First Standing Committee on Delegated Legislation

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First Standing Committee on Delegated Legislation

The Committee consisted of the following Members:

Chairman:

Mr. Roger Gale

†Afriyie, Adam (Windsor) (Con)
†Bailey, Mr. Adrian (West Bromwich, West) (Lab/Co-op)
†Barker, Gregory (Bexhill and Battle) (Con)
†Bottomley, Peter (Worthing, West) (Con)
†Campbell, Mr. Ronnie (Blyth Valley) (Lab)
†Carmichael, Mr. Alistair (Orkney and Shetland) (LD)
†David, Mr. Wayne (Caerphilly) (Lab)
†Djanogly, Mr. Jonathan (Huntingdon) (Con)
†Featherstone, Lynne (Hornsey and Wood Green) (LD)
†Gauke, Mr. David (South-West Hertfordshire) (Con)
†Hall, Mr. Mike (Weaver Vale) (Lab)
†Hillier, Meg (Hackney, South and Shoreditch) (Lab/Co-op)
†Mactaggart, Fiona (Parliamentary Under-Secretary of State for the Home Department)
†McIsaac, Shona (Cleethorpes) (Lab)
†Moran, Margaret (Luton, South) (Lab)
†Ryan, Joan (Lord Commissioner of Her Majesty’s Treasury)
Geoffrey Farrar, Committee Clerk

† attended the Committee

 
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Tuesday 21 June 2005

[Mr. Roger Gale in the Chair]

Draft Remand in Custody (Effect of Concurrent and Consecutive Sentences of Imprisonment) Rules 2005

10.30 am

The Chairman: Before we start, I wish to extend a welcome to all members of the Committee, particularly new members. If any hon. Member, new or previous, has a problem with the arcane proceedings—it has been known for previous hon. Members to have such problems—please do not hesitate to ask me about them and, in so far as it is within the Chairman’s gift and capacity, I shall do my best to resolve the difficulties.

Will members of the Committee take it as read that our procedures are broadly the same as those on the Floor of the House? Those who know me will be aware that I prefer to be called either “Chairman” or “Mr. Gale”, whichever term the hon. Member who wishes to speak chooses to use. Those members of the Committee who call me “Chair” will realise that I will find it difficult to see or hear them. Hon. Members may remove their jackets for their comfort if they wish to do so.

The Parliamentary Under-Secretary of State for the Home Department (Fiona Mactaggart): I beg to move,

That the Committee has considered the draft Remand in Custody (Effect of Concurrent and Consecutive Sentences of Imprisonment) Rules 2005.

Thank you for your kind reassurance that we shall be safe in your hands, Mr. Gale. I look forward to serving under your chairmanship.

The rules arise from sections 240 to 243 of the Criminal Justice Act 2003, which created new arrangements for crediting remand time towards sentence. For offences committed before April 2005, which I shall refer to as old offences, days spent on remand are automatically counted towards sentence by the Prison Service. There is no discretion in such cases. However, for offences committed on or after 4 April 2005—new offences—the courts must decide how much remand time counts towards sentence. They have discretion not to count all or some of the days. Such practice is adopted to improve transparency and sentencing, and to make sure that people are aware of the sentence at the time when the court makes such decisions.

The point of the rules is to ensure that courts will not inadvertently make a direction that will mean that the same remand day counts towards the sentence twice. They preserve the principles that have been applied by the Prison Service until now and ensure that each remand day will only be credited once.

 
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The first rule covers the situation in which a person spends a particular day on remand in relation to two offences and is then sentenced at different times. It is not appropriate for a day spent on remand in relation to the second offence to be counted towards the subsequent sentence if it were also a day that the offender is serving as a sentenced prisoner in relation to the first offence.

The second rule covers the situation in which an offender is sentenced to consecutive sentences in relation to an old offence and a new offence, and has served remand on a particular day in relation to both offences. As that day will automatically be counted towards the sentence by the Prison Service in relation to the old offence, it is not necessary for the court to consider a direction in respect of that day for the new offence.

Peter Bottomley (Worthing, West) (Con): What the Minister is saying is comprehensible, although not easily so, but were the rules anticipated or are they clearing up an ambiguity that turned up after the Act was passed?

Fiona Mactaggart: The reason for the rules is to provide clarification. It was perhaps anticipated that the courts would take such action, but the rules make matters more simple and straightforward, so that people know how the courts might act. The regulations were laid initially some time ago. The election intervened and we are discussing them after the new offences have come into force simply because of those facts. It is not a sudden catch-up. We were on course to take such action, but other matters intervened. I am glad that we have now managed to bring the rules before the House quickly.

Mr. David Gauke (South-West Hertfordshire) (Con): Have there been many practical instances of problems with existing legislation, or many cases in which ambiguity has caused difficulties for the courts?

Fiona Mactaggart: The ambiguity could arise only in relation to offences occurring after 5 April and therefore I do not have data. I suspect that the answer to the question is not yet.

Mr. Alistair Carmichael (Orkney and Shetland) (LD): Will the Minister explain why the Government have chosen to take the date of offence, rather than the date of sentence or remand, for the starting point?

Fiona Mactaggart: I believe that that is what the Act requires, which is why the Government chose it. If I have misinformed the Committee, I will make sure that I clarify the matter if I speak again.

The rules will maintain the principle that remand time served at the same time as the sentence of imprisonment does not count towards time served. They also maintain the principle that a day of shared remand time should only count once towards time served. Although the court can deliver the same effect simply by using its discretion, it would be desirable to put these matters beyond doubt, as any decisions by
 
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the courts to allow time in such circumstances could undermine public confidence in the provisions. That is why we have brought forward these rules today.

10.36 am

Mr. Jonathan Djanogly (Huntingdon) (Con): May I also welcome new Members of the House to the Committee?

On one level, the subject matter of this statutory instrument seems straightforward. First, it aims to avoid double counting for consecutive sentences and, secondly, it ensures that when an offender is remanded in custody on days during which he is already serving a sentence for another offence, those days should not count as time served towards the new sentence. The notes to the statutory instrument say that that maintains the current position, but a closer look seems to show that the current position is actually that established by the Criminal Justice Act 1967, effectively ignoring what the Government did in their own Criminal Justice Act 2003. That point was anticipated in the pertinent intervention of my hon. Friend the Member for Worthing, West (Peter Bottomley). We need to look a bit more closely at that, and at what happened in 2003. What could explain why the Government then wanted to allow time to be deducted for remand when the offender was serving a term for another offence?

When looking into this a bit further, I thought that my first port of call should be the 2003 Act. I had a look at Hansard and at the expert input from my hon. Friend the Member for Woking (Mr. Malins), who spoke in Committee. He was of the opinion, at the time when this clause was put into effect, that it was unnecessary and inconsistent, and he was probably right. However, there was no real answer there.

When I went back a stage further, the position seemed even less clear. The 2001 Halliday report and the 2002 “Justice for All” White Paper reviewed sentencing frameworks, and the 2001 report noted that even if an offender was serving in prison for another offence, remand time should be taken into account so long as the previous offences were not persistent. It would seem that, at the time of the 2003 Act, a mood was growing to be more lenient on prison sentences, not least because the remand system was not working very well and the prisons were overcrowded.

Our party agrees with the technicalities of this statutory instrument and we certainly do not want criminals to have time off for one crime just because they have committed another. But we are prepared to accept the consequences, which basically come down to building more prisons. I do not understand; where are these proposals actually heading?

The Government are allowing prisons to overspill, with 17 per cent. of all prisoners now being remanded in custody, one in 10 of those remand prisoners committing suicide—that figure is from 2002—and 50 per cent. of remand prisoners eventually not receiving custodial sentence. However, when my hon. Friend the Member for South-West Hertfordshire (Mr. Gauke) asked about the practical implications, the Minister did not have a response.

 
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Fiona Mactaggart: The hon. Gentleman inadvertently misled the Committee when he suggested that one in 10 remand prisoners had committed suicide. I share his concern about the high level of suicide among remand prisoners, but the proportion is certainly nothing like that.

Mr. Djanogly: I thank the Minister for putting me right. I think that she is correct; I may have meant to say 1 per cent., rather than one in ten.

Peter Bottomley: My hon. Friend was a banker and used to dealing with numbers, figures and money, was he not?

Mr. Djanogly: The Committee would be obliged if the Minister put me right on the figures. However, we can accept, I think, that they are significant.

Although we shall not vote against this statutory instrument, I ask the Minister, first, to advise the Committee of the original thinking behind the clause that we are now debating again only two years on. Secondly, why are the Government backtracking from legislation that was introduced only in 2003? Thirdly, how does she think this will help the overcrowding and failure of the remand system?

10.41 am

Mr. Carmichael: I also welcome you to the Chair, Mr. Gale. I had the pleasure of serving under your chairmanship on many occasions during the last Parliament and I look forward to doing so again now.

Like the hon. Member for Huntingdon, the Liberal Democrats are broadly content with the terms of this statutory instrument. What we are dealing with is slightly more prosaic than he suggested; the measure introduces a degree of clarity and consistency into sentencing. In my experience, whether sentences were backdated or not was often determined fairly inconsistently; it was often down to the whim of the judge on the day when the sentence happened to be imposed. To that extent, we were in favour of the provisions of sections 240 to 243 during the passage of the Act; indeed, we support anything that will give them practical effect.

I return to the query that I raised with the Minister during her speech. If the terms of the principal Act are that the application of the rules should be determined by the date of the offence, clearly we can do nothing about that. However, if that is not the case, I suggest—certainly during the initial period—that the date of the offence is a somewhat arbitrary way of applying those rules and that it would have been more sensible and consistent to use the date of the remand in the first instance as the point at which to apply the regulations. If there is a defect with that, it will occur fairly swiftly.

My only remaining query for the Minister is about whether the regulations on the double-counting of days will apply also to sentences that run concurrently. I presume that they count only once.

 
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10.43 am

Peter Bottomley: The Minister has put forward the case for clarity in a straightforward way. The hon. Member for Orkney and Shetland made a useful point; picking out the date of the offence is arbitrary. However, sometimes in government one has to be arbitrary and pick a date. There are pros and cons to that; no doubt there were discussions about those beforehand.

Following on from the sensible remarks made by my hon. Friend the Member for Huntingdon, I take the view that a large number of people held in jail, whether on remand or under sentence, should not be there. I should like to challenge the orthodoxy that now seems to be becoming bipartisan—it is held to by the Government and by my party—that the greater the number of people in jail, the better the situation. That is not only bad for society, but normally ineffective. It is also bad for people in jail, especially those held for more than a day or two. The main effect of being held in custody comes on the first day.

Asking for days on remand to be taken into account in terms of serving a sentence after conviction is the point of today’s discussion. I will not go through my election papers, where I said to my constituents that young people should be guided to not being in jail, rather than doing the offences that cause them to be there. Many offenders should not be regarded as hard cases, and should not be jailed.

There may be other opportunities of going into penal policy. For today’s proceedings, I think that the point raised by my hon. Friend the Member for Huntingdon about suicide among remand prisoners can be easily put in a way I think he would have intended; remand is a dangerous time for the people who are held in jail. As it happens, these regulations do not affect that. They just take those who survive remand, who then get convicted and whose remand days do not allow them to be prevented from getting a custodial sentence, whether or not there is then some discretion. As far as that goes, the Government are doing a bit of tidying up. Whether they should have anticipated it or not is not really important. What matters is that there should be some degree of clarity. I hope that this provides it.

10.46 am

Fiona Mactaggart: I thank all hon. Members who have contributed to the debate.

I deal first with the points made by the hon. Member for Huntingdon. He asked how earlier provisions fitted with the Act. This also relates to the contribution of the hon. Member for Worthing, West, in that this Act seeks to provide new forms of sentencing and honesty in sentencing. We are trying to be clear, at the point of sentencing, what is going to happen to people. In response to the hon. Member for Orkney and Shetland, that is one of the reasons why the Act provides that it is for offences committed after the Act. I was right in my earlier response to him.

 
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In addition, one of the things that the Act does is provide a more comprehensive range of alternatives to prison sentences. Sentences in the community, about which the hon. Member for Worthing, West is concerned, might be more appropriate. We are providing significant, substantial and effective alternatives to imprisonment other than fines being available to sentencers. In the past, we have not had many of those.

Mr. Djanogly: The Minister says that this measure relates to the 2003 Act. From what I can make out, however, it is effectively excluding the 2003 Act. Why, then, did they propose the 2003 Act in the first place?

Fiona Mactaggart: I do not recognise what the hon. Gentleman is saying, which is why I responded initially to his point with silence. We are making sure that there are no inadvertent and invisible consequences of the new power, which rests in the hands of the court. Sections 240 and 243 of the 2003 Act give this power to the court. We would not, however, want the court to inadvertently count something twice. I do not believe the courts would wish to do that in most circumstances, nor would they wish to spend a long time trying to find out whether it was to have happened. These rules are trying to simplify that.

Adam Afriyie (Windsor) (Con): Will the Minister confirm whether the court’s discretion can be challenged under these new rules? Is there any opening for a challenge to the court’s decision?

Fiona Mactaggart: I will have to write to the hon. Gentleman. I think that it could be challenged under an appeal against sentence, as the court is deciding the extent to which time in custody on remand might be counted towards a sentence. If there was to be an appeal against sentence, that could be challenged there. [Interruption.] Yes, I was right. The Court of Appeal would deal with the matter in the normal way. That provides clarity and transparency, and puts the decision where it should be; in the hands of the courts.

The hon. Member for Huntingdon suggested that we were backtracking. I think that he misunderstood what we are trying to do. He went on to ask whether we are prepared to provide for more people in prison. The answer to that is yes if it is necessary, but no if it is not.

The hon. Member for Worthing, West is right that there are people in prison who should not be there. Some of them are on remand. If we can provide robust alternative community sentences, in which sentencers have confidence and which are effectively delivered, we can divert from imprisonment some people who are currently imprisoned. I also believe that that could be more effective.

Adam Afriyie: I am not entirely clear on how these rules will operate, although I am broadly in support of what is being proposed. What would happen where somebody was remanded in custody and was then given a non-custodial sentence, which could be
 
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community service or something along those lines? Would there not then be a claim for unfair imprisonment?

Fiona Mactaggart: There are frequently circumstances in which people who have been remanded in custody are thereafter not given custodial sentences. First, let us consider the circumstances in which remand in custody should be used. It should be used where there is a risk of absconding, a risk to the public or a risk to witnesses. Often, the sentencing that takes place after remand in practice takes into account the fact that those convicted have been remanded in custody.

I know what the figures are in the women’s estate but I am conservative about using them. I am anxious because the hon. Member for Huntingdon used some slightly misleading figures. One in five women who are remanded in custody thereafter gets a custodial sentence. A proportion do not thereafter get a custodial sentence, but the fact that they do not is partly influenced by the fact that they had been remanded in custody until that point. One sees that frequently in the statements of magistrates and judges. There is no way to challenge that. We need to ensure that remand in custody is not floridly or unnecessarily used. It should not be used when there is not a threat of absconding, a threat to witnesses and so on. I mentioned those requirements earlier.

The point of these rules is to clarify the circumstances in which and the ways in which remand in custody is counted towards sentence. It should not be used excessively. It has to be used sometimes. We are developing alternatives; for example young offenders can be tagged on bail. We are using that provision, which can address some of the reasons for using remand in custody without using prison places and without the risk that exists—although not to the extent that the hon. Member for Huntingdon suggested—that people who are incarcerated may kill themselves.

Peter Bottomley: What we are being told is that if I were to be remanded in prison before trial, convicted and sentenced to a custodial sentence, my time on remand could be taken into account. Were I to receive a non-custodial sentence or to be acquitted, it would not be taken into account. There is no sort of compensation in those circumstances.

 
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The Minister mentioned women prisoners. Will she give some thought—not at length today because I am unsure that this is fully covered by these rules—to having many of the drugs mules, who are given custodial sentences, sent back to the countries that they came from?

The Chairman: Order. To ensure that those who have not taken part in these proceedings before are not set a bad example and so that they do not think that just because I have an extraordinary reputation for leniency they can get away with things, I must say that the hon. Gentleman is out of order.

Fiona Mactaggart: Mr. Gale, I was beginning to realise that my preparation for this Committee was being stretched beyond the horizon. Thank you for bringing us back to order. The hon. Gentleman’s point is an important one, although we have dealt with it by way of many of the things we have done. I shall write to him if anything further needs to be said.

The Government are prepared to invest in building prisons and in prison places where we require them, but we are also prepared to take robust action to reduce the unnecessary use of imprisonment. The debate on this quite limited measure has spread into a debate on remand; you, Mr Gale, quite rightly brought us back to the point at issue. The point is whether we can have absolute clarity about the circumstances in which a sentencer can count days that have been served on remand, whether we can make sure that they are not counted twice and whether we can ensure that the intention—clearly expressed in the Criminal Justice Act 2003 and which is not in any way seeking to undermine its provisions—that the extent of prior counting be decided in the court can clearly be carried out.

These rules will maintain the principle that remand time served at the same time as the sentence of imprisonment does not count towards time served because that is time served as a sentenced prisoner. They also maintain the principle that a day of shared remand time should only count once towards time served. We are determined to get clarity and straightforwardness in sentencing. The regulations guarantee that that will be delivered and that is all we are seeking to do with them.

Question put and agreed to.

Resolved,

That the Committee has considered the draft Remand in Custody (Effect of Concurrent and Consecutive Sentences of Imprisonment) Rules 2005.

Committee rose at three minutes to Eleven o’clock.

                                                                                           

 

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Prepared 22 June 2005