King’s Speech

Lord Macdonald of River Glaven Excerpts

Wednesday 8th November 2023 Lords Chamber

[Lord Macdonald of River Glaven (CB)]

My Lords, I first got to know Lord Judge well when I was a pretty raw and inexperienced DPP and he became president of the Queen’s Bench Division and head of criminal justice in the Court of Appeal. He was kind, wise and, where necessary, sympathetically firm. These were wonderful qualities in a judge, a Lord Convenor and a friend. I also congratulate the noble and learned Lord, Lord Burnett of Maldon, on his maiden speech. I am sure that his contributions to your Lordships’ House will be important and necessary in the years ahead.

From time to time, both major parties have played their part in an arms race in criminal sentencing. They sometimes seem to want to outbid each other in sentencing policy, no doubt in the belief that this is worth votes. They may, of course, be right about that, but it is surely the role of Governments and Oppositions to sometimes lead and not simply follow. This is particularly true on questions of public policy, where the public mood may not always coincide with what is best. This is an aspect of representative, rather than delegative, democracy.

Everyone involved in British penal policy knows that incarceration is horrendously expensive, that much of the prison estate is crumbling through lack of investment, that inspectors’ reports on prison conditions are frequently a national embarrassment, and, perhaps worst of all, that recidivism rates are appalling and not improving. The figures no doubt reflect, in part, the inadequate provision of rehabilitative schemes. The Government are prepared to grow the prison population by increasing sentences, reducing parole and restricting remission, but they are not prepared to pay for a sufficient increase in prison places to accommodate these policies, for the necessary improvements to the prison estate or for proper rehabilitation to minimise reoffending. In the end, all of this hurts the public.

Perhaps recognising this failure in joined-up policy-making, the Government’s 2021 spending review promised 20,000 new prison places. But by June of this year, only 5,200 of these places had materialised and, according to the Ministry of Justice, we will have just 8,200 by May 2025. The full 20,000 will not be on stream until 2030—if we are lucky. One project has apparently been delayed by the discovery of a badger sett.

In the face of this, our prison population reached over 86,000 in February this year, the highest in western Europe. It is projected to rise to over 94,000 by March 2025, and we are told that it could reach over 108,000 by 2027. As Sir Bob O’Neill, the respected Conservative chair of the Commons Justice Committee, has said, you cannot keep trying to squeeze a quart into a pint pot.

The result of this dispiriting cycle of poor public policy is disgraceful prison conditions almost designed to perpetuate criminal behaviour, ad hoc early release schemes, frankly embarrassing threats to decant British prisoners to jails abroad, and, perhaps most undignified of all, judges having to delay sentencing hearings so that convicted people on bail will not have to be sent to over-capacity prisons just yet.

It should not be beyond the capacity of the British state to design a penal policy that tends towards rehabilitation, that does not rely on emergency release schemes, that does not force us to pay other countries to house our convicts, and that allows judges to get on with the business of dispensing timely justice.

I strongly welcome the brave and sensible approach the Secretary of State has taken to less serious offending and his proposal to reduce—I hope drastically—the number of people sent to prison on short sentences that allow no time for rehabilitation and for which rates of recidivism are so high. However, I am concerned about proposals to abolish remission altogether for certain categories of serious crime, for two reasons. First, remission works as an essential form of behaviour control, particularly in crowded, understaffed prisons. This policy will make the already difficult task of prison staff harder and more dangerous still. Secondly, there is no doubt that this dam, once breached, will breach again. I predict that, if the Government pursue this, the categories of offence with no or reduced remission will grow and the prison population will ramp up.

Finally, what is proposed on whole-life sentences is a very significant change that will greatly increase the number of prisoners serving whole-life terms in our prisons. Can the Minster tell us whether the Government have calculated by how many, or what the impact on prisoner management might be?

It is no insult to the victims of crime to acknowledge that there is a hierarchy of evil in criminal conduct and that whole life has always been reserved for the very worst crimes. The murderer of Zara Aleena, whose sentencing may have played some part in this proposal, committed a terrible crime, and her bereaved family have behaved with extraordinary dignity ever since. In the end, the Court of Appeal decided that the killer deserved a minimum sentence of 33 years but, as the Lady Chief Justice pointed out, that does not mean he was getting a sentence of 33 years. His sentence was life. It simply meant that he was being told that he must serve at least 33 years before he would even be considered for parole. Thirty-three years is a severe penalty, yet the reality is likely to be much harsher.

It is widely recognised by commentators of all political persuasions—indeed, it has become a commonplace observation—that some of these criminal justice proposals in the gracious Speech amount to an attempt by the Government to create political space between themselves and the Opposition in advance of next year’s general election. That is a depressing way for the Government to steward criminal justice.

Police, Crime, Sentencing and Courts Bill

Lord Macdonald of River Glaven Excerpts

Report stage
Wednesday 12th January 2022 Lords Chamber

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

My Lords, I too support this proposal. The objectives set out in each of the paragraphs (a) to (h) of proposed subsection (2) of the amendment are plainly and urgently needed. It should not be necessary to establish a royal commission to focus on, pursue and achieve these objectives, but plainly it is necessary. These deficiencies have been identified, recognised and discussed for years but, as for getting anywhere in terms of achievement—on the contrary.

The main parties on both sides of the House, not least this Government, seem ever more intent on winning the law and order vote. Sentences are being increased; minimum and mandatory terms are being imposed. We now need the impetus, the force, of no less than a royal commission to start to recognise the intense problems of our whole penal system and to start to set the matter right.

[Lord Macdonald of River Glaven (CB)]

My Lords, I do not regard the United Kingdom’s place at the top of the incarceration league table for western European countries as a badge of honour. It seems to me that this fact in itself calls for a broad strategic view of how sentencing is working in this country and why it is that we send so many more people to prison than other countries do.

One of the issues seems to be that criminal justice, particularly sentencing, has become a political football. A sort of auction has been going on between the main political parties over the last 20 years or so to discover who can present themselves as the toughest on this issue. I do not mean to minimise the effect of crime on victims or on society as a whole, but short sentences in particular are surely counterproductive. The best way to school a young man in crime and anti-social behaviour is to send him to prison for three or six months.

It seems to me that one of the great possible achievements of a royal commission would be to take some of the political sting out of this issue and to inject some rationality and even some science into it. I strongly support the amendment.

[Lord Bach (Lab)]

My Lords, may I ask the Minister a question? A few years ago, when I was a police and crime commissioner, it came across our desk a lot that it was government policy to have a royal commission on the criminal justice system. What has happened to that proposal? Is it still there? Is it still the Government’s hope to do that? If it was, I would be very much in support of it. If it is not, I very much support the amendment that the noble Lord, Lord Marks, has moved.

Police, Crime, Sentencing and Courts Bill

Lord Macdonald of River Glaven Excerpts

Lords Hansard - Part 1 & Committee stage
Monday 15th November 2021 Lords Chamber

[Lord Judge (CB)]

My Lords, I find myself in a puzzle. The Government of the noble Lord, Lord Blunkett, and the noble and learned Lord, Lord Falconer, who introduced this form of sentence, have indicated that they would not have introduced it if they had known how it would work. A different Government, the coalition Government, of which the present Government formed the majority, saw the iniquities of it and Parliament got rid of it. Therefore, we now have a strange system. We have people in custody under the old system and people with the same record, the same problems, the same issues arising, who are not subject to the same sentences as each other. That seems rather strange, but in terms of an Act of Parliament, it is an utterly illogical situation for the Government now not to at least address the consequences of the sentence having been abolished in the 2012 Act.

Quite rightly, that was not made retrospective. I see that retrospectivity must be avoided, but we have been going on with the sentence that has been abolished for eight or nine years now. We all know that something must be done. I am not making a personal comment about the Minister, but everybody knows that it must be done, including Ministers in the Home Office and the Ministry of Justice. We must do something about it, in fairness and logically.

I added my name in support of the amendment tabled by the noble and learned Lord, Lord Brown, but all these amendments are asking one simple question: “You must do something, so will you now tell us what it is?” It is no good us being in a situation where “Something must be done” when “What is going to be done?” is the real question.

[Lord Macdonald of River Glaven (CB)]

My Lords, I hope that the Minister can acknowledge that this is one of those comparatively rare occasions when noble Lords from all parties and none and from across the House have come together in the face of overwhelming evidence that a great public policy, in this case a great criminal justice policy, has gone disastrously wrong. It is beyond argument that IPPs have resulted in periods of incarceration out of any reasonable proportion to the gravity of the original crimes for which they were imposed. That is wrong. It is beyond any reasonable argument that these sentences are beyond any proportion to the risk that continues to be represented by any of the offenders to the public. That is wrong. There is the strongest evidence before the Government that IPPs are observably responsible for persistent and continuing injustice. The noble Lord, Lord Hunt, spoke very movingly about the reality of those injustices for those who are suffering under them.

I declare an interest as president of the Howard League and in doing so repeat what a number of noble Lords have said about the contribution made by Frances Crook. She has been a monumental figure in criminal justice, which is better today for her work than it would have been without it. The Government now have an opportunity to make a startling improvement to our criminal justice arrangements by the simple expedience of doing away with IPPs in their entirety; I agree with the noble and learned Lord, Lord Garnier, in this respect. The evidence could not be clearer. I support all these amendments and urge the Government now, in the face of this overwhelming case, to act.

[Lord Pannick (CB)]

My Lords, I hope that when the Minister responds to this debate, he can put away the departmental brief and respond to two simple questions. The first is whether he accepts that the present system is unacceptable. The second, which the noble and learned Lord, Lord Judge, posed, is: what will the Government do about it? This is not a new problem. The Government have had years to think about the options and to consider what to do. The noble Lord is already a very distinguished Minister of Justice. Can he say what the Government will now do to address a manifest injustice?

Domestic Abuse Bill

Lord Macdonald of River Glaven Excerpts

Committee stage & Committee: 5th sitting (Hansard) & Committee: 5th sitting (Hansard): House of Lords
Monday 8th February 2021 Lords Chamber

[Lord Lucas (Con) [V]]

My Lords, I add my name to those saying that this is a change we should make, and now. I would like to be sure, which I am not at the moment, that the wording will cover an image which does not actually exist but is merely asserted to exist. On some of these occasions, a recording will have been made or said to have been made without the victim’s knowledge, but she may well believe that the allegation is true because it is a believable one. Under those circumstances, it should be clear that this offence is activated. I would also like to understand better how one can consent to a threat. If it is a threat, what does consent look like? What would it take for someone to consent to a threat? How would that be phrased; how would it work? Is “publish and be damned” consent? If not, what would be?

[Lord Macdonald of River Glaven (CB) [V]]

My Lords, I am grateful to the noble Baroness, Lady Morgan, for putting down this amendment, which I strongly support.

One way to judge the gravity of a crime is to assess the anguish it brings to its victims. Usually, this emotional suffering comes as a by-product of, say, physical harm or financial loss. However, sometimes the creation of anguish is deliberate, the whole point of the crime, and a source of great satisfaction to the criminal. It is perhaps no surprise that our courts have reserved special condemnation for those responsible for this sort of behaviour. In 2015, amid mounting evidence of a growing problem, the Government decided to tackle the ugly phenomenon of so-called revenge porn: the sadistic online dissemination without consent of sexually explicit photos and videos, usually of young women, and usually by disgruntled former boyfriends. Ministers recognised that this behaviour is particularly nasty because it targets the most private and personal aspects of life, exploiting intimacy to create ridicule, contempt and public shame. Indeed, each of these emotions is precisely what is intended by the perpetrator, particularly the public shaming. This conduct was thus made a crime that could lead straight to prison.

However, it is now clear that the present law does not go far enough, for what about threats to share intimate images? As your Lordships have been told, at present, these attract no criminal sanction at all, although the evidence shows that significant numbers of women and girls face this menacing behaviour.

Much has been said in this debate about the survey carried out by Refuge, the country’s largest provider of domestic abuse services. That is not surprising when the results of this survey appear to show that as many as one in seven young women in England and Wales have faced these threats.

These figures portray a world of anxiety and dread. Because most of these threats come from current or former partners, they also speak of deliberate schemes of domination and control that we should acknowledge for what they are: straightforward examples of domestic abuse. Like all crimes in this category, they gift a gratifying sense of power to the abuser, who is intent on using this power to signal the victim’s utter lack of worth.

Amendment 162 provides the opportunity to change the law to criminalise this behaviour, granting thousands of women and girls access to justice and protection—the first duty of the law. At present the Government prefer to push this issue off into the future, awaiting a Law Commission review into all forms of image-based abuse. But for all the reasons set out by the noble Baroness, Lady Morgan, people subjected right now to this behaviour should not have to wait. I hope the Government will accept what is widely acknowledged: that this is a gap in the law and the Government’s duty is to plug it without delay.

[The Deputy Chairman of Committees (Lord Alderdice) (LD)]

The noble Baroness, Lady Fox of Buckley, has withdrawn, so I call the noble Lord, Lord Russell of Liverpool.