Criminal Justice and Courts Bill

Lord Lloyd of Berwick Excerpts

Monday 30th June 2014 Lords Chamber

[Lord Lloyd of Berwick (CB)]

My Lords, we have just listened to two very powerful speeches, which have covered the whole scope of the Bill. For my part, I shall concentrate only on Part 1, in which there is much to criticise in detail when we come to Committee. Taken as a whole, I find Part 1 profoundly depressing. We have 28 new clauses full of new offences and increased penalties at a time when, as the noble Lord, Lord Marks, demonstrated, and as we all agree, crime is actually falling and the prisons are full.

When I became a judge, not so very long ago, there was a prison population of 35,000. It is now 85,350. How can such an increase be explained, let alone justified? Mr Grayling says that there is no crisis because he has 1,000 spare prison places. However, the story from individual prisons is very different: Wandsworth is currently operating at 169% of capacity while Durham, which was built for just under 600 prisoners, currently accommodates 940. Mr Grayling says that there has been an unexpected increase in the demand for places and has suggested that one reason might be the number of recent convictions for historic sex offences. I would like to suggest a much more likely reason. Home Secretaries, as we have seen, have an itch for taking a hand in sentencing—and now, to Home Secretaries of the past, we have to add the Lord Chancellor.

I will give an example of what I know from my own experience. In the old days, the tariff in murder cases was fixed, or I should say recommended, by the trial judge, and the Lord Chief Justice would add his comments. Sometimes, the Home Secretary would accept the judicial recommendation, but in most cases he did not, for no very good reason that I could see. Then came the case of Anderson in the House of Lords, in which it was held that sentencing was the province of judges and not the Home Secretary, who must therefore play no part in fixing the tariff.

Mr Blunkett, who was then Home Secretary, had a riposte: Schedule 21 to the 2003 Act. Under that schedule, an elaborate framework has been created within which judges are now required to operate. There are four different starting points, and lists of aggravating and mitigating factors which sometimes, as we have seen recently, conflict. I have never understood the reason for Schedule 21. But I have no doubt at all as to its effect. It has increased the tariff in murder cases from 13 years, as it was, to 17.5 years, as it is now. We now have more persons serving life sentences than in the rest of Europe put together—about which I hope we will be hearing later from my noble friend Lady Stern.

However, none of this seems to worry Mr Grayling—like Gallio, he cares for none of these things. As he said recently, he makes no apology for the fact that, under this Government, there are more people going to prison than ever before, and for longer sentences. How very different he is in that respect from his predecessor, Kenneth Clarke. It was one of Kenneth Clarke’s objectives as Lord Chancellor to reduce the prison population. One of the ways he set about doing that was to repeal Section 225 of the 2003 Act. That was the section that enabled—and in many cases required—judges to pass indeterminate sentences for the protection of the public instead of determinate sentences. That was another new idea of Mr Blunkett and I would like to say a little more about it.

The original idea was that it would apply to a small group of serious offenders—perhaps a few hundred a year at most—for whom an ordinary determinate sentence would not provide sufficient safety for the public. That was how it was described by the noble and learned Baroness, Lady Scotland, when she introduced the Bill into this House. However, the result was very different. Far more prisoners were given indeterminate sentences than was ever anticipated, many with tariffs of as little as two years or less—some as little as six months.

The Government were completely unprepared. Very few such prisoners were being released as they could not get before the Parole Board and, in the test case of James and others, the European Court of Human Rights held that in these circumstances their detention was arbitrary and therefore unlawful. In 2007, Section 225 was amended so as to stem the flow of new inmates, but it was too little and too late. By 2012 there was no alternative but to repeal Section 225 altogether. Kenneth Clarke described it as having been a stain on the system, and so it was.

However, in the mean time, a huge backlog had built up. Currently there are 5,500 prisoners serving IPP sentences of a kind that could not now be lawfully imposed. Of these, 3,500 have already passed their tariff with little hope of early release. The present rate of release is running at about 400 a year. At that rate it will be nine years before the backlog is cleared. That is the position in general, but I am particularly concerned about a group of 773 prisoners who were given tariffs of two years or less in 2007 before Section 225 was amended. If they had been sentenced in 2008 instead of 2007, they could not have been given IPP sentences, so they would by now be out of prison: indeed, they would have been out of prison long ago. Yet they are still in prison.

Some 275 of them are five years or more over tariff; some as long as eight years over tariff, including 37 where the tariff was less than six months. Can nothing be done for these people to speed up their release? The answer the Minister should give is, “Yes, something can be done”. When Parliament repealed Section 225 in 2012, it was well aware of the backlog that had been created and of the need to so something about it. So Kenneth Clarke introduced a new clause giving the Lord Chancellor the power to alter the release test in the case of IPP prisoners. It need no longer be the same for other lifers, as it had been and as indeed it still is; nor need it even depend on an assessment of risk.

This new power is contained in Section 128 of the 2012 Act. It is obvious that it was included in the Act for one purpose only: to speed up the release. I have no reason to doubt that if Kenneth Clarke were still Lord Chancellor, he would have exercised the power contained in that provision. He had already described the existing state of affairs as unfair and unjust, for the very reasons that I have mentioned.

Some time—very soon—after Mr Grayling became Lord Chancellor, I asked him whether he intended to exercise the powers that he had been given by Parliament to deal with the backlog. He said that he had no such intention. The only reason he has ever given is that it would not be right or appropriate to interfere with the sentences lawfully imposed by the judges. However, in the case of the 773 prisoners given sentences of two years or less, that reason will not hold. In their case, the judges had no discretion one way or the other; they were bound to assume dangerousness until Section 225 was amended in 2007.

Mr Grayling must surely find some better reason for not exercising the power he has been given in relation to those prisoners. Nobody is suggesting that he should release prisoners who are “dangerous” in the ordinary sense of the word, but he should find some way of dealing with those with tariffs of two years or less under the powers which he has been given for that very purpose. With tariffs as short as that, they cannot have been among the most serious offenders.

In the case of 37 prisoners with tariffs of six months or less, we now know that 24 of them have a low risk of reoffending—yet they are still in prison. The matter cannot be put better than it was in a leader in the Times on 25 March. It made this point:

“The scandal Mr Grayling should address is that a process set in law”,

should be “followed in life”. I hope that Mr Grayling will do just that—not just, as the Times said, to save some £40,000 a year for every prisoner released or to reduce overcrowding but to restore to these prisoners some sense that they are being fairly and justly treated, not only with regard to their victims but as between themselves. It would thus remove what Kenneth Clarke rightly described as a stain in the system that still remains.