Criminal Justice and Courts Bill

Debate between Lord Wigley and Lord Brown of Eaton-under-Heywood

Monday 14th July 2014 Lords Chamber

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

My Lords, most of what needs to be said on this amendment has already been said and said eloquently by my noble and learned friend Lord Lloyd of Berwick, who has championed the cause of this desperately unfortunate cohort of prisoners for some time past.

I have added my name to the amendment, however, and speak as one of five Members of this House sitting in an appellate capacity in May 2009 in the case of James, Wells and Lee before those prisoners took their case to Strasbourg. Although in this House we felt obliged to dismiss their appeals, all of us were fiercely critical of the way in which the IPP regime had been introduced in 2004 by the 2003 Act. I observed that it was a most regrettable thing that the Secretary of State had been found to be, indeed had admitted by then to having been, in systemic breach of his public law duty at least for the first two or three years of the regime. That was in the period prior to the 2008 amendments, so it was in respect of the period from 4 April 2005 to 14 July 2008.

The European Court of Human Rights, as is well known, went further than we had felt able to do. In the case of those three applicants, whose tariffs were respectively two years, one year, and nine months, all having been sentenced in 2005, the European Court concluded that,

“following the expiry of the applicants’ tariff periods and until steps were taken to progress them through the prison system with a view to providing them with access to appropriate rehabilitative courses”,

their detention had been arbitrary and therefore in breach of Article 5.1 of the convention. In so holding, the Strasbourg court emphasised, at paragraphs 203 and 204 of its judgment, that those three prisoners had been sentenced during the initial phase of the regime when the sentence was mandatory, as the noble and learned Lord, Lord Lloyd, has explained, with the judges required to assume dangerousness—in their case—and leaving no room for the exercise of any judicial discretion. It is precisely that cohort of prisoners to whom our proposed amendment is directed and to whom it would apply.

In 2012, at much the same time as Strasbourg was deliberating on those cases, LASPO was enacted here, abolishing the IPP regime from 2012 for all time. Importantly for present purposes, as again the noble and learned Lord, Lord Lloyd, has explained, it introduced a means of improving the lot of those unhappy prisoners who had earlier been sentenced under it. It did this by Section 128, enabling the Secretary of State by order in effect to relax the usual criteria by which the Parole Board decides whether to direct a prisoner’s release.

It is at this stage that I want to make brief mention of a celebrated case, already touched on by the noble and learned Lord and well known to all who are ever interested or concerned in public or administrative law. I refer to the case of Padfield v Minister of Agriculture, Fisheries and Food, decided by this House nearly 50 years ago in 1968. There, as here, a discretion had been conferred by legislation on the Minister. There, as here, the Minister had declined to exercise that discretion. I do not pretend that the factual context there was remotely analogous to that here, but I believe that the following, frequently cited passage from Lord Reid’s judgment has a real relevance in the present context, too. This I quote from the report in 1968 appeal cases at page 1030:

“Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court”.

If one now asks, “What are the policies and objects of LASPO?”, the 2012 Act, there can surely be no doubt. Parliament was at one and the same time abolishing what by then had become recognised to be an unfair and unsustainable penal scheme, essentially providing as it had for preventive detention, and allowing the Secretary of State by order to abate or at any rate ameliorate the injustices that had arisen from the scheme and which remained from earlier years. The amendment would cut the Gordian knot with regard to the most unfairly treated group of IPP prisoners: those who must by definition have served at least three times—quite possibly, up to 20 times—the length of their tariff sentences. I say at least three times because, by definition, their tariffs were less than two years and they were sentenced before July 2008, which is now six years ago.

For my part, I urge in addition that the Secretary of State should now, at long last, exercise his Section 128 discretion in respect not only of that cohort but of others lucklessly left over from the IPP regime, for example, others sentenced in the earlier years when the court had no option but to pass indeterminate sentences. At the very least, surely the Secretary of State should now direct the Parole Board to reverse the burden of proof. At the moment, prisoners are required to prove that they would constitute no threat to the public on release. Surely that burden should now be placed on the Secretary of State for Justice.

However, for the 773 prisoners who would benefit from the amendment, we suggest that enough is enough. They should simply be freed. No doubt some will reoffend following release, but at least we shall have placed some limit on the ever-growing length of their preventive detention, and that stain will have been removed from our criminal justice system.

[Lord Wigley (PC)]

My Lords, this is my first contribution on the Bill; I apologise that I could not participate at Second Reading. The amendment deals with a matter about which I feel very strongly. I speak as a layman, not as a lawyer; we have heard excellent analysis from the noble and learned Lords, Lord Lloyd and Lord Brown.

At present, on figures I have received today, there are still 5,206 prisoners in the UK serving IPP sentences—sentences that were, as we have heard, abolished in 2012. Of those, 3,575 prisoners have already passed their tariff. As the noble and learned Lord, Lord Lloyd, mentioned, the Parole Board releases about 400 inmates every year at the present rate of release. That means it would take nine years to clear the backlog.

In March this year, I led a debate in your Lordships’ House calling for a rapid assessment of those serving those sentences. I argued that priority should be given to those who were originally given tariffs of two years or less. I will not repeat all the arguments today, but noble Lords may remember that in that debate, I mentioned that when the sentences were first introduced, courts had little discretion in choosing whether to impose an IPP sentence, and many were handed out for offences such as burglary and robbery. One tariff was set as low as 28 days.

I am therefore very glad to lend my support to Amendment 17. I am grateful to the noble and learned Lords, Lord Lloyd and Lord Brown, for tabling it. I warmly support the initiative. I ask the Minister whether he can sleep at night when he thinks of people who have been so long in prison—way beyond the period for which they expected to be there.