Imprisonment for Public Protection (Re-sentencing) Bill [HL]

Lord Moylan Excerpts

2nd reading
Friday 15th November 2024 Lords Chamber

[Lord Moylan (Con)]

My Lords, I am grateful to the noble Lord, Lord Woodley, for bringing forward this Bill. I am conscious that one of the obligations on us in this House is not to raise expectations falsely among prisoners and their families as to what is likely to be achieved. We have heard many passionate speeches in favour of the resentencing proposed in this Bill. We are about to hear one—possibly two—speeches putting the case against resentencing. The last of those will be determinative. The Government are not going to agree —they have made that clear—to a resentencing exercise. They say that, for those who are out on licence, the measures passed in the Victims and Prisoners Act, which had cross-party support—proposed by a Conservative Government and now implemented by a Labour Government—should deal with them in the next couple of years, and the issue should go away.

The question is about those in prison. For them, there is the action plan. I have a degree of confidence in the action plan—in both the officials behind it and the plan itself. I think there is a seriousness of purpose and intent on the part of Ministers and officials in making this work. An annual report will be published shortly, and I am sure we will have an opportunity—we should have an opportunity at least—to debate it in this House when it appears and hold the Government to account over the action plan.

The difficulty is that, although the action plan will push ahead and, I imagine, secure the release of those IPP prisoners with whom it is easy to engage, there will still be a residue. There will be a number of IPP prisoners whom it is going to be very difficult for the Parole Board to recommend for release. I want to think ahead to what we should be doing, thinking and discussing about those people. They could potentially, if nothing is done, remain in prison for the rest of their lives, not because of the crime they committed but because of the position—often damaged by mental health issues—they are in today.

One thing worth asking about them is why they should continue in prison at all. Why are they part of the prison system? In so far as they were in prison in the first place as a punishment, that punishment has been discharged and served; they are way beyond tariff. Many of them are in secure mental hospitals. Maybe a mental health setting would be more appropriate for many of these people. It is not easy to get into a mental health hospital if you are in prison—it is a little bit like that joke in “The Importance of Being Earnest” that you cannot get into Wandsworth prison after 4 pm; it is very difficult to get into prison. It is difficult to get into a mental health institution. Should we make it easier, or should we establish a single location—perhaps using part of the underoccupied open prison estate—where those prisoners who do not qualify for mental health hospitals could be brought together? The curative powers of the Probation Service and the Prison Service could be brought to bear on them to help them get out, rather than being left in a prison context.

Time has run out, so I simply put that thought there and I hope the Minister might be able to respond. If he cannot today, could he at least give us some assurance that he will give thought to issues like that? This potentially quite large number of people who might never be released under the existing system deserve thought now. If resentencing is not on the cards, something along these lines should be considered.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to the noble Lord, Lord Woodley, for introducing the Bill and enabling the House again to focus again on this important topic. We have heard many insightful and well-researched speeches. This is a tragically long-standing issue—I dealt with it when I was a Minister, and I remain grateful to the noble Lord, Lord Blunkett, in particular, and others, for the time they spent with me on the matter then.

You could make two speeches this morning from the Opposition Front Bench. One would be overtly political: it would say that IPP sentences were introduced by Labour and were and remain a disaster. It would say that this problem was created by a Labour Government, and it is up to this Labour Government to sort it out. It would say that we do not need more criminals on our streets. All of that would be true, but it is not the speech I propose to give. I will instead focus on what we can actually do, practically, to resolve this problem, and on what I regard as the real issues.

As the noble Baroness, Lady Blower, reminded us, the previous Lord Chancellor, Alex Chalk, who did so much good work in this area, called the present state of the IPP issue a

“stain on our criminal justice system”.

The same phrase, cited by my noble and learned friend Lord Garnier, was used by the much-missed noble and learned Lord, Lord Brown of Eaton-under-Heywood, and they were both right. So I propose to look at the problem, look at how we can improve the position, and set out the response of the Opposition Front Bench to this Private Member’s Bill.

There are two important facts to begin with. First, IPP sentences were abolished by the then Conservative Government in 2012—the Lord Chancellor was the noble Lord, Lord Clarke of Nottingham. As the noble Lord, Lord Carter of Hazelmere, pointed out, the problem was that no transitional provisions were put in place. That happened 12 years ago, which is relevant—I will come back to that. Secondly, just under 1,100 IPP prisoners have never been released on licence and a further 1,600 or so were released on licence but have since been recalled to prison. Those two facts, taken together, remind us of the following points, which must be kept in mind as part of the debate.

First, those still in prison and who have never been released on licence were sentenced over 12 years ago. During that time, they will have been prepared for and attended several Parole Board hearings, and the Parole Board, which is independent and expert, will have concluded, on all the material before it, that it was not safe to release them. Secondly, for those prisoners and those released on licence and then recalled—again, because they were originally sentenced at least 12 years ago—unless their underlying crime was one of considerable seriousness, a resentencing exercise, even if it were possible, would likely result in their immediate release. Putting those two points together, that means that a resentencing exercise would likely result in the immediate release into the community of people whom the Parole Board had recently decided were still dangerous and should not be released. I suggest that we cannot easily contemplate that.

I will add a third point: a resentencing exercise would be logistically and practically difficult, not only because of the impact on judicial time but, more importantly, because of the fact that, in some—or perhaps many—cases, the underlying paperwork is unlikely to be available in full. Therefore, I suggest that a resentencing exercise, which is at the heart of the Bill, is not the answer—my noble friend Lord Moylan therefore correctly anticipated the position of the Opposition Front Bench. But that means that we need to identify what the answer is, because doing nothing is simply not an option.

Let me sketch out some principles. First, the focus must be on two separate groups. For the first group—those who have never been released—the focus must be to get them successfully through a Parole Board hearing. For the second group—those who have been released on licence—the focus must be to make sure that they are not recalled to prison or, if they are, to enable them to do better next time they are released: to get out and to stay out.

Secondly, we need to be clear-eyed about who we are dealing with. There is sometimes a tendency to assume that people did little more than steal a Mars bar and were just unlucky to receive an IPP sentence rather than a traditional determinate sentence. In fact, to have been sentenced to a IPP sentence in the first place, the trial judge must have concluded, under Section 229(1)(b) of the Criminal Justice Act 2003, that there was

“a significant risk to members of the public of serious harm”

were the defendant to commit further offences—and not just any further offences. There was a list of specified offences in a schedule to the Act, including rape, murder, GBH with intent and so forth. In other words, the trial judge will have found as a fact that there was a significant risk of the offender killing, raping or seriously maiming someone else. That was the statutory test of dangerousness, which was a legal threshold to being given an IPP sentence in the first place.

[Lord Moylan (Con)]

I interrupt with trepidation, because my noble friend is such an excellent lawyer, and I am not a lawyer at all. However, am I not right in saying that, while that test did exist, it existed only in the second period when IPP sentences were imposed? It was very much a point of the late Lord Brown of Eaton-under-Heywood that in the early years of the IPP sentence judicial discretion was almost nil, and the finding of fact was simply a matter of asking, “Have you committed this offence and previously committed another?”, both taken from two separate lists. I am not sure that all the prisoners who are still in jail and who have never been released would be covered by the point that my noble friend makes.

[Lord Wolfson of Tredegar (Con)]

My noble friend is absolutely right. I cannot get into all the detail because of time, but for those sentenced even earlier, in the first period, unless the underlying crime was really serious, you end up with effectively immediate release, in respect of people who have been determined by the Probation Service to still be dangerous. That is a real underlying problem.

That leads me to the third point, perhaps the most tragic in the entire debate. We have to confront the possibility, or probability—this is a terrible stain on our state—that for some people now in prison under an IPP sentence the reason they cannot effectively be released, and the reason they are failing Parole Board hearings, is because they have been in prison so long. They have become institutionalised. I am very sorry to say it, but it is a Kafkaesque situation—if Kafkaesque is the right word—and a stain on our justice system, but we have to be clear-eyed about the position that we are dealing with.

As we know, this matter was looked at by the Justice Select Committee under the chairmanship of Sir Bob Neill. I am pleased to say that he is now, and deservedly so, Sir Bob Neill KC. The committee made two main recommendations. The first was on resentencing, which I have dealt with—and, with respect, we disagree with the committee on that point. Secondly, it suggested that the licence period be reduced—and here we are in full agreement. The old position was that you could not even apply to terminate the licence until a decade had passed. The committee recommended a reduction of the licence period to five years, while Lord Chancellor Chalk reduced it to three years, and added a presumption that it would lapse at the end of three years, unless there was a good reason to extend it. For those recalled to prison, he introduced a two-year licence period for those released after that initial recall, with an automatic lapse after two years, not a presumption. That structure is the best way in which to deal with this issue.

Lord Chancellor Chalk went further. He set in place programmes to encourage prisoners to be prepared well for the Parole Board hearings, and I would be interested to hear from the Minister about the work ongoing in relation to that—because that is the key to getting someone out on licence in the first place. He also introduced automatic referral to the Parole Board so that prisoners do not need to apply for release, but rather the case automatically comes before the Parole Board.

This is about balance between protecting the public, which any Government need to have at the forefront of their mind, while making sure that those subject to an IPP sentence are fairly dealt with. That means that we need to ensure that we do not release dangerous people into the community, but it also means that those who have been released and are no longer dangerous should not live with a sword of Damocles above their heads.

It is sometimes pointed out that those released on an IPP licence can reoffend. The truth is that lots of our released prisoners reoffend, and I would be interested to hear from the Minister, either now or perhaps in a letter, with a comparison of the rate of reoffending of IPP prisoners with those released under other provisions. I would be especially keen to see the data comparing the reoffending rate of IPP prisoners released on licence to the reoffending rate of those released under the early release scheme introduced by the Government early this year, of which we have had not very much data. In due course, I would be interested to see that comparison, because I would not want IPP-released prisoners to be unfairly stigmatised when, in fact, we have a significant reoffending rate for prisoners generally.

I look forward to the Minister’s speech. We will support him in steps to ensure that those still subject to IPP sentences, those in prison, on licence, and on recall receive all the assistance they need.