a nullity—nothing done under it has any effect. That has caused real problems.

I find nothing intrinsically objectionable in the sort of proposals that the Government are now contemplating in this consultation process, for things such as prospective-only overrulings, but that, alas, is for another day.