Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Thomas of Gresford Excerpts

Thursday 9th February 2012 Lords Chamber

[Lord Blair of Boughton]

My Lords, I am probably the only person currently in the House who has actually carried out murder investigations. When you knock on the door and say you are investigating a burglary, nobody takes much interest. When you knock on the door and say you are investigating a murder, the reaction is very different. I am fully in support of the noble Lord, Lord Carlile, because murder is different. It is not just any other crime. In my opinion, it is actually the crime by which the public judge the criminal justice system.

I find myself somewhat surprised to be arguing against the noble and learned Lord, Lord Lloyd, but I think that the combination he used of sentences for murder and indeterminate sentences does not, in this argument, add up, because this is about murder. I am fully in support of almost everything the noble Lord, Lord Carlile, has said. I had expected to speak for longer; I came to the House to speak to this amendment. In fact, the noble Lord, Lord Carlile, has said almost everything that needs to be said—except for this emphasis that I would place before your Lordships’ House that murder is different. I believe that Parliament has a right—indeed, a duty—to set the tariffs from which judges then make their decisions about sentencing.

[Lord Thomas of Gresford]

My Lords, lest there should seem to be unanimity on these Benches, I support the noble and learned Lord, Lord Lloyd, in his amendment.

When I started out at the Bar, people did not plead guilty to murder at all. It was a throwback to the time when hanging was the only sentence that could be passed and therefore guilty pleas were sometimes simply not accepted and a person was told to plead not guilty so that the case could be properly proved. We have moved very far from that, to the present situation, which I find mechanistic. The gap between the 15-year starting point and the 30-year starting point is far too great, in my view. It is mechanistic in that once you get your starting point, you start to deduct for this and add for that, and at the end of the day, after this complicated arithmetic, you guess at what might possibly be the sentence and advise your client accordingly.

I do not find that a very helpful way of going about things. Today there are provisions for obtaining some guidance from the judge as to the sort of sentence he would pass in certain circumstances, and that is a better way of going. These artificial starting points of 15 years and 30 years have been laid down by people with no experience of how the courts work or how cases are brought to court, and with no personal contact with clients or anything of that sort, and are not the way we should be conducting our sentencing policy. I agree with everything that the noble and learned Lord, Lord Lloyd, has said.

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As one who was involved in the review of the parole system when the noble Lord, Lord Hurd, was Home Secretary, I have no doubt that the Parole Board would welcome this change, which after all fits in with the rehabilitation element of a sentence.

[Lord Thomas of Gresford]

My Lords, I have Amendment 179ZA in this group. The Minister can surely take pride in the abolition of IPP sentences and in the fact that he and this Government are leading public opinion in this area. The Minister suggested earlier that the Government were not given enough credit for leading public opinion, but here they most certainly are.

There were many weaknesses to the IPP regime. It was imposed in far more cases than was ever expected when the regime was introduced, but a major weakness was that a defendant, a convicted person or a prisoner had to prove a negative: that it was no longer necessary for the protection of the public that he should be confined. That was the great weakness. When he tried to prove that he could safely be released, all he could he do was produce certificates that he had completed courses from programmes that were offered to him in prison, but the second great weakness was that those programmes might not be available or a prisoner would be transferred in the middle of completing a course from one prison to another and would have to start again. That is the basic reason why people have been kept after the expiry of their tariff.

The new provision for extended sentences unhappily retains the necessity for a prisoner to prove that it is no longer necessary for the protection of the public that he be confined, so that great weakness in the existing system is being continued in the system of extended sentences.

I propose in this amendment that the whole system should be tightened up in relation to those who are beyond their tariff date and are serving at the present time. It should be tightened up to the point of becoming, for the first time, a fair system. In subsection (1) of my amendment, there is a duty on the Secretary of State to “immediately refer” the case of a prisoner who has served the entirety of his tariff to the Parole Board. That should not be a discretion; he must do it immediately. Then it is the duty of the Secretary of State—not a discretion—to release the prisoner,

“on license as soon as the Board has directed his release under this section”.

Subsection (3) attacks most directly the weakness that I described to your Lordships:

“The Board must direct P’s release unless the Board is satisfied, on the basis of clear and compelling evidence which post-dates P’s conviction, that there is a strong and immediate probability that P will commit a serious violent or sexual offence on release”.

If the tariff is 10 years, the Parole Board should look not at what happened 10 years earlier but the current situation and what sort of risk the prisoner now threatens the public with. What is the evidence that he will commit a serious, violent or sexual offence if he were released? At the moment, we ask the Parole Board to make that judgement without evidence, relying merely on certificates of programmes completed and so on. A judgment without evidence is otherwise called a guess. A person’s liberty should not be decided by how the Parole Board guesses the future.

Subsection (4) suggests that,

“where the Board has declined to direct release,”

the Secretary of State must—it is his duty to— demonstrate,

“that provision has been made for P to undergo relevant programmes”.

He must also,

“refer P’s case … at 6 monthly intervals until such time as the Board directs P’s release”.

In other words, P will not be left languishing with no programmes presented to him for an indefinite period of time. I happen to know that someone I represented has done all his programmes and got all the certificates but he is still being kept in. On what evidence has that been decided? It is just the way that the Parole Board guesses he will behave if he is released.

Most importantly, subsection (5) contains a limit—or final stop, or buffer—which means that if a person has been in prison for five years after his tariff expired he must be released in the case of specified violent offences, or after,

“8 years post-tariff custody in the case of a specified sexual offence”.

That limit for existing prisoners serving IPP sentences is based on the limit contained in the new provisions for an extended sentence. That limit—or final stop, or buffer—is put into Clauses 115 and 116.

Grouped with this are my Amendments 179BZA and 179BZB, which attempt to amend Clause 116 to introduce, again, the need for,

“clear and compelling evidence … that there is a strong and immediate probability that P will commit a serious violent or sexual offence on release”,

for the Parole Board to refuse to allow him to be released when his tariff has been fulfilled. Similarly, Amendment 179BZD indicates exactly the same provision.

This is an extremely important matter. More than 3,000 prisoners are still held after the expiry of their tariff. We cannot abolish IPP sentences and allow them to remain in prison indefinitely.

[Lord Ramsbotham]

My Lords, I entirely agree with what the noble Lord, Lord Thomas, said about congratulating the Government on introducing change. I have to admit that, along with many others, I have hated IPPs ever since they were introduced by the Criminal Justice Act 2003.

Of course there are people from whom the public must be protected, some of whom have been awarded sentences of natural life. I freely admit that all is not well with the release of prisoners about whose risk of committing violent or sexual offences prison governors feel uneasy. Yet I knew of the inability of the Prison Service to provide sufficient offending behaviour programmes for those who require them. Also, 60 per cent of lifers serving determinate sentences are already one year over tariff, mainly because of the inability to satisfy what the Parole Board requires before sanctioning release, so I simply could not see that such an ill thought through introduction could result in anything other than the prison population being needlessly increased by a steadily increasing number of those whose release date was deliberately made uncertain.

Cynically, having become used while Chief Inspector of Prisons to Home Office Ministers and officials living in a virtual criminal justice system and being unwilling to accept objective advice based on facts, I feared that no notice of any outsider warnings would be taken—and how right I was. Since then, attempts have been made in this House to alleviate the IPP problem by raising the minimum tariff threshold, but the numbers of those above the original ministerial forecast and those who have exceeded their tariff already have continued to grow.

I was therefore delighted to hear the Secretary of State announce that IPPs were to end and see that confirmed in Clause 113. However, as the noble Lord, Lord Thomas, has stated, the Government have not said that they intend to alter the arrangements for those currently serving IPPs to earn their release, which will mean that such prisoners will continue to clog up the overcrowded prisons for years to come unless something is done. My amendments, and those to which I have added my name, are designed to end this situation as quickly as possible, in line with the Government’s aim of reducing the size of the prison population.

Before I speak to the amendments, I beg the indulgence of the House while I say something about some of the residual effects of indeterminate sentences, because they must not be disregarded when any meaningful consideration of the problem is taken. Prisons are fragile places in that, to work effectively, they depend on relationships of mutual trust, if not affection, between staff and prisoners. Let those break down and you are in trouble, which is precisely why it is so important that numbers of prisoners are kept as low as possible and that our understaffed and overcrowded prisons are looked at very carefully. As chief inspector, I introduced what I called the healthy prison test, in which I asked whether everyone felt and was safe, whether prisoners were treated with respect as fellow human beings, were enabled to improve themselves by access to purposeful activity and were enabled to prepare for release and maintain contact with their families.

IPPs fail every test on every account. The uncertainty that they introduce has encouraged too many of those awarded IPP sentences to take their own lives, and has also brought on much mental distress. It is inhuman to award anyone a sentence of 99 years, which is how indeterminate sentence length is described on the internet, when the prisoner does not know how or when he may qualify for release. It is patently wrong for release to be dependent on courses and programmes that simply are not available. I have lost count of the numbers of letters of complaint that I have had from families who simply do not know when their relative or loved one can qualify for release. In other words, IPPs have been an obscene, inhuman and expensive disaster.

My amendments are in two parts. Amendment 180 links with Amendment 179, tabled by my noble friend Lord Wigley, in that it seeks to establish a proper end game to the issue through a statement from the Secretary of State that individual plans have been made for the release of all those currently serving IPPs. I am not suggesting that all IPP prisoners should be released in three months, but that plans should be made in that period. For them all to qualify for that release, plans must ensure that those qualifications are both available and satisfied. Urgent plans must be made for the release of the 3,750 prisoners who are already over their tariff, which I accept will demand much detailed work, and probably resources.

However, urgent remedial action is required to put right a situation that should have never been allowed to develop, before it costs the taxpayer yet more millions of pounds. In saying this, I am conscious that the Parole Board, under its excellent chairman Sir David Latham, is already under extreme pressure, and that any alteration to current arrangements, such as the introduction of six-monthly reviews, would need to be very carefully considered because, at present, it would be unworkable. I know that Sir David is sympathetic to any proposal intended to produce release as soon as possible after tariff expiry, but it must be realistic. In the best interests of the Parole Board, therefore, and of enabling the Prison Service to better direct the use of its limited resources towards protecting the public by preventing reoffending, there is all the more reason for coherent planning of this release process.

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[Lord McNally]

I am sure that my noble friend’s comments will be noted in the proper places, particularly at reshuffle time.

There will always be debates about whether or not sentences are deterrent. I am not usually in favour of mandatory sentencing and deterrent sentencing, but it is hard to deny that deterrent sentencing could have an effect. It is not just a matter of some barrack-room lawyer; a hardened criminal would know the consequences of reoffending. I share a lot of the concerns about putting declaratory sections into Bills, but sometimes they have their place.

This clause introduces a new mandatory life sentence for an offender who has committed a second very serious sexual or violent offence. Both offences must be so serious as to merit a determinate sentence of 10 years or more. The offence must also be contained in Schedule 15B to the Criminal Justice Act 2003, which is inserted by Schedule 16 to this Bill. Schedule 15B contains the particularly serious offences that were in Schedule 15A to that Act. Previous Schedule 15A convictions make offenders eligible for IPPs and EPPs even if they have not reached the two-year tariff threshold. Schedule 15B also includes further child sex and specific terrorism offences, and the offences of causing or allowing the death of a child or vulnerable adult.

The new mandatory life sentence will affect only those who have committed, on separate occasions, two very serious sexual or violent crimes deserving a custodial sentence of 10 years or more. That is a small number of offenders, but this provision is intended to provide reassurance to the public that very serious repeat offenders of this type can expect to be held indefinitely in prison.

[Lord Thomas of Gresford]

Perhaps the Box can have the chance to deal with this question. Has any analysis been carried out as to how many people would be liable to a life sentence for committing an offence that is not subject to a life sentence at the moment? It seems that they would be liable to a life sentence if the maximum was only 10 years. Has an analysis been carried out of how many offences in the schedule do not carry a life sentence?

[Lord McNally]

My Lords, an impact assessment was made and I think they were talking about 20 cases a year.

[Lord Thomas of Gresford]

That is not quite the point that I am making. It may be that only 20 people would be sentenced to life imprisonment, but would they be sentenced to life imprisonment under this clause, when for the actual offence that they had committed, they could not receive a life sentence? In other words, many serious offences carry life sentences; some do not. I would be grateful for an analysis as to how many would not have a life sentence were it not for this clause.

[Lord McNally]

As far as I understand it, the second serious offence would carry a life sentence.

[Lord Thomas of Gresford]

That is not what it says, as I understand it—perhaps the Box can help him.

[Lord McNally]

That is as I understand it, but I will write to the noble Lord if I am wrong. The other point that has been made—but of course if you try to be reasonable, you are derided—is that the courts are exempted from imposing the mandatory life sentences where they believe it is unjust to do so in all circumstances. It is the policy intention that offenders who have committed two serious offences not carrying life sentences will be liable to the mandatory sentence. However, we cannot at this moment assess the likely numbers that would be affected by that.

As I said before, we have a sense of schizophrenia about this. Perhaps I may finish with a quote from Sadiq Khan:

“Through their “two strikes” policy, the Government absolve themselves totally of any responsibility to identify the serious, violent offenders who are most likely to reoffend. That should be done at the time when the first sentence is handed down for the commission of a heinous crime”.—[Official Report, 1/11/11; col. 796.]

There is not much sense of rehabilitation or reform there. We have to deal with a serious set of reforms and what we get is headline-grabbing attacks on the basis that we are going to let out violent criminals and the rest of it. That is why I hope that some of the unity that was shown earlier about penal reform will resolve itself around support for the Government as we try to manage these proposals through the House.

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[Lord McNally]

My Lords, if Clause 117 is to stand part of the Bill, Amendments 179C to 179F will ensure that the Secretary of State’s power to amend by order the release test that the Parole Board must follow when considering the release of prisoners applies consistently to all categories of determinate sentence prisoner whose release is determined by the board. Currently, the clause applies to the release test for IPP and extended sentence prisoners but there are some other types of determinate sentence which also include a period of parole eligibility and are subject to the same release test. We think the order-making power to change the test should apply equally in those cases. These amendments therefore propose to extend the order-making power to the other categories of determinate sentence to which it does not currently apply. These are: first, the 1991 Act prisoners serving four years or more who are parole eligible between the half and two-thirds points of sentence; and, secondly, the 2003 Act extended sentences imposed before 14 July 2008, when release between the half and end points of the custodial period is at the discretion of the Parole Board. This is simply about ensuring the order-making power in this clause is applied consistently to all determinate sentences when the same release test is used. I beg to move.

[Lord Thomas of Gresford]

Your Lordships will recall that in connection with an earlier amendment I referred to the existing test—which will continue to apply under this Bill—for the Parole Board to apply in considering whether a person should be released. The existing test is that the board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. Your Lordships will recall the criticisms that I made of that. In his reply, the Minister said that Clause 117 gives power to the Lord Chancellor to change that test. I am a little bit puzzled, and I ask my noble friend to explain why that power to change the test is in there. Furthermore, I am very pleased that it is, because I think that the present test is neither fair nor just. The power to change the test is in subsection (1), where,

“the Parole Board … must direct the prisoner’s release if it is satisfied that conditions specified in the order are met, or … must do so unless it is satisfied that conditions specified in the order are met”.

I know that my noble friend, as he earlier confessed, is a follower of Blackpool football club, but at the weekend he may have had the opportunity of watching the Wales versus Ireland rugby match at Lansdowne Road. An incident there perfectly illustrates the situation. There was a pile-up over the line and the referee, instead of making the decision and awarding the try which Wales had so clearly scored, called in the TMO and said, “Has the try been scored—yes or no?”. Immediately, that illustrious and brilliant commentator Jonathan Davies, a brilliant player in his own day, said, “He’s asking the wrong question. The question he should ask is: ‘Is there any reason why this try should not be awarded?’”. By asking it as, “Has he scored it—yes or no?”, the referee was pushing the decision over to the TMO; but if he were to ask the second question, he would be taking responsibility by saying, “I am going to award the try unless you tell me that there is a reason why I should not”.

Applying the same approach to the release of a prisoner, the Parole Board should not be asking whether the prisoner has complied with this or that test; it should be asking: “Is there any reason why we should not release this prisoner? Is evidence being produced for us to look at in reaching a conclusion on whether this prisoner can be safely returned to the community?”.

That is the reason why I support Clause 117—in the hope that the second alternative, in subsection (1)(b), is adopted, and that the Lord Chancellor will then very quickly see the necessity of changing the Parole Board’s test to one that is far fairer: “Is there any reason why, after serving the period of the tariff that the judge has imposed”—which is supposed to be what the judge would have awarded by way of a sentence had he taken that course—“this person should not be released?”. I commend this clause and suggest that the power should be exercised very quickly.

[Lord Ramsbotham]

My Lords, I gave notice of my intention to oppose that the clause stand part in order to be consistent with my now failed hope that the Government would accept the earlier amendments on the IPP. As they did not, it is obviously irrelevant now to say that the clause should not stand part. I shall therefore not oppose it. For all the reasons that the noble Lord, Lord Thomas, outlined, the clause contains some very important measures which provide the Secretary of State with tools to bring about many of the things that we hope will happen to the IPP sentence.