Draft Home Detention Curfew and Requisite and Minimum Custodial Periods (Amendment) Order 2024

Nicholas Dakin Excerpts

Wednesday 4th December 2024 General Committees

[The Parliamentary Under-Secretary of State for Justice (Sir Nicholas Dakin)]

I beg to move,

That the Committee has considered the draft Home Detention Curfew and Requisite and Minimum Custodial Periods (Amendment) Order 2024.

It is a pleasure to serve under your chairmanship, Mr Mundell. The Government laid this draft order on 13 November. I hope that that has given hon. Members an opportunity to scrutinise the order and its accompanying explanatory documents. However, I welcome this further opportunity to be clear about what the order will do and the Government’s reasons for taking these measures.

The draft order is a key part of our continuing efforts to resolve the capacity crisis in our prisons. We inherited from the previous Government a prison system on the verge of collapse, and on 12 July the Lord Chancellor was forced to announce a measure to address the immediate risk of running out of prison places: a change to modify the automatic release point for those serving standard determinate sentences from 50% to 40%. Specified offences were excluded from the modification.

The draft order makes further important changes to the original measure by excluding a number of further offences from the modification. Also, as part of our continuing efforts to avoid running out of prison spaces, the order amends the provisions relating to home detention curfew, or HDC, by extending the maximum time that an offender can spend on HDC in the community. HDC enables eligible risk-assessed offenders to be released from prison six months early and to spend more time in the community. They are subject to an electronically monitored curfew.

We propose to extend the maximum time that an offender can spend on HDC from six months to 12. To be clear, we seek to extend the maximum curfew period only. Eligibility and suitability criteria remain exactly the same; all the exclusions remain—for example, sex offenders are still excluded in statute, and those serving sentences linked to domestic abuse remain presumed unsuitable under the policy.

It is right that the sentencing review is given time to do its work, but the capacity crisis in our prisons has not gone away. When we introduced emergency measures in July, we believed that they had bought us about a year, but after the summer of disorder the next crisis could be just nine months away, and for that reason we must implement further measures urgently to ensure that we do not face running out of places again. The change to HDC will help to ensure that the criminal justice system is able to function as it should, helping to prevent further acute capacity pressures and avoid us running out of prison places, which would cause criminal justice gridlock.

The draft order relates to release measures in the Criminal Justice Act 2003. The first part of the draft order deals with the HDC, which has been in operation since 1999. The scheme enables certain prisoners to be released from prison early, while remaining subject to significant restrictions on their liberty. Offenders who are released from custody on that basis are tagged and placed on a curfew. Curfews must be for at least nine hours per day by law, but are generally around 12 hours per day as a matter of policy. The curfew requirement must remain in force until the offender reaches what would have been the conditional or automatic release date. Those released on HDC are subject to probation supervision and other restrictions as necessary, which may include GPS location and alcohol monitoring, exclusion zones, non-contact conditions and travel restrictions. If offenders breach the terms of their conditions, they can be recalled to custody to serve the remainder of their custodial sentence.

The rules on eligibility will not change as a result of the draft order. Offenders must complete half the custodial part of their sentence before they can be considered eligible for HDC. Release on HDC is also entirely discretionary. A number of offences are excluded from scope by statute—for example serious violent and all sexual offences. Other types of offending are presumed unsuitable as a matter of policy, including those often associated with domestic abuse, such as stalking, harassment and coercive control.

Offenders serving sentences for any of the presumed unsuitable offences will not be considered for release unless the prison governor is satisfied that there are exceptional circumstances justifying this. Any offenders who meet that test will still be subject to a rigorous risk assessment process before release on HDC is approved. We are proposing to extend the maximum period that an eligible prisoner may spend on HDC to 12 months from the current maximum of six months. Those offenders eligible for HDC will continue to be risk-assessed, and will still be subject to strict licence conditions and an electronically monitored curfew.

As the previous Prisons Minister said, the re-offending rate for prisoners released directly from custody was close to 50%, but for the types of offenders released on HDC it was 23%. The previous Administration committed to doing a review when HDC was extended from four and a half months to six months. That review did not take place, and the growing crisis in our prisons has meant that we need to take further action. HDC is closely monitored by His Majesty’s Prison and Probation Service and by the Ministry of Justice. Data on releases and recalls is regularly published, and that will continue.

I must be clear that this measure is urgently needed to reduce the pressure on the prison system. The challenges facing us across the prison estate are such that we must take urgent action to allow the sentencing review to take place. By extending HDC, we are using a long-standing mechanism that has robust safeguards built into it.

The order will also amend the Criminal Justice Act 2003 (Requisite and Minimum Custodial Periods) Order 2024, which established the SDS40 early release measure by modifying the automatic release point for those serving standard determinate sentences from 50% to 40%. This statutory instrument seeks to exclude six further offences from the early release measure that were not identified at the time.

SDS40 was delivered extremely effectively but there was a problem with 37 prisoners, who were released in error. The issue involved the use of an offence that had been repealed in 2020, thereby creating an anomaly. That ultimately meant that those prisoners were not identified as being ineligible for early release under SDS40. All those offenders released in error were returned to custody. Subsequently, a thorough search uncovered similar anomalies where legislation creating criminal offences had been repealed and replaced. We had already taken the decision to exclude such offending which relates to stalking, harassment, sexual harm and so-called revenge pornography from the scope of emergency early release. We are therefore acting quickly to exclude five further offences from SDS40. This will ensure that anyone convicted of any of those offences cannot be released early under SDS40, and that the spirit of the original exclusions is delivered in full.

The draft order also excludes murder from SDS40. Ordinarily, there would be no need to exclude murder, as anyone convicted of murder under English law receives a mandatory life sentence. However, some jurisdictions do not have life sentences, so it is possible in a very small number of cases that a UK national convicted of murder in a foreign jurisdiction may be given a determinate sentence for murder by that foreign court, and may then be repatriated back to the UK to serve that sentence in a prison in England and Wales. We want to ensure that no offender in that position could be released early under SDS40.

Shortly after coming to power, the Government took decisive action to stop our prisons collapsing. SDS40 was an emergency response to the crisis that we were faced with. We worked at pace to ensure that the scheme was as effective as possible while protecting the public by excluding the most serious offenders and providing specific protections for victims of certain domestic abuse offences. We have kept SDS40 under constant review and will continue to do so, and we are now acting quickly to address a small number of anomalies in the original legislation. The draft order extends to England and Wales only, and there should be no direct effect on the devolved Administrations.

[Dr Kieran Mullan (Bexhill and Battle) (Con)]

It is a pleasure to serve under your chairmanship, Mr Mundell.

The Minister’s remarks were to be expected; they are in keeping with the trend across Government of defending decision after decision taken by them by reference to the Conservatives’ record and actions in office. That is the nature of politics, and I imagine it will continue for some time, but I am certainly not going to write any blank cheque to the Minister and the Government, nor abdicate our duty to hold them responsible and accountable for whatever they might say about their inheritance. It is our role to deliver scrutiny—of not just the overall outcome they are seeking but how they are going about it.

Although the Government’s intent to address prison capacity pressures is clear, we must critically assess: whether these measures have been properly considered; that we can expect them to be delivered competently; and that, when looked at in detail, they match up to the Government’s pledges. Our prison system faces unprecedented strain, and all the evidence suggests that that strain has become the challenge we see today primarily because of covid. If the remand population that has spiked directly because of covid were at historical levels, we would not be here; we have been left with 7,000 more people in our prisons, compared to the historical average. Members will know that this sum is greater than the numbers that the Government have released and will be going on to release to reduce the steady-state prison population.

The previous Labour Government, like this one, sought ways to manage the challenge, including through use of the end of custody licence scheme—a scheme that, as they have criticised it, Government Members should be aware was actually created by the last Labour Government. The previous Government also had a plan to change legislation to allow us to accommodate prisoners overseas and to discourage use of shorter sentences. This Government have, of course, decided to take their own measures, beginning, as we have heard, with the SDS40 scheme, and now they proposes to extend home detention curfew eligibility from 180 to 365 days.

We are told that both measures are short-term, that the impact of the steps has been fully understood and that there should be some acceptance that the Government will deliver the mechanisms effectively. Let me begin with the proposition that these are short-term measures, or, as the Minister likes to call them, “urgent”. I make the same point I made to the Lord Chancellor in the Chamber on SDS40. If these measures are expected to be short-term, why have they not been sunsetted? If the Minister is confident that they are only short-term, he should make them short-term in the legislation.

The Government have not even gone so far as to tell us the threshold for when they will review possible withdrawal. To be fair to the last Labour Government, even they did that. When they introduced the end of custody licence scheme, they set a prison capacity target—a fixed figure—at which they would review its use, and that is what happened. This Government have not even done that. As is so often the case, the devil is in the detail, or to be more precise in this instance, in the impact assessment. Why, if this is a short-term measure, is the period measuring its benefit over 10 years? It is there in black and white on page 7 of the impact assessment. The Government cannot expect the Opposition to support measures that they say are short-term when all the evidence suggests that they are not.

Next, I turn to the question of whether we have the necessary assurance that the Government have properly considered the impact of their policy. I am afraid, again, that the Minister and Committee members will need to reflect on the Government’s own impact assessment to assist them with this. Page 4 helpfully lays out those who will be affected by the policy. Quite rightly, paragraph 13 lays out that

“Victims of those released from custody”

should be included in this group. I am sure that everyone here can agree that female victims of male violence, and people who have been burgled or mugged, are impacted when they see the perpetrator walk away from prison early.

Paragraph 56, on page 10, summarises the impact assessment, stating:

“We have taken into account the potential impact of the earlier release of some offenders on the public and, particularly, victims of the offenders released.”

I am afraid that the Minister will need to help me here. Forgive me, but where exactly between pages 4 and 10 have the Government done that? Extraordinarily, the document talks about how much better it will be for the perpetrators and their families to be reunited, but what about victims and their families? Besides a cursory mention of notifying them that this will be happening and of the impact on them, it says absolutely nothing.

Finally, we come to effective delivery. Where might we look to make an assessment of that? Of course, we did not look any further than this legislation, because as well as expanding the HDC scheme, as the Minister has said, today’s legislation is also correcting errors in the SDS40 scheme. This amendment rightly excludes six additional offences that were missing from the SDS40 scheme, ensuring that those convicted serve at least half their sentence. How did the Government initially overlook offences such as breaching restraining orders, sexual harm prevention orders and serious harassment? Those are not minor offences; they carry significant harm, particularly for victims.

[Sir Nicholas Dakin]

indicated dissent.

[Dr Mullan]

The Minister may shake his head and say that in some ways they were captured, but ultimately, as he has admitted, offenders have been released who should not have been.

Ultimately, this provision will also significantly change the number of electronic monitoring tags required. The framework acknowledges this, but fails to detail how the Government will ensure readiness. We have seen what happens when these systems fail. Under the SDS40 early release scheme, offenders were released without tags, posing a clear danger to the public. We are told that the Government are now up to date with the SDS40 scheme. Can the Minister tell us the situation with the wider backlog? I am afraid that the Government have not done enough to reassure us that yet further extensions to the use of tagging at this stage will be suitably managed. The Lord Chancellor has also committed to funding at least 1,000 additional probation officers by March 2025. The recruitment and training of probation officers takes time. What evidence do we have that that target will be met?

I am afraid that, on the three sensible tests against which we might view this policy, the result is wanting. The Government want to talk about our record. I remind them that they steered the Crown Court to a higher backlog, after we had reduced the backlog pre-pandemic.

[Sir Nicholas Dakin]

indicated dissent.

[Dr Mullan]

The Minister frowns, but he can look it up. Pre-pandemic, the backlog was lower than the backlog that Labour left us at the end of its previous time in government. The Government criticise, saying that we forced them to release several thousand prisoners early. Perhaps Government Members do not know that they released more than 80,000 prisoners early when they were last in charge.

There is no doubt that there are challenges in our criminal justice system, but the Government should not expect and will not receive a free pass when it comes to fulfilling their responsibilities to tackle that challenge with professionalism and due diligence. The public expect better than this and we will be voting against this order on their behalf.

--- Later in debate ---

[Sir Nicholas Dakin]

I thank the Liberal Democrat spokesperson, the hon. Member for Eastbourne, for recognising at the start of his speech that the Government are taking this matter very seriously. I also say to the shadow Minister, the hon. Member for Bexhill and Battle, that the official Opposition are absolutely right not to give the Government a free pass. “The public expect better”, he said, but he should bear in mind that our scheme excludes people convicted of sexual offences, while his Conservative Government did not put any exclusions in place at all. Their scheme was done hurriedly just before the election, while this is being done to take control of the prison population in response to a crisis, so that we can run the criminal justice system appropriately. If the previous Government had done their job properly, we would have inherited a situation on which we could build positively into the future, but that has sadly not been the case.

I will deal with the issues raised by the Liberal Democrat spokesman first. We take victims and victims’ voices very seriously, and we will continue to do so. Anyone convicted of offences linked to domestic abuse, such as stalking and harassment, are presumed unsuitable for HDC. Exclusions under SDS40 have to be based on specific offences, and domestic abusers are prosecuted under many powers. Our exclusions send a clear message about how seriously the Government take domestic abuse and, unlike the end of custody supervised licence scheme, we have taken specific action, and we will continue to do everything we can to ensure that victims’ voices are well represented on these issues. Victims eligible for the victim notification scheme or victim contact scheme are properly informed during the process; that is taking place. The sentencing review will look at other things, and we have made sure that there is a victims’ voice on its panel.

The shadow Minister, the hon. Member for Bexhill and Battle, rightly asked whether the electronic monitoring system is doing its job effectively. Again, we inherited a contract from the previous Government that was not performing to the level we would have wished. It is improving, but it is still not where we want it to be. It is at a point at which we are confident that it can handle the coming additional workload, but we need to continue to work hard to make sure that the contractors deliver, as they should always have been delivering; we should not have inherited a situation where they were not performing to the level that they should have been.

The shadow Minister asked when SDS40 will be reviewed. When he raised that in the Chamber, the Lord Chancellor assured him that it would be reviewed after 18 months and that it would come back to Parliament at that point.

I do hope, having had this discussion, that the Committee will support—

[Dr Mullan]

I think the Minister has only answered one of my questions. Will he address the 10-year timescale and the lack of any discussion of victims in the impact assessment? I think there were two other points he could usefully try to reply to.

[Sir Nicholas Dakin]

As he probably realises, all impact assessments have a 10-year focus. The impact assessment is nothing to do with intention; it is about the impact if things went on for that period of time. It is the normal process. The hon. Gentleman is confusing the impact assessment with the Government’s intention. The Government’s intention is not for this provision to continue for that period of time.

Question put.