Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Thomas of Gresford and Lord Ramsbotham

Tuesday 20th March 2012 Lords Chamber

[Lord Thomas of Gresford]

Having read the amendment as drafted, I was confused as to whether the mistake was a technical mistake, a mistake of law or a mistake of fact of the basis upon which the order was made. It is not clear from the wording here that the latter is the proper meaning. I am heartened to hear from the noble Baroness, Lady Lister, that she has received a communication from the Ministry of Justice saying that mistake does not mean the slip rule, which is a very familiar concept to lawyers. It may not be familiar to the bailiff who is knocking on the door. It is important that my noble friend should make it quite clear that a mistake of fact is needed; in other words, that if the magistrates’ court had been aware of the particular circumstances of the individual at the time that the warrant was to be enforced, it would not have made that order. If that is what it means and the Minister says so from the Dispatch Box, I would be satisfied with that. If that is not what it means, we need to discuss the issue further.

[Lord Ramsbotham]

My Lords, I speak in support of government Amendment 152ZA and also speak on behalf of my noble friend Lord Rix who unfortunately is unable to be present because of his wife’s ill health. I thank the Minister for the extremely productive meeting that we had, which has been mentioned. The points that my noble friend has asked me to raise arise out of the amendment which came after that discussion in support of what was said.

The context of this is the duty of the court to explain sentences in ordinary language, which we raised in Committee. The Minister admitted that the phrase would ensure only that most people could understand an explanation. While we welcome the amendment and believe that it has the ability to extend comprehension of the effect of a sentence on all parties concerned, which is an important development, we are still not certain that it covers the point about ordinary language. On that, we would like some clarification. We believe that the Criminal Procedure Rule Committee could offer a similar safeguard, but we are not sure about where that safeguard extends and how wide it is. Will the Minister clarify how confident she is that the committee will make rules regarding the need to go beyond ordinary language in certain circumstances? Will it actually make these rules? To what extent are the rules made by that committee binding on the court? The concern is that if the rules are merely guidance, they might not be put into practice, despite the best intentions of the Government and the committee.

Will the Minister tell us about the time scales? When will the committee be empowered to make such rules and when might they be enforced? Are we looking at something imminent? Will it depend on when the Bill is passed? Finally, what opportunities will there be for Members of both Houses to scrutinise the implementation of these measures in the future? If they are rules of the committee rather than something in the Bill, it is more difficult for us to monitor them. They have an enormous effect on the people whom we mentioned in Committee and their ability to understand the process of law.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Thomas of Gresford and Lord Ramsbotham

Wednesday 15th February 2012 Lords Chamber

[Lord Thomas of Gresford]

I congratulate the Government on the amendments that they are introducing into the Bill, which are the culmination of years of campaigning by my noble friend Lord Dholakia—within, and with the support of, the Liberal Democrats—to modernise the law.

Amendment 185FAA, in my name, was suggested by the Howard League, of which my noble friend Lord Carlile is president—unhappily, he cannot be with us tonight. Its purpose is to recognise that children may change in a shorter time than adults, something that the Minister has already recognised in his remarks today. The amendment affects a significant proportion of children with the opportunity to wipe the slate clean upon reaching 18 years of age. It refers to the question raised in the Green Paper that has been referred to: that the Rehabilitation of Offenders Act 1974 be amended so that children convicted of non-serious offences have a clean slate on reaching their majority. Paragraph 117 of the Green Paper says:

“We would welcome views on how we might do more for young offenders as we are aware that some people are, for example, finding their path to higher education blocked on the basis of juvenile convictions. ‘Wiping the slate clean’ once the offender reaches adulthood is a possible approach for all but the most serious offences”.

There is no reference to this suggestion in the Government’s response to the consultation, and I do not know whether any of the respondees actually dealt with the question that was asked.

Wiping the slate clean would have a big impact on the future employment prospects of young offenders. It is obviously intended to apply only to non-serious offences and the public will not be at risk of any harm. Clearly, the usual suite of public protection arrangements will continue to apply to jobs that involve working with children and vulnerable people. If this provision were adopted, it would be a powerful incentive for young people to rehabilitate as responsible adults in their communities. Such an incentive is important at a time when youth unemployment is at a record high and there is a risk of both crime and detention rates spiralling further.

The amendment has been crafted to ensure that rehabilitation periods are not spent before a young person completes their sentence. That does not mean that those who would otherwise be required to wait a long time before their conviction is spent would suddenly find themselves without any rehabilitation period at all, simply due to having committed an offence close to their 18th birthday. It would exempt those still serving their sentence at 18, including the licence period of that sentence, from the “wipe the slate clean” provision. In other words, if a young person committed a theft aged 17 and is sentenced to three years in detention, he would attract a rehabilitation period of three and a half years, commencing on the completion of his sentence at the age of 20. Therefore, the conviction would not be spent until he reached 23 years of age. However, if he committed a theft at the age of 14 and was sentenced to three years’ detention, instead of waiting until the age of 21 for the conviction to be spent his sentence would expire when he was 17 and his conviction would automatically become spent on his 18th birthday. This provision deals with the possible criticism that a person who commits an offence aged 17 years and 11 months would have his conviction wiped clean on his 18th birthday. That would clearly be unacceptable and is most certainly not the intention of this amendment.

The Government raised the question in the Green Paper but we have not had an answer. I would welcome a response from my noble friend.

[Lord Ramsbotham]

My Lords, briefly, I support the government amendments that have been tabled and echo the many warm things that have been said about the noble Lord, Lord Dholakia, for his persistence in pursuing this matter.

I merely mention that in 2001 I was invited to inspect the young offender institutions in the Caribbean. In Barbados, I found a system in which, at the age of 18, every child automatically had their convictions looked at and the slate wiped clean of all except those that it was deemed in a schedule should be carried forward. I brought that information back and fed it into the team studying Breaking the Circle at that time. Given all the points that have been made by the noble Lords, Lord Dholakia and Lord Thomas, it seemed particularly important that this should apply to young offenders so that they were not hampered, particularly in their further education, by crimes that they had committed as children.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Thomas of Gresford and Lord Ramsbotham

Thursday 9th February 2012 Lords Chamber

[Lord Thomas of Gresford]

My Lords, I have Amendment 179ZA in this group. The Minister can surely take pride in the abolition of IPP sentences and in the fact that he and this Government are leading public opinion in this area. The Minister suggested earlier that the Government were not given enough credit for leading public opinion, but here they most certainly are.

There were many weaknesses to the IPP regime. It was imposed in far more cases than was ever expected when the regime was introduced, but a major weakness was that a defendant, a convicted person or a prisoner had to prove a negative: that it was no longer necessary for the protection of the public that he should be confined. That was the great weakness. When he tried to prove that he could safely be released, all he could he do was produce certificates that he had completed courses from programmes that were offered to him in prison, but the second great weakness was that those programmes might not be available or a prisoner would be transferred in the middle of completing a course from one prison to another and would have to start again. That is the basic reason why people have been kept after the expiry of their tariff.

The new provision for extended sentences unhappily retains the necessity for a prisoner to prove that it is no longer necessary for the protection of the public that he be confined, so that great weakness in the existing system is being continued in the system of extended sentences.

I propose in this amendment that the whole system should be tightened up in relation to those who are beyond their tariff date and are serving at the present time. It should be tightened up to the point of becoming, for the first time, a fair system. In subsection (1) of my amendment, there is a duty on the Secretary of State to “immediately refer” the case of a prisoner who has served the entirety of his tariff to the Parole Board. That should not be a discretion; he must do it immediately. Then it is the duty of the Secretary of State—not a discretion—to release the prisoner,

“on license as soon as the Board has directed his release under this section”.

Subsection (3) attacks most directly the weakness that I described to your Lordships:

“The Board must direct P’s release unless the Board is satisfied, on the basis of clear and compelling evidence which post-dates P’s conviction, that there is a strong and immediate probability that P will commit a serious violent or sexual offence on release”.

If the tariff is 10 years, the Parole Board should look not at what happened 10 years earlier but the current situation and what sort of risk the prisoner now threatens the public with. What is the evidence that he will commit a serious, violent or sexual offence if he were released? At the moment, we ask the Parole Board to make that judgement without evidence, relying merely on certificates of programmes completed and so on. A judgment without evidence is otherwise called a guess. A person’s liberty should not be decided by how the Parole Board guesses the future.

Subsection (4) suggests that,

“where the Board has declined to direct release,”

the Secretary of State must—it is his duty to— demonstrate,

“that provision has been made for P to undergo relevant programmes”.

He must also,

“refer P’s case … at 6 monthly intervals until such time as the Board directs P’s release”.

In other words, P will not be left languishing with no programmes presented to him for an indefinite period of time. I happen to know that someone I represented has done all his programmes and got all the certificates but he is still being kept in. On what evidence has that been decided? It is just the way that the Parole Board guesses he will behave if he is released.

Most importantly, subsection (5) contains a limit—or final stop, or buffer—which means that if a person has been in prison for five years after his tariff expired he must be released in the case of specified violent offences, or after,

“8 years post-tariff custody in the case of a specified sexual offence”.

That limit for existing prisoners serving IPP sentences is based on the limit contained in the new provisions for an extended sentence. That limit—or final stop, or buffer—is put into Clauses 115 and 116.

Grouped with this are my Amendments 179BZA and 179BZB, which attempt to amend Clause 116 to introduce, again, the need for,

“clear and compelling evidence … that there is a strong and immediate probability that P will commit a serious violent or sexual offence on release”,

for the Parole Board to refuse to allow him to be released when his tariff has been fulfilled. Similarly, Amendment 179BZD indicates exactly the same provision.

This is an extremely important matter. More than 3,000 prisoners are still held after the expiry of their tariff. We cannot abolish IPP sentences and allow them to remain in prison indefinitely.

[Lord Ramsbotham]

My Lords, I entirely agree with what the noble Lord, Lord Thomas, said about congratulating the Government on introducing change. I have to admit that, along with many others, I have hated IPPs ever since they were introduced by the Criminal Justice Act 2003.

Of course there are people from whom the public must be protected, some of whom have been awarded sentences of natural life. I freely admit that all is not well with the release of prisoners about whose risk of committing violent or sexual offences prison governors feel uneasy. Yet I knew of the inability of the Prison Service to provide sufficient offending behaviour programmes for those who require them. Also, 60 per cent of lifers serving determinate sentences are already one year over tariff, mainly because of the inability to satisfy what the Parole Board requires before sanctioning release, so I simply could not see that such an ill thought through introduction could result in anything other than the prison population being needlessly increased by a steadily increasing number of those whose release date was deliberately made uncertain.

Cynically, having become used while Chief Inspector of Prisons to Home Office Ministers and officials living in a virtual criminal justice system and being unwilling to accept objective advice based on facts, I feared that no notice of any outsider warnings would be taken—and how right I was. Since then, attempts have been made in this House to alleviate the IPP problem by raising the minimum tariff threshold, but the numbers of those above the original ministerial forecast and those who have exceeded their tariff already have continued to grow.

I was therefore delighted to hear the Secretary of State announce that IPPs were to end and see that confirmed in Clause 113. However, as the noble Lord, Lord Thomas, has stated, the Government have not said that they intend to alter the arrangements for those currently serving IPPs to earn their release, which will mean that such prisoners will continue to clog up the overcrowded prisons for years to come unless something is done. My amendments, and those to which I have added my name, are designed to end this situation as quickly as possible, in line with the Government’s aim of reducing the size of the prison population.

Before I speak to the amendments, I beg the indulgence of the House while I say something about some of the residual effects of indeterminate sentences, because they must not be disregarded when any meaningful consideration of the problem is taken. Prisons are fragile places in that, to work effectively, they depend on relationships of mutual trust, if not affection, between staff and prisoners. Let those break down and you are in trouble, which is precisely why it is so important that numbers of prisoners are kept as low as possible and that our understaffed and overcrowded prisons are looked at very carefully. As chief inspector, I introduced what I called the healthy prison test, in which I asked whether everyone felt and was safe, whether prisoners were treated with respect as fellow human beings, were enabled to improve themselves by access to purposeful activity and were enabled to prepare for release and maintain contact with their families.

IPPs fail every test on every account. The uncertainty that they introduce has encouraged too many of those awarded IPP sentences to take their own lives, and has also brought on much mental distress. It is inhuman to award anyone a sentence of 99 years, which is how indeterminate sentence length is described on the internet, when the prisoner does not know how or when he may qualify for release. It is patently wrong for release to be dependent on courses and programmes that simply are not available. I have lost count of the numbers of letters of complaint that I have had from families who simply do not know when their relative or loved one can qualify for release. In other words, IPPs have been an obscene, inhuman and expensive disaster.

My amendments are in two parts. Amendment 180 links with Amendment 179, tabled by my noble friend Lord Wigley, in that it seeks to establish a proper end game to the issue through a statement from the Secretary of State that individual plans have been made for the release of all those currently serving IPPs. I am not suggesting that all IPP prisoners should be released in three months, but that plans should be made in that period. For them all to qualify for that release, plans must ensure that those qualifications are both available and satisfied. Urgent plans must be made for the release of the 3,750 prisoners who are already over their tariff, which I accept will demand much detailed work, and probably resources.

However, urgent remedial action is required to put right a situation that should have never been allowed to develop, before it costs the taxpayer yet more millions of pounds. In saying this, I am conscious that the Parole Board, under its excellent chairman Sir David Latham, is already under extreme pressure, and that any alteration to current arrangements, such as the introduction of six-monthly reviews, would need to be very carefully considered because, at present, it would be unworkable. I know that Sir David is sympathetic to any proposal intended to produce release as soon as possible after tariff expiry, but it must be realistic. In the best interests of the Parole Board, therefore, and of enabling the Prison Service to better direct the use of its limited resources towards protecting the public by preventing reoffending, there is all the more reason for coherent planning of this release process.

--- Later in debate ---

[Lord Thomas of Gresford]

Your Lordships will recall that in connection with an earlier amendment I referred to the existing test—which will continue to apply under this Bill—for the Parole Board to apply in considering whether a person should be released. The existing test is that the board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. Your Lordships will recall the criticisms that I made of that. In his reply, the Minister said that Clause 117 gives power to the Lord Chancellor to change that test. I am a little bit puzzled, and I ask my noble friend to explain why that power to change the test is in there. Furthermore, I am very pleased that it is, because I think that the present test is neither fair nor just. The power to change the test is in subsection (1), where,

“the Parole Board … must direct the prisoner’s release if it is satisfied that conditions specified in the order are met, or … must do so unless it is satisfied that conditions specified in the order are met”.

I know that my noble friend, as he earlier confessed, is a follower of Blackpool football club, but at the weekend he may have had the opportunity of watching the Wales versus Ireland rugby match at Lansdowne Road. An incident there perfectly illustrates the situation. There was a pile-up over the line and the referee, instead of making the decision and awarding the try which Wales had so clearly scored, called in the TMO and said, “Has the try been scored—yes or no?”. Immediately, that illustrious and brilliant commentator Jonathan Davies, a brilliant player in his own day, said, “He’s asking the wrong question. The question he should ask is: ‘Is there any reason why this try should not be awarded?’”. By asking it as, “Has he scored it—yes or no?”, the referee was pushing the decision over to the TMO; but if he were to ask the second question, he would be taking responsibility by saying, “I am going to award the try unless you tell me that there is a reason why I should not”.

Applying the same approach to the release of a prisoner, the Parole Board should not be asking whether the prisoner has complied with this or that test; it should be asking: “Is there any reason why we should not release this prisoner? Is evidence being produced for us to look at in reaching a conclusion on whether this prisoner can be safely returned to the community?”.

That is the reason why I support Clause 117—in the hope that the second alternative, in subsection (1)(b), is adopted, and that the Lord Chancellor will then very quickly see the necessity of changing the Parole Board’s test to one that is far fairer: “Is there any reason why, after serving the period of the tariff that the judge has imposed”—which is supposed to be what the judge would have awarded by way of a sentence had he taken that course—“this person should not be released?”. I commend this clause and suggest that the power should be exercised very quickly.

[Lord Ramsbotham]

My Lords, I gave notice of my intention to oppose that the clause stand part in order to be consistent with my now failed hope that the Government would accept the earlier amendments on the IPP. As they did not, it is obviously irrelevant now to say that the clause should not stand part. I shall therefore not oppose it. For all the reasons that the noble Lord, Lord Thomas, outlined, the clause contains some very important measures which provide the Secretary of State with tools to bring about many of the things that we hope will happen to the IPP sentence.