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Lord Belstead: I support the amendment and give the warmest welcome to Clause 46 which provides for extended sentences for licence purposes. It increases the protection of the public as a result of increased supervision and increases the period of time during which a prisoner on release licence under Clause 46 will be liable to recall. At the same time, it will also assist with the rehabilitation of offenders and so, it is to be hoped, prevent reoffending. With respect, and I hope not appearing to be presumptuous, I warmly congratulate Ministers opposite and the Secretary of State on producing Clause 46.

However, I fall into the same category as my noble friend Lord Windlesham and the noble and learned Lord, Lord Ackner, in believing that the wording is not entirely clear. The Committee stage is not about taking the Bill away having changed nothing. The brownie points are always for Ministers who listen, as do these Ministers, and take action where necessary. I hope that they believe that this is an appropriate occasion to do so.

Lord Falconer of Thoroton: Although the noble Lord, Lord Windlesham, was so seductive in moving the amendments, referring to his distinguished supporter the noble and learned Lord, Lord Bingham, and although the noble Lord, Lord Belstead, wished to give us an opportunity to win brownie points, my instructions say "resist".

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With great respect to the noble Lord, Lord Windlesham, and the noble and learned Lord, Lord Ackner, I believe that as a matter of law it is correct to resist. Perhaps before explaining why, it is worth emphasising that there is no disagreement between any of us that the purpose and effect of this section is correct. It is simply a matter of which descriptive words are used to achieve that end.

As the noble Lord, Lord Windlesham, pointed out, the Bill states:

    "that is to say, a custodial sentence the term of which is equal to the aggregate of",

what is described as "the custodial term" and a further period described as "the extension period". The noble Lord wishes the provision to read:

    "that is to say, a sentence the duration of which is equal to the custodial term and the extension period".

The clause currently describes an extended sentence as "a custodial sentence", the term of which is equal to a custodial term of a certain length, plus an extension period. I can see why the noble Lord suggests removing the word "custodial". An offender with an extended sentence would normally spend the greater proportion of that sentence in the community on licence rather than in prison. As the noble Lord said, he thinks that it is inapt to refer to that as a custodial sentence and believes it to be better to replace the word "term" with the word "duration".

However, the clause is correct to refer to an extended licence period as part of a custodial sentence. That is because during the extended licence period an offender is subject to recall to prison, in exactly the same way as one released on licence as part of any other custodial sentence under the Criminal Justice Act 1991. The new Section 44(3) and (4) of the 1991 Act, inserted by Clause 47, makes it clear that the licence may be revoked during the extension period. So the extended sentence is a single custodial sentence to which Part II of the 1991 Act applies.

In other words, you have a sentence which is one custodial sentence. You can be recalled during the licence period, which is the extension period. That is done by reference to the 1991 Act. Such a sentence under that Act would be a custodial sentence so described in that Act. That is why the terms are used in the way that they are in Clause 46 of the Bill.

Also, by virtue of Clause 69(5), the phrase "custodial sentence" takes its definition from Section 31(1) of the 1991 Act. It thus includes both a sentence of imprisonment and the various analogous disposals available in respect of offenders under 21, such as detention in a young offenders institution or under Section 53 of the Children and Young Persons Act 1933.

I therefore believe that the description of an extended sentence in Clause 46 is correct--namely, as a custodial sentence. It is right to refer to it as a "term" rather than "duration". To suggest that an extended sentence is not a custodial sentence might be misleading and create uncertainty because of its relationship with the 1991 Act. Therefore, despite the seductive and persuasive way in which the amendment was advanced, I hope that the noble Lord will agree to withdraw it.

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6 p.m.

Lord Windlesham: I shall study that explanation with great care. I still find it difficult to understand how the description "custodial sentence" can be used to cover a sentence, the extended part of which is not served in custody. It would seem simpler and more comprehensible to say that it is a sentence and part of it is custodial and part of it is non-custodial. In that case, why cannot it be described as a sentence of the court rather than as a custodial sentence?

The noble and learned Lord has his authority on a matter of law in the shape of the parliamentary draftsmen. I have mine in the shape of the most senior judge in England and Wales who will have to implement the provisions. Therefore, I should like to refer back to my legal source while the noble and learned Lord refers back to his.

Lord Ackner: Before the amendment is withdrawn, perhaps I may ask the Solicitor-General to explain to us exactly what the judge should say to a defendant in a case to which this applies. I offer my suggestion and the noble and learned Lord can deal with it. I assume that the judge will say to the accused, "I am imposing upon you a custodial sentence of 10 years but that is not the end of the matter. For the protection of the public, I am going also to impose upon you a licence which will oblige you, during the period of five years following your release, to be ...", and then he will deal with the matter of good behaviour and so on. Therefore, the only period of custody to which the judge will refer is the initial 10 years.

Lord Falconer of Thoroton: It would be presumptuous of me to say how the judge will sentence when it comes to a Clause 46 sentence. I simply draw attention to the fact that it is a custodial sentence with two parts to it: a custodial term and an extension period. I am sure that the judges will be able to explain that in appropriate language.

Lord Windlesham: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 218 not moved.]

On Question, Whether Clause 46 shall stand part of the Bill?

Lord Belstead: As the noble and learned Lord the Solicitor-General said, during the extension period under Clause 46 there will be the ability to recall those who are under extended supervision. Therefore, I had a quick look at the financial effects of the Bill and I see that it is said that although Parts IV and V will have increased financial effects in relation to the Probation Service and electronic monitoring costs, additional costs to the Parole Board and the police as a result of recalling to prison those who have breached their licence conditions are expected to be minimal. I do not know that I would disagree fundamentally with those words, but there will be some increased costs.

But then, looking at the Marshalled List, I looked over the page to page 6 and see that Amendment No. 218A attempts to abolish Section 2(5) of the Crime (Sentences)

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Act 1997 which is to do with mandatory life sentences for second serious offences of wounding or causing grievous bodily harm. Of course, those life sentences will be subject to the Parole Board deciding, after the tariff has expired, when those particular offenders will be allowed out. I know from a previous existence, when I was connected with the Parole Board--and I must declare that interest--that extra resources have never been considered for that work by the Home Office.

Therefore, I beg Ministers not to consider that the Parole Board can continue on and on carrying additional responsibilities with no extra resources. Section 2(5) of the Crime (Sentences) Act 1997 will cost the Parole Board additional resources and Clause 46 will cost something in terms of extra recalls. I merely rise to draw attention to what is a small but significant point.

Lord Williams of Mostyn: I am grateful for the way in which those observations were made. I undertake to the noble Lord that I shall make a particular point of transmitting those concerns to the Secretary of State.

Lord Belstead: I am most grateful to the noble Lord.

Clause 46 agreed to.

Clause 47 [Effect of extended sentences]:

Baroness David moved Amendment No. 218ZA:

Page 36, line 12, at end insert--
("(4A) Where a prisoner to whom this section applies is recalled to prison, he may make representations in writing at annual intervals with respect to his continued detention.
(4B) The Secretary of State shall refer to the Parole Board the case of a person who makes representations under subsection (4A) above.").

The noble Baroness said: This is a probing amendment designed to establish the Government's intention concerning the review of cases of offenders recalled from the extended supervision period which Clause 46 provides.

These extension periods could be up to 10 years in the case of sexual offences and five years in the case of violent offences. We support this measure, but in view of the serious implications for individual liberty of recall for such extended periods, we consider that such offenders should have the right to request a review of their continued detention at regular intervals. I beg to move.

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