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5.39 pm

Mr. Douglas Hogg (Sleaford and North Hykeham): It is always a great pleasure to follow my right hon. and learned Friend the Member for North-East Bedfordshire (Sir N. Lyell).

I congratulate my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe) on bringing this debate before the House. We do not discuss prisons sufficiently and there are a variety of reasons why we should. One is that we should be concerned by what goes on inside prison. There is plenty of scope for abuse and, unless that is subject to harsh scrutiny in the House and elsewhere, the chances are that abuses in prison will continue. Anyone who has been involved with the Prison Service knows that prison life has its unsatisfactory features that should trouble any humane and compassionate person.

The Home Secretary reminded the House that I was the Under-Secretary responsible for prison policy in the late 1980s. At that stage, we were deeply troubled by, for example, overcrowding. I remember, too, being deeply troubled by the condition of hospitals in prisons. Some of the circumstances in which offending prisoners were kept were wholly deplorable and it is right that the House should focus as often as it can on the conditions in prison. If we do not, most assuredly, no one else will. My right hon. Friend is to be congratulated on introducing this debate.

In the first instance, I shall focus on the immediate subject under discussion--the use of home detention orders. My right hon. Friend is doing me the courtesy of staying here to listen to my speech, but I know that she needs to go and I shall certainly not take it amiss if she does. However, she articulated clearly the arguments that are to be advanced against the orders, and I wish to emphasise two of them.

First, the orders are a serious departure from honesty in sentencing, which is an important policy objective. I know perfectly well that I was a member of a Government who did not achieve that aim, but that does not mean that we should not achieve it. Broadly speaking--I shall come to the detail shortly--I am very much in favour of honesty in sentencing. It is profoundly unsatisfactory that, for sentences of up to four years, an individual can be let out of prison having served less than half the sentence.

I find that extremely difficult to justify and I believe that the public also find it extremely difficult to justify. Although I do not argue that the public should necessarily have the determinate say on penal policy--they tend to be unduly severe--we must have a penal policy that commands public support. If the public fully understood that, under the home detention curfew order system, it is possible to release people--and very serious offenders, too--who have served less than half their sentence, there would be a serious loss of confidence.

Such a loss of confidence would be compounded by the fact--the Home Secretary was fair in admitting this--that the process is an executive and not a judicial one. He said that, generally speaking, such decisions are made by

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prison governors and I am unhappy about the fact that a prison governor is able to substitute his or her decision on the appropriate sentence to be served for that of the trial judge. I know that an offender with a sentence of up to four years may be released when he has served half the sentence, but the trial judge at least knows that fact when he or she imposes the penalty. However, in the case of the orders, an executive decision is taken by an official, namely a prison governor.

The motives for the decision may be mixed. I do not dispute the fact that many prison governors will try to use the policy simply and solely to give a defendant a better chance of reintegrating into society. I am perfectly willing to accept that, because I have always had a high regard for prison governors. However, overcrowding is also bound to be a factor in the decision.

I have not done any research on the matter, so I may well be wrong. However, we may find that many of the orders are made by prison governors in charge of the local prisons. The overcrowding is in local prisons, as opposed to training or open prisons. I would be very disturbed if I found a high concentration of home detention orders made by prison governors of local prisons because I would be suspicious that they were made primarily to reduce overcrowding. So, I do not like the orders in principle, partly because they depart from the principle of honesty in sentencing, and partly because they are executive decisions, and that troubles me.

I also support the point made by my right hon. Friend the Member for Maidstone and The Weald that a number of offences have been committed by persons who have enjoyed the benefit of the orders. It is perfectly true that the failure rate--I am using jargon--is relatively low, as the hon. Member for St. Helens, South (Mr. Bermingham) said, but that is of precious little benefit or consolation to the victims of crimes including grievous bodily harm, robbery, burglary and rape. In one sense, the offenders might have committed the offences any way, but they would not have committed those particular offences. Therefore, the Home Secretary has some difficulty uttering reassuring words to the victims of offences committed by persons let out under such orders.

I shall go a little further to address, as other right hon. and hon. Members have, the question of honesty in sentencing. We should move away from what is in effect automatic release--in respect of sentences of up to four years at the half-way point and thereafter at two thirds. In general, a sentence should mean what it says. If one went up and down the high street, one would find that most people felt that, broadly speaking, the sentence means what it says, and that they would be surprised to learn the extent to which it does not. That broad principle is subject to two provisos.

I agree with the proposition that a discount needs to be earnable. I agree with what the Home Secretary said in response to my intervention--that it would be difficult to maintain order in prisons if there were no discount. Indeed, the process of discounting may have a role in integrating a person more fully into the community, where they are going in any event in almost the universality of cases. However, a discount of one half for sentences of up to four years is too much. I would like about 20 per cent. discount, with a requirement that it be earned. Discount should not be automatic; it ought to be able

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readily to be withheld, which is not so now. In other words, the person seeking the discount must establish an entitlement to it.

The other point is an overlapping one. I am sure that it is necessary for people to be released under supervision before their final release date, simply and solely to make the process of integration readier. Therefore, I strongly support the concept advanced by my right hon. Friend the Member for Maidstone and The Weald of honesty in sentencing, but in doing so I make it subject to the two provisos that I have just articulated.

I should like to make one other point in that connection, which concerns the question of life sentences and homicide cases. I am very attracted by one offence of homicide rather than the distinction between murder and manslaughter as in current law. I hope that, from time to time, the Government or the Opposition will address that question.

The second and related point is this: I am also very attracted by determinant sentences for homicide cases. I am very uneasy with the concept of the life sentence, simply because it does not mean what it says. There are very few whole-life sentences. In fact, the average time served--at least in my day at the Home Office, and I do not think that it has changed much--is about 12 years. There is a strong case to be made for giving the trial judge a power to impose a determinate sentence.

There is one problem with that which I must address, and I have not reached a final conclusion--that is, with regard to risk. At present, in life sentence cases in respect of murder, when a person has served the tariff, there is a discretion as to whether to let that person out, determined by an assessment of risk as to whether the person will reoffend. It must be accepted that the determinate sentence does not take full account of that.

There would be a way round that, which would enable the prosecution authorities to apply to the trial judge, but there is a problem. Perhaps, at least for the present, in murder cases where the life sentence is mandatory, the solution is a different one--to give the trial judge the right to set the tariff. It would be set in open court and might be subject to appeal, but it would be a judicial act.

I had to set tariffs. Subject to the supervening view of my right hon. Friend Lord Hurd, I set the tariff in about 600 cases. I had no inhibitions about doing so. Indeed, we ratcheted the tariffs up. I make no bones about that. However, I feel strongly that Ministers should not set the tariffs. I used to do it. Reading the documents, often late at night, I gave them as much consideration as I could, but obviously I knew but a part of what the trial judge knew.

I did not think that that was a proper exercise for a Minister. It was capable of constituting unfairness. I suspect that, in the fullness of time, it will be struck down by the Strasbourg Court, and we would do well to anticipate that by deciding that, in murder cases with mandatory life sentences, the tariff should be set by the trial judge.

Sir Nicholas Lyell: My right hon. and learned Friend is making interesting points, many of which I agree with, but the sentence for murder--a mandatory life sentence--requires review over a long period, and the approach to that review is inevitably part of the governance of the nation. Does my right hon. and learned Friend agree that,

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in a sense, that is always political, and there is more wisdom than is sometimes recognised in leaving it with the Government of the day?

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