Prisoners: Indeterminate Sentences

Lord Hope of Craighead Excerpts

Thursday 27th March 2014 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, it is a privilege to follow the noble Lord, Lord Ramsbotham, and I join him and others in thanking the noble Lord, Lord Wigley, for initiating this debate. I spent some time this morning reading the report in Hansard of the debates held during the Committee stage of the Legal Aid, Sentencing and Punishment of Offenders Bill on 9 February 2012. They ended with the noble Lord, Lord McNally, the then Minister, moving that what is now Section 128 of the Act should stand part of the Bill. Having read those debates, I appreciate that several noble and noble and learned Lords who have spoken this afternoon took part in those debates too. They really are veterans of this campaign. Tributes have rightly been paid to the noble and learned Lord, Lord Lloyd of Berwick, who stands out as a leader on this issue. This is a sustained and admirable campaign to which I have introduced myself as a relative newcomer.

However, the issue itself is not entirely new to me. As the noble and learned Lord, Lord Phillips of Worth Matravers, pointed out, I sat on the appeals to this House against the decisions of the Court of Appeal in the cases of Walker and James, and had the great advantage of sitting with the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who was in his place earlier, and the noble and learned Lord, Lord Judge, who was then the Lord Chief Justice. It gave us no pleasure to have to dismiss those appeals on the ground that the sentences that had been passed against the appellants could not be said to have been unlawful. Fortunately, our decision that their Article 5 convention rights had not been infringed was not followed when they took their cases to Strasbourg, so it is now clear that these prisoners will have claims by way of damages. However, that makes the situation even worse for the Government than we thought it was when we heard those appeals. There will be a large bill to pay for this mistake, in addition to the costs of incarceration, and it is growing day by day and hour by hour as we speak.

We all know that the way the IPP sentences were introduced was regrettable. The statutory scheme itself was ill conceived. As the noble Lord, Lord Marks, pointed out, it was overly prescriptive and left no room for the exercise of any judicial discretion. As a result, far too many prisoners were sucked into it. There is a warning here for this Government too. I need only mention the debate that is still going on about the wording of some of the provisions in Clause 14 of the Immigration Bill, with which the Minister will be familiar, to make the point. It is most unwise to leave judges with no room for manoeuvre. Legislation by its very nature is a blunt instrument. It cannot foresee everything that may happen in the future. Facts vary from case to case. It should be left to the judges to fine-tune what the Government seek to achieve. They can be relied on to follow the guidance and can make it fit the facts. There was no need to spell out in Section 229 and Schedule 15 what was required for them to assess dangerousness and it was entirely misguided for the then Government to insist on doing so. We all know, too, that the system was comprehensively underresourced. I need not go over the details, which have been so well rehearsed by noble Lords who have spoken before me. All I can say is that the situation they have described is one that everyone knows has no place in a decent society.

That all having been said—one can of course pile objection upon objection in looking at the situation we now have—the real point of this debate, as I see it, is to focus attention on what can be done to put an end to the situation. The most interesting part will therefore be what the Minister can tell us in his reply. It was his Government who, very commendably, provided an opportunity to find a way out when they introduced Section 128 of the LASPO Act. As the headnote puts it, that section gives the Secretary of State power, exercisable by order, to change the test for the release of, among others, an IPP prisoner. However, that provision came into effect as long ago now as 3 December 2012, yet here we are, more than a year later, and nothing has been done to put it into effect: no order has yet been made, nor has there been any announcement of when we can expect one.

On 9 February 2012, the noble Lord, Lord McNally, refused to be drawn when he was asked to say when an order under that section could be expected to be made. He said that time was needed to see how the probation rules could be adjusted in the light of the argument to which he had been listening. The Committee was told that a new system of offender management was to take effect as from April of that year and that it was expected to “result in improved targeting”. So the first question I have for the Minister is whether he could tell us what the result has been of the exercise which the noble Lord, Lord McNally, told the Committee about.

Looked at from the prisoners’ point of view, there has been no obvious improvement in their situation at all. Why, then, have no steps been taken to give effect to Section 128? Having asked that question, I have to say with all honesty that I entirely understand the view that the Secretary of State has taken, which is that he has to respect the rule of law. It is not open to him, with great respect, to alter the terms of these indeterminate sentences; nor is it open to him to alter the system that Section 239 lays down for the performance of its functions by the Parole Board. As the House made clear in its judgment in the case of James in 2009, the detention of these prisoners is, and will remain, lawful until the Parole Board gives a direction for their release. The default position—which is the position they are regrettably now in—is that, until the Parole Board gives that direction, protection of the public requires that they should be confined.

Moreover, Section 239(6) of the 2003 Act was not repealed. As a result, when he is giving directions to the Parole Board under that Section 128 of the 2012 Act, and indeed under Section 239, the Secretary of State is required to have regard to,

“the need to protect the public from serious harm from offenders”,

and the need to secure “their rehabilitation”. I cannot see an escape from that situation as the legislation stands at present—that is what the law requires. One simply cannot assume, without looking at the facts of each case, that all those in a given category are fit for release immediately.

However, the situation is not beyond repair. Section 128 of the 2012 Act requires the Secretary of State to steer a narrow course. As the noble and learned Lord, Lord Lloyd, said, it is his duty to exercise the power which Parliament gave to him. There are no short cuts but I cannot understand why he is unable to find a way to exercise that power in the way that Parliament contemplated. The headnote talks about changing the test for release. Can the Minister tell the House what the current tests are, what steps are being taken to see why they are not fit for purpose—as they obviously are not—and what thought has been given to changing them so that they are? I do not see that as changing the terms of the sentences; it is all about changing the test to be applied by the Parole Board. There is great force in the point already made that the power under Section 128(1)(b) should be used, which inverts the onus and requires the Parole Board to direct release unless the Prison Service can satisfy the board that the prisoner should not be released.

There is one further point that I should like to make. There are other things that could be done. The noble Lord, Lord Ramsbotham, drew attention to them in the debate on 9 February 2012. He said then, as he did this afternoon, that there was a need for someone to be,

“made responsible and accountable to the Secretary of State”.—[Official Report, 9/2/12; col. 437.]

Having looked at the idea, there is much to be said for that proposal. Again I ask the Minister: what thoughts have been given to the proposal that was made in that debate in 2012? If it is difficult for him to answer the question immediately, will he be kind enough to write to us to explain what the answer is to the various questions that have been put?