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Lord Mackay of Drumadoon: I am grateful to the noble and learned Lord. My concern was to clarify the position not only for my purposes, but also for those who will have to deploy the powers in the fullness of time. One possible consequence of the provision if it is not correctly construed and applied is that because of the availability of the extension period, judges might be tempted to restrict the custodial term and, as I understand it--I am sure that I do understand what the noble and learned Lord has said--the policy is not that there should be any curtailment of the custodial term. Having received that assurance, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 70 shall stand part of the Bill?
Lord Mackay of Drumadoon: Again, in a probing nature and briefly, I should like to raise one or two matters which I hope the noble and learned Lord can clarify. As I have already indicated, under new
subsection (2)(b) of the proposed new Section 210A of the 1995 Act, it will be necessary for the court to reach a view as to the duration of the extension period to the effect that it should be of such length as the court considers necessary for the protection of the public from serious harm following the release of the offender. In other words, we are going one stage further. In taking into account the overall custodial term, one is deciding upon a fixed period which is, to quote the provisions again,
- "of such length as the court considers necessary".
I seek to probe how the Government intend that the courts should assess the duration of the extension period within the parameters that are set down in what will be new subsection (3) which states that in a sexual offence case, the period could be 10 years while in a case involving a violent offence, it is limited to five years. It might be of assistance if the noble and learned Lord could explain why there is that difference. Although sexual offences can be serious and could arguably require an extension period of 10 years, one can imagine many violent offences, which would not qualify as sexual offences, being just as serious and which members of the public would perceive as being just as serious.
My first question is: how do the Government envisage that the courts will set about the statutory duty that is laid upon them to determine what length of sentence is necessary? Secondly, if the court, having been satisfied that it was necessary to protect the public from serious harm, was of the view that an extension period was necessary but believed that the limit of five or 10 years imposed by statute was too low, is it the Government's view that that would necessarily lead the court to impose a discretionary life sentence? I repeat that if by that stage the court is satisfied that custody is appropriate; that there is a need to protect the public; and the length of five or 10 years as set down by Parliament is inadequate, does that mean that a discretionary life sentence becomes virtually automatic?
I do not raise these practical matters now in any attempt to frustrate the provisions--although I have not read much about this, I believe that it might be a useful addition to the sentencing armoury--but because they are important issues which I hope can be clarified now.
The Earl of Mar and Kellie: I have two points about the extension period. First, would I be right in presuming that the Government expect that the maximum period laid down will be the normal amount of the extension period that will be imposed, or will there be a published scale of a ratio between custodial sentence and extended supervision? Secondly, if supervision is substantially extended, it will clearly have a considerable effect on local authority social work departments which will have to carry it out. I say that bearing in mind that we have already established that there will be no additional money for local authorities to carry out these new duties.
Lord Hardie: I should like to deal in turn with the points that have been raised. I reply first to the point raised by the noble and learned Lord, Lord Mackay of
Drumadoon, about the factors governing how the court will assess whether there is a need to protect the public from serious harm following the release of the offender. The court will be expected to go through the same exercise and to rely on similar sources of information to those on which it relies now in deciding whether there is a risk to the public. As the noble and learned Lord will be aware, the court will consider the previous behaviour of the accused and whether there is a pattern--this is particularly true with regard to sexual offences--indicating that he or she poses a risk to the public. Other information would be available to the court, for example social background reports and perhaps psychiatric reports and the like. The court would look at the circumstances of the offence and all other information available to it. The judge would have to make an assessment as to whether there was a risk of serious harm to the public.
Lord Mackay of Drumadoon: I have no difficulty with that. My difficulty lies in identifying the criteria against which the court will determine the length of time during which it is necessary to protect the public. I have no difficulty about identifying an accused man who is perceived to be a danger to the public. The factors that the noble and learned Lord have mentioned are fully understood. I have difficulty in trying to work out the length of time during which this condition (if it may be so described) exists, because that seems to me to be a necessary ingredient of the exercise of the powers bestowed upon the court by the provision.
Lord Hardie: I am grateful to the noble and learned Lord for his intervention. That picks up the question raised earlier by the noble Earl, Lord Mar and Kellie, as to whether the period of five years or 10 years, as the case may be, would automatically be the period that was fixed. I think not. I hope that the court will look at the circumstances of the individual to fix the terms that the court considers appropriate. It is difficult for me to give any clear guidelines to judges in the sense that it will automatically be eight years, five years or three years in particular cases. The courts would be entitled to call for reports from social workers if they were not already available. They would also be entitled to call for reports from psychiatrists or, more importantly, psychologists to assess the level of risk.
The whole question of risk assessment is a very novel concept in the criminal law. It is a concept with which the noble and learned Lord is familiar in civil law. I would not have thought that it was difficult for courts to develop practices and to call upon expertise to identify the level of risk in a particular case. The court would have to make a judgment on the basis of that as to the appropriate period to impose as an extension to a licence period.
The noble and learned Lord raises the question whether if a court feels that 10 years, or five years in the case of a violent offender, is too short it will automatically impose a discretionary life sentence. That would be an option open to the court. The court would have to consider all of the circumstances and decide whether it was appropriate to impose a discretionary life sentence or even a much longer fixed term followed by the 10-year maximum
period of extension in the context of this provision. These are matters within the discretion of the court. I believe that there are two options: one is the discretionary life sentence and the other is a longer fixed period plus the maximum extension. It is hoped that either of those will have the effect of protecting the public for a sufficiently long period. If an offence is committed during the extension period the offender will be recalled. I do not know whether that meets all of the concerns that have been raised.As to the difference between the five years and the 10 years, it is acknowledged that sex offenders are particularly prone to re-offend. I say that having recently attended a training weekend at Ballathie, with which the noble and learned Lord will be familiar. There we were addressed by a distinguished expert who indicated that this was a feature of sex offenders. However trivial the sex offence, it was likely that there would be a re-offence. The thinking of the Government in relation to sex offenders is that the longer period of 10 years is appropriate. If, in the context of the five-year period for violent offenders, it is considered by the Secretary of State that on the basis of experience that period is not long enough, the clause gives the Secretary of State power to make an order amending the five-year maximum extension period in the case of violent offenders, thus bringing them up to 10 years as well. In the case of an extremely violent offender one anticipates that the court will impose a sufficiently long fixed period or a discretionary life sentence, thereby affording protection of the public.
Lord Mackay of Drumadoon: I am sure that the answer given by the noble and learned Lord will be of assistance to the courts, in particular his view that the Government anticipate that judges will seek guidance from reports and experts rather than seek to decide the period to be imposed on the basis of their own experience. I am more than satisfied with the response that I have received and I withdraw my opposition to the clause.
Lord Hoyle: My Lords, I beg to move that the House do now resume. In moving this Motion I suggest that the Committee stage begins again not before 8.35 p.m.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
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