Legal System: Prosecutorial Policy

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 18th January 2018 Lords Chamber

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

My Lords, this brief and highly topical debate, for which we are greatly indebted to the noble and learned Lord, Lord Morris of Aberavon, who over many years has been a tireless contributor in this field, is focused rather on the earlier stages of the criminal justice system than on imprisonment and release. But those matters have been dealt with by those altogether more expert than me, not least the noble and learned Lord, Lord Thomas of Cwmgiedd, and I will turn instead to related questions that I have raised with the House on earlier occasions, notably on prison overcrowding. In much of what he said the noble and learned Lord, Lord Morris, shot and wounded, if not killed, many of my foxes, but I, too, will raise the issue of IPP prisoners, of whom alas Mr Worboys is one.

We had a two and a half hour debate on prison overcrowding in September last. I know that the recent Lord Chancellor read it, because some of us went to discuss prison reform with him. Now we have, sworn in this very morning, yet another Lord Chancellor—the fifth in as many years, such is the value now placed on that once great office. I express the hope that he and his new Prisons Minister, Rory Stewart, will now in turn read that debate and pay heed to it.

As it happens, the first leader in today’s Times squarely addresses the prison crisis. It talks of a “crumbling prison system” and the “dire” situation with fewer staff, an ever-increasing number of assaults on prison officers and fellow prisoners, and prisoners locked up for very long periods. It talks of “squalid” conditions, et cetera. Today’s Motion refers to justice for alleged victims. Justice they must certainly have, but I cannot accept that victims require us to pursue the course that we have taken over recent years of ever-longer sentences, to a point where in fact we now have more indeterminate sentences here than in all the other 46 countries of the Council of Europe combined. Overall, of course, we have a far higher proportion of our population in prison than in any comparable civilised country—I put aside, as an unhappy comparison, the United States. As today’s Times advocates, sentencing guidelines should be revisited.

Let me turn briefly to IPPs and alas, most topically, the Worboys case and the lessons to be learned from it. First, as the noble and learned Lord, Lord Morris, said, the prosecuting authorities, the police and the CPS should always strive to charge the accused with a sufficient number of offences to represent the full extent of his criminality and to indicate fully the degree of his dangerousness. It seems highly questionable whether that occurred in this particular case. Although a 16-year determinate sentence is very considerable—a sentence represented here by the eight-year tariff Warboys got—it might be the case that he actually should have had a life sentence. That would have been appropriate and would have kept him in prison altogether longer.

The second lesson, which Nick Hardwick—who truly is a most excellent chairman of the Parole Board—has himself been advocating, is that there should now be a radical review of the rule that the Parole Board cannot give its reasons or disclose the details of individual cases. It is perhaps worth putting on record here the most relevant provisions of the 2016 Parole Board rules. Paragraph 22(3) says that,

“a hearing must be held in private”.

Paragraph 24(1) says:

“The decision of the oral panel must be recorded in writing with reasons, and that record must be provided to the parties not more than 14 days after the end of the hearing”.


However, paragraph 25, under the heading, “Disclosure of Information”, says:

“(1) Information about proceedings under these Rules and the names of persons concerned in the proceedings must not be made public”.


(2) A contravention of paragraph (1) is actionable as breach of statutory duty by any person who suffers loss or damage as a result”.


As it happens, there were three letters on this in Tuesday’s Times this week. The noble and learned Lord, Lord Falconer of Thoroton, suggested that those rules were “almost certainly unlawful” and that the courts could and should strike them down. Sir David Latham, referred to already as the Parole Board chairman between 2009 and 2012, in what I suggest was a rather more balanced letter, said that it was time to look again at these rules. In the third letter, a member of the Bar persuasively suggested that there were good reasons for a privacy rule: hearsay evidence is admissible and psychiatrists, probation officers and others might well give information in the expectation of confidentiality. He said that we should certainly beware of hasty rule changes—and I agree.

The third Warboys lesson is that the Ministry of Justice must improve its system for alerting victims—including those who complained but were not themselves the complainants in the charges actually brought—of the impending release of a prisoner.

I end by urging that the Warboys case and the particular problems that it has raised really ought not to be used as an excuse by the Ministry of Justice for losing interest in the genuine grievances of many of the remaining IPP prisoners: those whose tariff sentences were often no more than months or a year or two but who remain incarcerated eight to 10 years after they have served their due punishment. Their plight has rightly been described by ex-Lord Chancellors as a stain on our criminal justice system, and so it remains. They are the subject of preventive detention, which is a form of internment—and that is not our system.