Criminal Justice and Courts Bill

Lord Lloyd of Berwick Excerpts

Monday 14th July 2014 Lords Chamber

[Lord Pannick (CB)]

My Lords, I support everything that has been said by the noble Lord, Lord Lester of Herne Hill. I add simply one point. Amendment 7 would enact what was the practice prior to 1997, except of course that the review prior to that date was conducted by the Secretary of State and not by the independent Parole Board.

I am concerned that there is one reason and one reason only why this Government, and indeed their predecessor, removed the right to a review after 25 years and refuse to reinstate it. The reason is that, as a matter of law, such a review could not lawfully be undertaken by a Minister. The Strasbourg court has repeatedly stated that an independent person must make decisions on release. I would welcome the Minister’s comments on this, but I anticipate that the Secretary of State would be quite content for there to be a review by her or by her successors after 25 years but what she cannot accept is a review by an independent Parole Board. However, as the Strasbourg court has repeatedly stated—and it is surely right—decisions on release should be made by an independent person or body and not by a politician, however wise or experienced she may be.

[Lord Lloyd of Berwick (CB)]

My Lords, for the reasons that have already been given, I support the amendment and I do so all the more willingly because it is very similar to an amendment which I tabled two years ago when we were debating the LASPO Bill. A very significant difference between the two amendments is that I thought that the review should take place after 30 years rather than 25 years. My reason was that 30 years is one of the starting points for determining tariffs under Schedule 21. A defendant with a 30-year starting point and no mitigating or aggravating features would look forward to a review after 30 years but not before. It would not particularly make sense that a whole life prisoner should have a right of review after 25 years when one with a 30-year starting point would have to wait for 30 years, but that is a small detail.

The debate on my amendment took place on 9 February 2012, at col. 390. There were 12 speakers on that occasion. All, except the noble Lord, Lord McNally, supported the amendment. The only reason which the noble Lord gave for not supporting the amendment was that the public was not yet ready for it and, for that reason, the other place would not accept it and there was no point in it passing through this House. During my reply, he said that it would be easier to reach unanimity if we could arrange a joint meeting of both Houses. That is exactly what has now happened in the sense that we have the Joint Committee on Human Rights, which includes Members from the House of Commons and the House of Lords. So far as I know, there was no dissentient voice from any Member of the Commons. Perhaps we may put that objection on one side.

Until 2003, there was no doubt that exceptional progress in prison qualified a lifer serving a whole life tariff for a review after 25 years. Somehow, that right was overlooked when the 2003 Act was being pushed through Parliament. There was no evidence that I know of that the right of review after 25 years was causing resentment or was in any way unpopular with the public. Certainly, those serving these sentences had done nothing that I know of to forfeit the right which they then had. For my part, I cannot believe that anyone in government made a conscious decision to remove this right. It seems almost inconceivable that they would have done, but there we are. All we seek to do in this amendment is to restore to these prisoners a right which they have lost, so far as I am concerned, for no apparent reason.

There are other equally strong arguments to support the amendment. Prisoners serving tariffs of 20 or 30 years are entitled to a review after they have completed their tariffs. It gives them light at the end of the tunnel and provides them with a reason for making progress if they can. In those cases, the review is justified both on practical grounds and on humanitarian grounds. Will the Minister say why those reasons precisely do not apply to those serving whole life sentences? One might think that it should apply all the more so. It cannot be that they are being deprived of this right for some symbolic reason, but if that is the case I would be very glad to hear about it.

I could understand if the Minister said, like the noble Lord, Lord McNally, that this amendment would never be accepted at the other end of the corridor, but I would have no sympathy with him at all if he said that we should wait until the Supreme Court has decided the appeal in McLoughlin. The decision in Vinter is clear: a life prisoner is entitled to know at the start of his sentence what he has to do to qualify for a review after 25 years. It is equally clear that exceptional progress in prison would be a qualifying ground. But Section 30 of the 1997 Act provides that a prisoner can be released only on “compassionate grounds”. A prisoner who has earned his review by making exceptional progress is not being released on compassionate grounds in any ordinary sense of that term. Whatever the Supreme Court may say, we will need primary legislation to change the word “compassionate” or make clear what the word “compassionate” means. I would have thought that we would need a different word or an additional word. That will require primary legislation. I see no reason to wait until the Supreme Court has expressed a view. Indeed, if we had the primary legislation now, maybe there would be no need for a hearing at all. We should, in my view, grasp the nettle now. That is why I support the amendment.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I add only this to the point made by the noble and learned Lord, Lord Lloyd, in answer to my noble friend Lord McNally’s response. Not only is the Joint Committee on Human Rights composed of Members of both Houses, but members of all parties agreed unanimously on this report. My reasons for supporting the amendment are threefold. First, it is a matter of simple humanity. Secondly, I agree again with my noble friend Lord Lester and the noble and learned Lord, Lord Lloyd, that I do not believe the decision of the Court of Appeal in McLoughlin has put the current position in English law beyond doubt in the light of the clear decision of what is required by the Grand Chamber of the European Court of Human Rights in Vinter. In any event, it is for Parliament to make the law clear on this issue. Thirdly, our obligation to honour our treaty commitments is an absolute one that must not be shirked.

My first point is the point of substance, independently of the convention: a whole life tariff without the prospect of review is incompatible with a humane approach or human rights-based approach to punishment. I remain firmly committed to the principle that one of the primary purposes of punishment is rehabilitation. This is embodied in statute law by Section 142 of the 2003 Act, which is the very Act on which whole life sentences are based. That provides, under the heading “Purposes of sentencing”, that:

“Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing”,

the third of which is;

“the reform and rehabilitation of offenders”.

The imposition of a whole life order without any hope of release on rehabilitation grounds is incompatible with that statutory purpose of sentencing. It does not follow that a whole life tariff cannot be imposed by the sentencing court, but it does follow that, when sentencing, a judge should know and the offender should know that there is some prospect at least that in exceptional circumstances there will be a power to enable the offender’s release other than on purely compassionate grounds. Of course, it is understandable that in the case of the most heinous crimes the purpose of rehabilitation comes low down the list, but the absence of any possibility of review except on compassionate grounds, interpreted in the “Lifer Manual” as being, effectively, only in the case of terminal illness, removes hope completely in a way that is inhumane.

My second point is one that has been made: that the judgment of the Grand Chamber in Vinter was unequivocal. The court was absolutely clear that the effect of such an order is that a prisoner cannot be released other than at the discretion of the Secretary of State. I urge on the House the point made by the noble Lord, Lord Pannick, that the Secretary of State should not be the decider. There should be an independent body. That release would occur only on compassionate grounds under our statute. The court therefore held that a whole life order of imprisonment violated Article 3, which prohibits inhumane and degrading treatment and torture.

The United Kingdom judge, Judge Mahoney, emphasised that states were free to choose the means whereby they fulfil their obligation to “abide by” the Grand Chamber’s judgment in relation to Article 3. The Court of Appeal’s decision in McLoughlin leaves the position unclear, because the Court of Appeal appears to have held that the existing law permits release on other than compassionate grounds, contrary to the statute and to the finding of the European Court of Human Rights in Vinter. Whatever the Supreme Court may or may not do with McLoughlin, it is, I suggest, now for us in Parliament to make it clear what the law is in this crucial area and to do so in a way that unequivocally honours our treaty commitments.

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Moved by

[Lord Lloyd of Berwick]

17: Clause 9, page 10, line 12, after “prisoners),” insert—
“(a) after subsection (2) insert—“(2A) Without prejudice to the powers of the Secretary of State under this section, the Parole Board must direct the release on licence of IPP prisoners with a minimum tariff of less than two years.”,”

[Lord Lloyd of Berwick]

My Lords, this amendment concerns prisoners serving indeterminate sentences for the protection of the public under Section 225 of the Criminal Justice Act 2003. The section was repealed in 2012, but there is a backlog of some 5,200 prisoners still serving sentences under it, of whom 3,600 have passed their tariff. At the present rate of release, which is running at about 400 a year, it will be nine years before those 3,600 will be out of prison.

This amendment concerns a particular group of prisoners who were given short or very short tariffs between 2005 and 2007, before the 2003 Act was amended. There are 773 of them. There is also a smaller group who were given tariffs of less than two years after the Act was amended in 2007 and are serving their sentences under different provisions, but this amendment is not intended to affect them. There are good reasons for distinguishing between these two groups: first, the 773 to whom I have referred have been in prison much longer; secondly, we know more about them; and thirdly, and most importantly, they were sentenced before the Act was amended, when judges had no real discretion as to the sentence. They were bound to assume dangerousness if certain conditions were fulfilled and were bound then to impose an indeterminate sentence. The word was “must” and not “may”.

I have a breakdown of how long the 773 have already been prison. It is dated March 2013, and they have of course spent a further 15 months in prison since then. On that basis, 275 of them are now more than six years over tariff, 291 are more than five years over tariff and 198 are more than four years over tariff. I remind noble Lords that these are all prisoners who were given tariffs of under two years, some as little as nine months or even less. I will give your Lordships examples of the sorts of offences that these prisoners committed. In April 2005, Mr Lee was given a tariff of nine months for criminal damage to the flat in which his former wife and children were living. In November 2005, Mr Wells was given 12 months for attempted robbery of a taxi driver. In November 2005, Mr James was given a tariff of two years for unlawful wounding with intent. As it happens, all those three prisoners have since had a successful appeal to the European Court of Human Rights, and I mention them only as examples of the sorts of offences—run-of-the-mill offences, your Lordships may think—which these short-tariff prisoners committed.

I turn to Section 128 of LASPO, which is referred to in Clause 9(3). When Parliament repealed Section 225, it was well aware of the backlog to which I have already referred, so it provided the Lord Chancellor with a power to alter the release test for those prisoners. It need no longer be the same as the release test for life sentence prisoners, nor need it depend in any way on an assessment of risk. It must be obvious, therefore, that Parliament gave the Lord Chancellor those powers in order to speed up the release of those prisoners and so reduce the backlog. It could have been given for no other purpose. But the Lord Chancellor—unfortunately, in my view—has declined to exercise that power.

The reason he gave in February 2013 was that it would not be right to interfere with the decisions of judges, who would have taken risk issues into account. But that reason has no validity at all in relation to the group of 773, since, for the reasons I have mentioned, their sentences were imposed when judges were obliged to assume dangerousness. In any event, when it enacted Section 128 of LASPO, Parliament must have intended the Lord Chancellor to interfere with the sentences imposed by judges; otherwise, what purpose did Section 128 serve?

The second reason given by the Lord Chancellor is that it would be irresponsible, indeed inconceivable, for him to release prisoners whom the Parole Board has assessed as continuing to pose risks. But again, that was surely the whole point of giving him the power to alter the release test. Is it to be said, therefore, that Parliament was being irresponsible in giving the Lord Chancellor that power?

Finally, there is the reason given by the Minister in his letter of 30 April. He said that Parliament did not instruct the Lord Chancellor to change the release test; it gave him discretion to do so. Of course that is true but it is well settled that, where a discretion is given by Parliament, it must be exercised so as to promote and not frustrate the purpose for which it was given; that is a principle that I know my noble and learned friend Lord Brown of Eaton-under-Heywood will develop further. The Minister gave as the reason for not changing the release test that it would not reduce the risk to the public. Of course it would not reduce the risk to the public but that was not the purpose for which the power was given. The purpose, I say again, was to speed up the release of those prisoners, not to reduce the risk.

I suggest that the Lord Chancellor must give better reasons than these for not exercising the power that he has been given. If the real reason is that the release of those prisoners would not go down well with the public, he should give that as the reason openly and then it can be tested, if necessary in court. It would have been far better if the Lord Chancellor had exercised the power he has been given but he has not. The purpose of this amendment is simply to give the Lord Chancellor a gentle push in the right direction.

Of course, I accept that some of those with tariffs of less than two years will be more serious cases than others, but there is one thing that they all have in common. We know for certain the sentence that they would have been given if the IPP sentence, now abolished, had never been invented: they would have been given determinate sentences equal to twice the length of their tariffs. We know that, because that is how the judges fix the tariff in the first place; that is, at half the appropriate determinate sentence. Indeed, one way of dealing with the backlog would be, in the case of short and medium-tariff prisoners, simply to substitute determinate sentences of twice the length of their tariff.

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[Lord Faulks]

I am not aware of the question of lie detectors and whether or not they are used. I will write to the noble Lord when I have some information about it.

Measures have been taken to ensure that programmes can be delivered more flexibly, supporting greater access and inclusion, including offenders with complex needs, as I was indicating. I was asked about the case of James, Wells and Lee. The noble Lord, Lord Wigley, pointed out that the decision was that the retention of those prisoners was contrary to Article 5.1 and was therefore an arbitrary detention. I dare say that he will know, from having studied the decision, that the European Court of Human Rights did not hold that the sentence itself was unlawful. It was the unavailability of courses that was considered to be a breach of Article 5.1. I am sure the noble Lord would accept that it is simplistic to suppose that attendance at a course would automatically result in someone being appropriate for release. Clearly, it is carefully managed to ensure that so far as is possible those courses are reached. Those who attend the courses will not necessarily be eligible for or suitable for release. Equally, some who do not will be. However, I accept it is a matter of considerable assistance.

As the noble and learned Lord, Lord Brown of Eaton-under-Heywood, said, the construction of a statutory duty is a matter of the purpose as construed on examination of the relevant statute. In response to a debate about this section, the Lord Chancellor’s predecessor, Kenneth Clarke, said that he would look at progress after the LASPO changes had taken effect. I mentioned earlier that the rate had increased. The position is—I am afraid this is more or less the same answer that I gave in the debate initiated by the noble Lord, Lord Wigley—that there are no current plans to review the release test for prisoners serving IPP sentences whose minimum term has expired, although we continue to use a range of measures to improve their progression and reduce the risk that they pose. The Government’s position is that it is right that IPP prisoners continue to serve their sentence until they are assessed as safe to be released into the community by the Parole Board. The Government were left with this rather crude device by the previous Government. They repealed it, but none the less they have to be extremely mindful of what lay behind the introduction of this provision; namely, the protection of the public. I accept that there is great concern that those who would have received a lower tariff sentence might seem on the face of it to be languishing in prison for far too long. However, there are factors which I have attempted to draw to the Committee’s attention which do not, in the view of the Lord Chancellor and the Government, warrant a change of approach to that discretion.

Of course, it is a matter of anxiety. While others are attending the opera, I am—as the noble Lord, Lord Wigley, would have it—having sleepless nights. However, the duty of the Government remains to protect the public, notwithstanding the persuasive arguments that have been put forward by noble Lords. I ask the noble and learned Lord, Lord Lloyd, to withdraw the amendment.

[Lord Lloyd of Berwick]

Will the Minister explain why releasing these people now would present any greater risk than that they would have presented if they had been given determinate sentences back in 2005?

[Lord Faulks]

They did not receive determinate sentences. With great respect to the noble and learned Lord, it is a hypothetical question because the sentence they received was not a determinate sentence; it was a sentence for the protection of the public. It is therefore the Government’s case that they have to proceed with caution using the processes which exist via the Parole Board to ensure that, before somebody in that position is released, the public are safe so far as reasonable precautions can be taken.

[Lord Lloyd of Berwick]

First, I must thank those who have supported this amendment so effectively, as it seems to me, and say a particular word of gratitude to the noble Lord, Lord Wigley. How good and refreshing it is to hear from a layman, especially one who is able to speak with a certain passion, which we lawyers try to keep in control. It was a very effective contribution.