Criminal Justice Act 2003 (Suitability for Fixed Term Recall) Order 2025

Lord Thomas of Gresford Excerpts

Tuesday 1st July 2025 Grand Committee

This draft instrument is necessary to avoid an imminent capacity crisis, freeing enough prison places, as safely as possible, to ensure that the criminal justice system can continue to operate effectively until the implementation of longer-term reforms.

[Lord Thomas of Gresford (LD)]

My Lords, I am grateful to the Minister for outlining this SI. Both the Prison Service and the Probation Service are in a mess. There is no point in wasting time apportioning blame. My family motto, ar bwy mae’r bai—who can we blame? —is used far too much in modern situations.

The criminal justice system is out of kilter. There are not enough judges. There is no money to fund the number of sitting days for which the Lord Chief Justice has called. There are not enough prosecutors to man the courts that do sit and it is no longer profitable for barristers to appear for the defence. The simple consequence is that there are 17,000 remand prisoners sitting idly in cells awaiting trial. That is nearly 20% of the prison population. Compare that to the 1,300 new prison places that this measure envisages.

The next problem is the length of sentences. There is no God-given standard for the amount of time a person should spend in prison for an offence. An eye for an eye is about as far as the Bible ever took us, along with a lot about forgiveness and redemption. Henry VIII made himself head of the Church, but 72,000 people were executed in his time, 75% of them for theft. In Elizabethan times, the death penalty was imposed for theft of more than a shilling. There were no problems of an excessive prison population at that time, but neither did it solve the crime problem.

When I was in mid-flow in my practice in the 1980s, sentences were probably a half to two-thirds of what they are currently, but political competition created a demand for longer sentences. Which party could be tougher on crime? They were fully aided by the media in this, and public pressure to increase sentences was the result. I discussed this with the late Lord Judge, when he was Lord Chief Justice. The gist of his reply was that you must expect the judiciary to react to and follow what the public want. The recent battle between the Lord Chancellor and the Sentencing Council was deeply depressing; they should really be on the same side.

Fuelling the demand for longer sentences is a perception that the country is going to pot, and that crime is more and more rampant. But, if you look at the statistics, you get a different picture. In 1982, there were 620 homicides. It grows to just over 1,000 at the beginning of this millennium, after which there was a decline. In the year ending last December, the number reduced to 535 homicides, as recorded by the police.

By way of comparison, I have some knowledge of Trinidad where I visited death row. In the early 2000s, it held about 150 inmates as part of the royal prison. In the most recent comparable year, 2024, there were 624 homicides in Trinidad—more than the UK, but in a population of 1.5 million as opposed to the 70 million in this country. Crime is not rampant.

The next problem is the recruitment and retention of prison and probation staff. I have spoken many times about the problems at Berwyn prison near my home in Wrexham—the largest prison in Britain. In May this year, His Majesty’s Inspectorate found that a new governor had indeed injected some energy into dealing with its problems, but it reported that

“too many prisoners … did not have enough to occupy their time, with 25% unemployed and 27%”—

only 27%—

“in part-time work or education”.

I am sure that these figures will not impress the Minister.

There has always been a severe shortage of experienced prison officers at this prison. It was explained to me by an experienced and senior prison officer from Parkhurst on the Isle of Wight that prison officers look to their fellows to protect their backs, and they will not apply for positions in new prisons with rookie prison officers. In the last statistics that I saw, something like 80% at Berwyn prison had not served three years in the job.

This SI asks a lot of the Probation Service to prop up all these failures elsewhere in the criminal justice system. The Probation Service has very similar problems of retention and recruitment. The Minister referred to being one on one with a probation officer. I was told of one incident where one probation officer was looking after a group of a dozen or so, whose day’s task was painting a wall. One youth complained of vertigo after climbing a ladder and demanded that he be taken home. The sole probation officer, who drove the van, had no option but to pile all his charges into the back of the van to take the unfortunate individual to his place of abode. When they returned to the painting job later, someone had nicked all the paint tins. The system is broken.

So what is the lesson from all this? This SI will not solve a single part of the structural problems that I outlined. It is a stopgap, a thumb in the hole of the dam. If the Minister leaves this Room with his officials thinking that they have solved the problem and skinned this instrument through—despite the excellent report of the Secondary Legislation Scrutiny Committee, whose criticisms I entirely support—they will fail the people of this country. It is more than a battle for funds with the Treasury. It is more than for the Ministry of Justice to become a protected department. I hope that this Minister will have the vision and energy to drive wholesale reform through. He will earn his place in history if he does.

[Lord Lemos (Lab)]

My Lords, I declare my interest: I was the lead non-executive director of His Majesty’s Prison and Probation Service from 2018 to 2025. I support the proposal that the Minister has put before us. I note the noble Lord’s family motto, but am nevertheless compelled to observe that many of these short-term fixes that are being put in place to deal with the capacity crisis could have been addressed by the last Government much sooner.

I think I am right to say that the recall population is growing faster than the overall prison population as a whole—no doubt, if that is not correct, the Minister’s officials will correct me. Nevertheless, we should have addressed the growing recall population long before we were forced to by the capacity crisis. Too many offenders are recalled with little benefit and much disruption. This reform, small though its impact is—the noble Lord is quite correct about that—will put a brake on the length of recalls but not reduce substantially the number of offenders recalled. As the Minister said, we will have to wait until the implementation of the sentencing reforms proposed by David Gauke to make long-term reform to the numbers of people being recalled. I hope we will address that problem robustly. As I say, I support this reform, but we really need to put an end to these short-term fixes and get a grip on the whole sentencing issue. We will have the chance to do that before long.

I have two caveats of concern in this proposal. First, I quite understand the concerns that people have about the public protection safeguards, particularly for offenders who have committed offences involving domestic violence. The Minister referred to those and I know from my experience in HMPPS that the safeguards are robust and I hope that they will protect those victims appropriately.

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[Lord Keen of Elie (Con)]

I intervene to emphasise the point that I and the noble Lord, Lord Lemos, have made. In the case of offenders who commit a minor breach of their licence and have not been sentenced for a violent offence, there is surely a compelling case for not recalling them at all—there are other means of dealing with them through the Probation Service—so that we do not have a situation in which someone who has been in prison for fraud, for example, is stopped for a road traffic offence and sent back because they have breached the terms of their licence. It does not seem to make any sense in this context, and this could be done more or less immediately.

[Lord Thomas of Gresford (LD)]

I support the noble and learned Lord in that. There are recalls for failure to keep appointments, such as tagging appointments. If the Minister were to lay down a rule that people were to be tagged before they left prison and not wander around the countryside until they fail to make an appointment for that purpose, it would do a great deal of service.

[Lord Timpson (Lab)]

Our probation officers are experts in managing risk and their decisions determine whether someone is recalled, but it is important that we look into examples where it seems that someone should not be recalled. We need to have diversion options available too; the breaches may be minor, but they might not be from the victim’s point of view and may be part of other offending behaviour. IPP offenders, for example, can sometimes be recalled if their behaviour is similar to their original offence.

I hope noble Lords agree that this order is necessary to address the critical capacity issues faced by our prisons in the immediate future and is an appropriate bridging measure to avert a crisis before longer-term solutions are implemented. This draft instrument is a critical part of the Ministry of Justice’s approach to ensuring that our criminal justice system can continue to operate effectively. I trust that your Lordships will recognise its necessity, and I therefore commend it to the Committee. I beg to move.

Sentencing Guidelines (Pre-sentence Reports) Bill

Lord Thomas of Gresford Excerpts

Committee stage
Monday 19th May 2025 Grand Committee

[Baroness Hollins (CB)]

I was talking about unintended consequences and the risks of a lack of clarity. I was going to end simply by urging the Minister to reflect deeply on the evidence. We just cannot afford to legislate in ways that risk compounding harm and perpetuating disadvantage.

[Lord Thomas of Gresford (LD)]

My Lords, I realise that it is now 50 years since I was appointed as an assistant recorder; I was involved in sentencing for a very long time until I finally gave up. I later became a recorder, then a deputy High Court judge, and I dealt with many cases. The principle you have to apply, I think, is that the more you know, the better the sentence. For that reason, I fully support everything that has already been said by my noble friends, in particular that this Bill is completely misconceived.

In sitting here, I was trying to think of an illustration. It comes from a case that I did many years ago in the Midlands. It involved a family from south Asia. The wife of the son of the family was in an arranged marriage. She had come over from India or Pakistan—I cannot remember which—and married the son, who was a taxi driver. She could not speak a word of English. She had come over on a tourist visa, I think; in any case, there was something wrong with the visa. She became extremely fat because she ate with the family, then ate again with her husband when he had finished with his taxi business at night. So she stopped eating, and she slowly dwindled away until she was in a desperate condition. However, she was unwilling to go to the doctor. So the son took her to the doctor, but he went in himself and described her symptoms as if he was suffering from them. He got a prescription for the symptoms by pretending that he was the person who was suffering. The poor girl eventually could not walk, was incontinent and so on. She died. The son and both his parents were then charged with manslaughter. The trial took place, with the three of them charged with manslaughter, and they were all convicted. They then came up before the judge for sentencing.

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[Lord Timpson (Lab)]

The Sentencing Council was very helpful in pausing its decisions. The noble Lord is right: there are a lot of moving parts at the moment, and we are waiting with bated breath for news of publication dates. But I am aware that we also want to pursue and get on with the fact that we do not want people to be treated unequally in front of a court.

[Lord Thomas of Gresford (LD)]

The Lammy report made it clear that there is inequality for certain groups because of their particular characteristics. My noble friend Lady Bakewell referred to the Gypsies. I declare an interest as a Welsh Gypsy, and I thank her for her support. What research is there to show that the obtaining of a PSR causes preferential treatment? What research is there to show that a judge will give a more lenient sentence if he has a PSR before him? Is there any and, if not, why not, before a Bill like this is brought forward? Surely the noble Lord will agree with what I said before: the more a sentencer knows about a person, the better it is and the better the sentence, both for the individual and for the community.

[Lord Timpson (Lab)]

We are doing a large amount of work on collecting the data to understand the issue more widely, but I will write to the noble Lord with the exact information.

[Lord Thomas of Gresford (LD)]

There is no research, and this Bill has been brought forward on a premise that, from my experience, is wrong. It is that the provision of a pre-sentence report means that the judge will go easier upon the defendant. I think that is wrong and, without research, I do not see how you can bring this Bill forward.

[The Lord Bishop of Gloucester]

I appreciate that the Minister is in an interminable situation, but he did not actually respond to my key point, which is that there is an existing protection including the current mitigating factor for pregnancy. I drew attention to what was published in April last year, which already directs sentencers to obtain a PSR before sentencing and to adjourn sentencing until one is available, but this Bill is now making that unlawful. That is my key point.

Crown Court Criminal Case Backlog

Lord Thomas of Gresford Excerpts

Thursday 20th March 2025 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, from these Benches, I welcome the noble Baroness, Lady Longfield, to her place and congratulate her on an excellent maiden speech; we look forward to hearing more from her.

The Lady Chief Justice, the noble and learned Baroness, Lady Carr, told the Constitution Committee on 26 February that dealing with the backlog felt like

“running up a down escalator”.

She said:

“We cannot, even sitting to maximum capacity at the moment, diminish the backlogs”.


Cases are now being listed as far forward as 2028. Two inquiries are under way. The very principle of access to justice is threatened, with all the effects that this has on victims and witnesses and on lawyers and judges.

Giving evidence, as I have on a number of occasions, is not easy. The very fact that your account is to be challenged both for truth and accuracy is very daunting. The further you are from the events you are attempting to describe, the greater the pressure and the greater the possibility of self-doubt—a weakness any competent cross-examiner will exploit.

As for lawyers, according to the National Audit Office’s report on 4 March, 1,441 trials were cancelled on the hearing day in 2023, compared with 71 in 2019, because no legal professionals were available. The average time taken for a case in the Crown Court has increased in four years from 480 days to 695 days. I will say something about short listing. For the last trial I was involved in, I went five times to the Crown Court for nothing because my junior had something paid to do. I am sure you can feel the hurt as I speak.

The remuneration at the criminal Bar is so pitiful that it reminds me of the days of the dock trial. The noble Lord, Lord Carlile, who is to be congratulated on securing this very important debate, is too young to remember the line of ageing barristers whose careers had been wrecked by the war and who sat in the Birkenhead quarter sessions in their yellowing wigs, hoping to be picked by a defendant for the princely sum of two guineas—with five shillings, of course, for the clerk. We are back to those days.

As for judges, the Judicial Attitude Survey, published in February, found that more than three-quarters of serving judges suffer from work-related stress symptoms, with higher figures for females and minority judges. Some 30% said they are suffering from burnout. In addition, the survey showed that court buildings and equipment are in a mess and that such buildings are not fit places to work in.

This is not the time for wringing hands. I do not apply my family motto, ar bwy mae’r bai—who can we blame? It is a time for action. What are the Government going to do?

Strategic Lawsuits Against Public Participation

Lord Thomas of Gresford Excerpts

Thursday 6th March 2025 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the statutory definition of an economic crime SLAPP was within the previous Act, and the Civil Procedure Rule Committee has introduced rules. My honourable friend Minister Sackman signed the rules to come into law in January this year, and those measures will be implemented later this spring. The Government want to see how those measures will work before deciding on more legislation.

[Lord Thomas of Gresford (LD)]

My Lords, in 2023 the Conservative Government formed a task force to deal with SLAPPs under the direction of DCMS, with a wide representation of government officials, solicitors, barristers and journalists, and with terms of reference requiring bi-monthly meetings. Four reports were produced, the last in March 2024; there has been nothing since. Have the current Government abolished the task force? If not, what is it doing, and how and when will we hear from it?

[Lord Ponsonby of Shulbrede (Lab)]

I do not know the answer to the noble Lord’s question, so I will write to him.

Commission on Justice in Wales

Lord Thomas of Gresford Excerpts

Monday 7th October 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

The Welsh Government highlighted, in their May 2022 report Delivering Justice for Wales, the progress that they had made in implementing the Thomas commission recommendations that fall to them. They also commented that implementing the recommendation was delayed partly because of Covid-19. The commitment to pursue the case for devolution of justice and policing was included in the Welsh Government’s programme for government for 2021-26. However, as I made clear in the original Answer to the noble Baroness, the UK Government are not pursuing that option of complete devolution. We want to work in a constructive way on the initiatives that I have outlined to try to make the best possible benefit for the people of Wales.

[Lord Thomas of Gresford (LD)]

My Lords, why would it not be sensible and cost-effective at least to have a Welsh division of the High Court of Justice sitting permanently in Wales to monitor and construe the legislation of the Welsh Senedd and the administrative acts of the Welsh Executive, with increasing expertise from both lawyers and judges in Wales?

[Lord Ponsonby of Shulbrede (Lab)]

A lot of matters that are the responsibility of the Welsh Senedd are also cross-border issues. We are talking about police, courts and the way the court system behaves; probation is another example. My understanding is that this matter has been considered and keeping the arrangements as they currently are is seen to be beneficial for both England and Wales.

Strategic Lawsuits Against Public Participation

Lord Thomas of Gresford Excerpts

Wednesday 24th July 2024 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

I agree with the first point that the noble Baroness made. It is not just about economic crime, and that is one of the reasons why we want to have a wider review of potential SLAPPs legislation coming forward. I am not in a position to make the commitment that the noble Baroness has asked for around when any legislation might come forward, but I reassure her that we are taking this matter very seriously. On the Private Member’s Bill that fell at Dissolution, we support the principle behind it. However, we believe that there are outstanding questions that need to be properly balanced. That is to prevent the abuse of the process of SLAPPs, about which the noble Baroness spoke, but we also need to protect access to justice for legitimate claims. It is that balance that needs to be fully worked through. There were live discussions with important stakeholders—for example, the Law Society—at the time of the previous Private Member’s Bill. We have every intention of continuing those discussions as we review any potential legislation.

[Lord Thomas of Gresford (LD)]

The Private Member’s Bill that I produced on the abusive SLAPPs civil litigation, which was given its First Reading in the last Session of the last Parliament, was based on the Ontario model, which was approved in the Supreme Court of Canada as recently as last year and provides a way forward. It was also well received, as I recall, by the Ministry of Justice. Will the Minister take that into account?

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, there are various attempts at dealing with SLAPPs in different legislatures across the world. The Government are currently working with the Council of Europe, with its 46 member states, to try to get a more comprehensive approach. The noble Lord’s experience in Ontario, which he referred to, will be taken into account.