Release of Prisoners (Alteration of Relevant Proportion of Sentence) Order 2019

Lord Keen of Elie Excerpts

Wednesday 22nd January 2020 Lords Chamber

Moved by

[Lord Keen of Elie]

That the draft Order laid before the House on 14 October 2019 be approved.

Special attention drawn to the instrument by the Secondary Legislation Scrutiny Committee, 3rd Report, Session 2019

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I will also speak to the Criminal Justice and Courts Act 2015 (Consequential Amendment) Regulations 2019.

These draft instruments form part of the Government’s wider plans to reform sentencing and law and order, through which we aim to strengthen public confidence in the criminal justice system. The purpose of these instruments is to ensure that serious violent and sexual offenders serve a greater proportion of their sentence in prison, and to put beyond doubt that these release provisions will apply in relation to offenders receiving consecutive sentences, ahead of further changes the Government will set out in a sentencing Bill.

Under the provisions of the Criminal Justice Act 2003, all offenders sentenced to standard determinate sentences must be automatically released halfway through their sentence. These orders move the automatic release point for the most serious offenders who receive a standard determinate sentence of seven years or more. Instead of being released at the halfway point of their sentence, they will be released after serving two-thirds of their sentence.

A key component of our criminal justice system should be transparency, but currently, a person convicted of rape and sentenced to nine years in prison will be released after only half that sentence. Victims and the general public do not understand why they should serve only half their sentence in custody. While improved communication about how a sentence is served will help, this measure aims directly to improve public confidence by making sure that serious offenders will serve longer in prison.

Some may suggest that the whole sentence should be served behind bars, but this would not serve victims’ interests. It is crucial that when someone is given a custodial sentence, they spend part of this sentence under supervision in the community. The licence period has long been an integral part of the sentence, and it should remain so. It provides assurance to victims through the imposition of conditions to protect them such as non-contact conditions and exclusion zones, through supervision by the probation service and through the power to recall that offender to prison if they breach their conditions. It is also an important period for rehabilitation, giving the offender the chance to address their offending behaviour and undertake activities that can help to prevent them reoffending. So, a licence period must remain.

However, it is not in the interests of public protection that when someone has committed a serious offence for which they rightly receive a long sentence, such as grievous bodily harm with intent or rape, they are entitled to be released half way. This instrument aims to address this by moving the release point for these serious offenders so that they will serve two-thirds of their sentence in prison and the remainder on licence. Retaining them in prison for longer will provide reassurance to victims, protect the public and restore public confidence in the administration of justice. It will also provide longer periods for these offenders to undertake rehabilitative activity in prison and prepare effectively for their release and resettlement in the community.

Automatic release from a fixed-term custodial sentence is a long-established measure. The Criminal Justice Act 1991 made a clear distinction between long-term and short-term prisoners. Short-term prisoners would be released automatically at the halfway point of their custodial sentence. Under Section 33(2) of that Act, long-term prisoners could be released automatically only at the two-thirds point of the custodial period. The 2003 Act removed this distinction between sentence lengths, requiring all standard determinate sentence prisoners to be released at the halfway point.

This order is the first step in restoring that distinction, beginning with those sentenced to standard determinate sentences of seven years or more, where the offender has been convicted of a serious sexual or violent offence, as specified in parts 1 and 2 of Schedule 15 to the 2003 Act, and for which the maximum penalty is life. Moving the release point to two-thirds for these offenders will correct what this Government consider to be an anomaly in the current sentencing and release framework.

Take the example of an offender convicted of rape. They could receive a standard determinate sentence, or, if they are determined by the courts to be dangerous, an extended determinate sentence. If they are given an extended determinate sentence with a custodial term of nine years, they could spend the whole custodial period behind bars if it was necessary for the protection of the public, but the Parole Board could consider them for release on licence after two-thirds of that period—namely, six years. However, if they were not assessed to be dangerous but had still been convicted of this very serious offence and sentenced to a standard determinate sentence of nine years, currently, they would be released after four and a half years. This measure will bring the two sentencing regimes closer into line, so that the offender could be released only after six years, ensuring that offenders committing these grave offences serve time in prison that truly reflects the severity of their crime.

We are starting with those sentenced to seven years or more because this strikes a sensible balance between catching those at the more serious end of the scale and allowing time for the change to embed sustainably. While the measures will apply to anyone sentenced to a standard determinate sentence of seven years or more for a relevant offence after the orders commence, the effects will not begin to be felt until nearly four years later—that is, until we approach the stage at which the first affected prisoners reach the halfway point of their sentence and remain in prison rather than being released. The impact will be felt gradually; our best estimates are that this will result in fewer than 50 additional people in custody by March 2024, rising to 2,000 over the course of 10 years.

The House’s Secondary Legislation Scrutiny Committee has drawn attention to the impact of this measure. I am content to offer assurances that this Government will act to ensure that the additional demands on HM Prison and Probation Service will be met. We will continue to invest in our prisons, both to build the additional capacity of 10,000 places announced by the Prime Minister—as well as the 3,500 places already planned at Wellingborough, Glen Parva and Stocken—and to undertake maintenance across our prison estate to manage the anticipated increase in demand. We have also invested significantly to increase staff numbers, recruiting between October 2016 and September 2019 an additional 4,581 full-time equivalent prison officers, thereby surpassing our original target of 2,500. We will continue to recruit officers to ensure that prisons are safe and decent, and to support both the current estate and planned future additional capacity.

Our impact assessment is based on assumptions that judicial and offender behaviour will continue unchanged, although of course, that cannot be certain. We are putting in place mechanisms with our partners across the criminal justice system to monitor the impact of the additional officers and give us the ongoing and future insight necessary to allow us to plan the prison estate. As these offenders spend more of the sentence in prison, correspondingly less time will be spent under probation supervision in the community.

These measures will enable us to take swift but sustainable action ahead of the wider package of reforms that the Government intend to bring forward in the sentencing Bill. They are not retrospective and will apply only to those sentenced in England and Wales on or after 1 April 2020.

Not proceeding with legislation would mean continuing with a system which fails properly to ensure that serious offenders serve sentences that reflect the gravity of their crimes and continue to be released halfway through their custodial period. In our view, that is not in the public interest, nor does it promote confidence in the justice system. I beg to move.

[Lord Beecham (Lab)]

My Lords, for some time this country has had the dubious distinction of having among the highest number of prisoners relative to population in Europe, with the numbers having risen by almost 70% in 30 years, with the vast majority of those, some 60%, being imprisoned for non-violent crimes. Moreover, the length of sentences has increased substantially, with 2.5 times as many people being sentenced to 10 years or more in 2018 as in 2006. On average, those receiving mandatory life sentences spend 17 years in custody, an increase of four years since 2001, while the average minimum period imposed for murder rose from 12.5 years in 2003 to 21.3 years in 2016. And yet, typically, the Prime Minister chooses to play to the gallery by reviewing sentencing policy without any consultation beyond the inner workings of the Ministry of Justice, and emerges with proposals for a draconian increase in the length of sentences which is likely to increase substantially the problems faced by an overworked and understaffed Prison Service, and indeed by the majority of prisoners.

As the Prison Reform Trust has pointed out:

“No evidence is given about the re-conviction of people currently released from these sentences”


and there is a risk that

“the people affected will spend a shorter period under the supervision of the probation service after release.”

The trust points out that reconviction rates are indeed lower for those serving more than four-year sentences, but there appears to be no evidence that sentences of seven years or more lead to any further reduction in reoffending on release.

The trust also reveals that the Ministry of Justice’s own research discloses that, when they are given the full facts of individual cases,

“the public tends to take a more lenient approach than sentencing courts.”

Moreover, they are likely to be confused by the fact that, when two convictions lead to consecutive sentences of less than seven years but with a total of more than seven years, the new provisions will not apply. And, of course, it is in any event open to the trial judge to impose longer sentences where this is deemed necessary.

As the trust rightly points out, there are other and better approaches to combating potential reoffending, not least by tackling the problems of the understaffed probation service. It rightly points out that the Chief Inspector of Probation has raised the issue of unacceptably large case loads for officers responsible for the supervision of long-serving former prisoners. Typically, no detail has been supplied of the additional costs of providing the offender management of those in custody that the new regime will require. Can the Minister supply any information about the relevant staff numbers and the costs involved?

For that matter, is he able to provide an estimate of the costs likely to be incurred by local authorities to meet the needs of families struggling for even longer periods without the income of an imprisoned partner or parent? What assessment has been made of the impact on prisoners’ employment possibilities after serving longer sentences and the consequential cost of benefits if, as seems increasingly likely, they find it even more difficult to find employment after a longer period of imprisonment?

Other financial questions arise. Four years ago the Government declared that they would provide an extra 10,000 prison spaces. All of 200 have been created. How many places will be required now to meet the need created by this order? How long will it take to provide them? What is the estimated cost of their provision and of the necessary increase in staffing? To what extent does the estimated increase in prison numbers of 3,200 by March 2023 reflect this new policy—or did that increase precede the policy contained in this order?

The last decade has seen a shocking worsening of conditions in our prisons. Sexual assaults quadrupled between 2012 and 2018; 117 prisoners have died having used or possessed new psychoactive substances; self-harm incidents rose from 23,158 in 2012 to a staggering 55,598 in 2018, with women disproportionately affected; and assaults rose dramatically, tripling to more than 10,000 on staff between 2013 and 2018. Yet staff numbers were cut by 26% between 2010 and 2017-18—albeit with some partial restoration since then. But—this is surely alarming—54% of the officers who left the service last year had served less than two years. What, if any, attempts were made to understand the reasons for this drastic loss of staff in such a short period and to avoid its repetition? Currently, 35% of staff members have been in post for less than two years and only 46% have served for more than 10 years. What, if anything, is being done to address this disturbing position and what, if any, is the difference between privately and publicly managed prisons in those respects?

In 2018, 58,900 people were sentenced to prison, 69% of them for non-violent crimes. Of those who received custodial sentences, 46% served six months or less. Is it not time to review the utility of such sentences against alternative measures? Would it not be better to secure greater investment in the probation service and the youth service as an approach to tackling the problem?

Should it not be a priority to promote purposeful activity for those sentenced to imprisonment? Just two in five prisons received a positive rating for this in 2017-18, while the quality of teaching and learning in prisons has declined, with the number of those rated as good reduced to 42%. Some 62% of those in prison had a reading age of 11 or lower in 2017-18. What will the Government do to address this serious situation, which is mirrored in a significant fall in the number participating in education while in custody?

There are serious matters to be addressed in our Prison Service. Will the Minister use his influence to persuade the Prime Minister to address them rather than play to the gallery with a populist approach that at best will achieve nothing and is likely to make matters worse, not just for prisoners but for prison staff and society as a whole?

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I am grateful for all the contributions to the debate, which has ranged widely and not simply confined itself to the terms of the present order. That is entirely understandable and appreciated. I have listened with interest and concern to the many contributions. I will touch on some as I go through, more on the basis of topics than anything else.

I emphasise that we are dealing here with steps that we can take by way of this order in the context of our bringing forward a sentencing Bill that will be the subject of detailed consideration both here and in the other place. However, this is what we can do at present under the 2003 legislation.

In answer to the proposition that we are increasing sentences, I suggest that this is a process of restoration, not of increase; we are restoring the position to what it was prior to 2003. There is also the technical question of how we deal with consecutive sentences, because there was a concern about the state of the law before that.

My noble friend Lord Hailsham talked about relevant courses for safe release, and he makes a good point. It is more applicable to extended, rather than standard, determinate sentences, but I am conscious of his point. That touches on a wider issue of concern, that of rehabilitation. We all aspire to secure rehabilitation; who would say, “Yes, we want to imprison people for long periods but we’ve no desire to rehabilitate them. We’d rather they came out of prison just as dangerous and violent as they were when they went in”? Of course we aspire to rehabilitate. Although it may have gone unsaid in some quarters, we all understand what a challenge that genuinely is for the prison population that we have, but we are concerned to try to achieve it.

If we extend the sentence, as this instrument proposes, it will take some pressure off the probation service, but I do not seek to overstate that. Reducing the period for which someone is on licence will take some degree of pressure off the service, but that is perhaps marginal.

The noble Lord, Lord Ramsbotham, talked about us now adding 2,000 prisoners to an overcrowded population. However, with respect, that is the impact on prison numbers by 2030; we will not see any immediate impact from this for four years. It is a gradual process, and we are in the position of already dealing with the question of prison numbers by reference to capacity and staff. Indeed, in August 2019 it was announced that we would expend some £2.5 billion in this area, and in 2020-21 we will expend somewhere in the region of £156 million on the existing prison estate. Those are considerable sums of money.

The noble and learned Lord, Lord Thomas of Cwmgiedd, raised the question of new Treasury money—I think I quote him correctly. I confess that that is more a matter for the alchemist than the Minister. New Treasury money is, again, one of those aspirations that every Minister may have, but securing it is very different from talking about it. But we are expending considerable sums on the prison estate and will continue to do so.

In passing, I recognise the importance of access to justice in all its forms, as we all do, but we must be proportionate in how we go about that. There are various demands on the public purse; we cannot just assume that we have unlimited funds available, even in legal aid, for example.

Of course, there are changes we can aspire to. Indeed, the noble Lord, Lord Hogan-Howe, talked about the introduction of further technology. I am sure that is an area where exploration would pay dividends over the 10-year period we are talking about, up to 2030.

These instruments are an important first step towards reforming sentencing and release measures for offenders, particularly those who cause the greatest harm to society. In these circumstances, we consider that they will ensure an improvement in the perception of how sentencing operates. Indeed, a noble Lord mentioned that some victims of crime have little idea of how the sentencing of a prisoner who has committed a violent crime actually works. It is important to bring greater transparency to that, while ensuring that when a violent prisoner, or a prisoner who has committed a violent offence, is released, they are still subject to a period when they receive the required support from the probation service, and are still under licence and can be returned to prison if they commit a further offence.

I commend the instrument to the House.

Motion agreed.