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The noble Lord asked what happens if the three previous offences are more severe and demanded more than a simple fine. I will reply to that as best I can. This is not new. Section 151 of the Criminal Justice Act 2003, although not in force, has been law for some time. The Government do not believe that it lacks logic. Where previous offences were severely dealt with by a community order because they deserved one—they reached that tariff—it would seem overburdensome, even unfair, for them to count again towards another community order. We think that, if persistent offenders keep committing offences for which a fine is the appropriate penalty, the time comes when the court needs to have the power to say, “A fine is obviously not stopping you doing this, so you now move up a bracket and you go up to being deserving of a community order”. It is that eventuality, which has been on the statute book now for some years but has not yet been implemented, that we are replicating in Clause 12 of this Bill.
Lord Kingsland: I am most grateful to the Minister for his reply. Like the Prison Service, the Probation Service is under tremendous pressure. If I have understood him correctly, the main motive for this provision is to take some of the pressure off the Probation Service by requiring these three hurdles—the three fines—to be leapt before a community order can be imposed. Essentially, a resources factor is driving the Government’s approach to this clause. I am really asking the Government whether that is the right way to fetter the discretion of the magistrates. They have to deal with individual cases and there will be circumstances in which new subsection (1A)(b) under Clause 12(5) will fetter their discretion in a way that they will, inevitably, consider wholly inappropriate.
We take the view that discretion should be retained to decide on whether a community disposition should be made, irrespective of the number of times that fines had been levied previously. Given that view, would the Government be attracted by an alternative approach, whereby guidance is issued rather than there being a legal requirement under the Bill?
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Lord Bach: What we say here, as I understand it—if I am wrong, I will be corrected—is that a community sentence becomes, as it were, available if someone commits three separate offences and is fined three times. However, just because that person becomes liable for a community sentence does not mean that they necessarily receive one. The Sentencing Guidelines Council guidelines published in December 2004, New Sentences: Criminal Justice Act 2003, which cover the imposition of community orders, say:
“Sentencers must consider all of the disposals available (within or below the threshold passed) at the time of sentence, and reject them before reaching a provisional decision to make a community sentence, so that even where the threshold for a community sentence has been passed a financial penalty or discharge may still be an appropriate penalty”.
If those sentencing guidelines are followed, the magistrates may decide that the offender merits a community sentence but may still decide to fine him or discharge him. In other words, their discretion is not fettered.
Lord Kingsland: Precisely. Why, therefore, do the Government want to go beyond that in Clause 12?
Lord Bach: In Clause 12, we are setting out, as I understand it, various guidelines for the court to follow. We are saying in the clause that a community order should not be made unless an offence is punishable with imprisonment. It is not as though that concept is new; it existed in law until, as I understand it, 2003. We say that because we want the Probation Service’s resources to be used for serious offenders in particular and for those who we think may gain from the supervision and training that probation can bring.
Lord Kingsland: I entirely understand what the Government’s motive is; I am simply suggesting to the noble Lord that this matter would be better dealt with by guidance than by statute. I think that we have probably talked this through as much as we need to do at this stage, but I shall certainly consider bringing this matter back on Report.
Clause 13 [Sentences of imprisonment for public protection]:
Lord Bach moved Amendment No. 80A:
The noble Lord said: This long series of government amendments attempts to refine new Schedule 15A, which I am sure we will discuss in due course, which this Bill proposes to insert into the Criminal Justice Act 2003. New Schedule 15A sets out a relatively small list of particularly grave offences that can render an offender liable to a public protection sentence even where his or her immediate offence does not meet the two-year minimum tariff threshold. So, if an offender has a previous conviction for one of these offences—a Schedule 15A offence—and on a future occasion commits a further sexual or violent offence, the courts will have the power to impose a public protection sentence upon him or her even where that tariff for the instant offence is below the two-year threshold.
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We are clarifying the schedule in several respects. We wish to put beyond doubt the fact that previous convictions for the inchoate versions of the listed offences will qualify for a public protection sentence even where the trigger offence does not meet the two-year threshold. The amendments in this respect reflect law reform developments by referring to the provisions of Part 2 of the Serious Crime Act 2007, which now govern the position on encouraging or assisting offences. Similarly, new Schedule 15A is amended to include reference to an offender who aided or abetted the commission of an offence that is listed in the schedule.
We think that these are sensible clarifications of the scope of new Schedule 15A and will enhance public protection. I hope that the Committee will agree that an offender may play a substantial role through inchoate offences; that he may be no less dangerous, because, for example, he was interrupted or prevented in the course of the offence; or that he may have been an accessory to the committed previous offence.
It will remain the case that there is judicial discretion in whether a public protection sentence is given. The court will not be obliged to impose a public protection sentence simply because an offender has a previous conviction for an offence listed in new Schedule 15A; but it may do so if in the circumstances it thinks that that is appropriate.
We are also including the offence of murder in new Schedule 15A. If an offender who has been released on licence from prison for murder commits a further violent or sexual offence, he will qualify for a further public protection sentence even if the further offence would be below the two-year threshold. While in practice this may make little difference, given that all murderers will be on life licence, we accept that its inclusion is logical and makes the law more complete.
In this group of government amendments, we also include offences under service law that correspond with the offences listed in Schedule 15A. This provision is not without precedent. A similar form is used in Schedules 3 and 5 of the Sexual Offences Act 2003 to set out the offences that make an offender liable to the imposition of a sexual offences prevention order. It also reflects the drafting approach used in Schedule 34 to this Bill for the purposes of construing the meaning of “child sex offences”. I beg to move.
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Lord Thomas of Gresford: Why are the words,
being omitted? Does that mean that the provision would apply if the person had been convicted of the offences, or their equivalent, anywhere in the world? What is the purpose of excising those words?
Lord Bach: I apologise for rising very slowly to my feet; the noble Lord deserves an answer. The phrase is being deleted because of the addition of service offences, which, if I remember my service law right, can be committed outside the United Kingdom.
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Lord Thomas of Gresford: Now that the Minister has given that explanation—which took two Ministers to discover—does he think that that should be made explicit? The word “convicted” can refer to the whole world. Why does he not table an amendment that refers to being convicted under service law, or words to that effect?
Lord Bach: The whole world is involved because British service personnel can sometimes be found in any country in the world. I will of course consider what the noble Lord suggests.
Lord Thomas of Gresford: I was referring not so much to the place as to the jurisdiction of anywhere in the world. The Minister is telling us that he is referring to the service jurisdiction anywhere in the world, not to any court anywhere in the world.
On Question, amendment agreed to.
Lord Kingsland moved Amendment No. 81:
The noble Lord said: This amendment concerns IPPs. In moving it, I am aware that I will be opposed not only by the Government but also by the noble and learned Lord, Lord Lloyd of Berwick. It is so rare that I find myself in discordance with the noble and learned Lord, Lord Lloyd, that I thought that I should mark the occasion by an introductory observation.
The conditions for imposing an IPP are: first, that the crime must be one of 153 specified sexual or violent offences; secondly, that the offence must be capable of attracting a sentence of 10 or more years of imprisonment; and, thirdly, the offender must pose a significant risk of causing death or serious injury by the commission of further offences. In such cases, the judge must impose an IPP. The offender must serve a minimum tariff before he can be considered for release but can be held in custody as long as he is considered to pose a threat to public safety.
The latest figures indicate that at least half of all sentences given for threats to kill, child sex offences, arson and sexual assault, resulted in a tariff of less than two years. That means that if the Government press ahead with their plans, those individuals will not be eligible for IPPs, given that their sentence length would be below the “to be introduced” threshold. Does the Minister accept that there is a reason that judges sentence people to IPPs and that it is because they are dangerous? Why are the Government so keen to remove this power from the courts? Is it not the case that these proposed changes are dangerous and have more to do with reducing the prison population than protecting the public?
By definition, the offenders who would now no longer be eligible to receive IPPs would be those who had committed serious sexual or violent offences and who posed a significant risk of causing death or serious injury by reoffending, but where the offence for which they were being sentenced would otherwise have carried a fixed-term sentence of less than four years. I beg to move.
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The Deputy Chairman of Committees (Viscount Ullswater): I must advise the Committee that if this amendment is agreed to, I shall be unable to call Amendment No. 82 because of pre-emption.
Lord Lloyd of Berwick: I had intended to make a rather lengthy speech on this amendment, but in view of the time I shall cut it short. The Government have accepted that the effect of Sections 225 to 229 of the 2003 Act has been other than the expected. Mr David Hanson, the Minister in charge of the Bill, described the relevant provisions as well-meaning, but he then went on to say that they no longer serve a proper purpose. I agree, but I think that it is a serious understatement.
In truth, the effect of the relevant provisions has been catastrophic. They are one of the major causes of overcrowding in our prisons today. Anne Owers, the Chief Inspector of Prisons, dealt with indeterminate sentences at some length in her very recent report. She described what had happened as a debacle. Does the noble Lord agree with that description? I suspect he does because there are now over 3,400 men in prisons serving indeterminate sentences, nearly half of them for relatively minor offences for which the tariff would be less than two years. The number is increasing at the rate of 150 a month.
Many of those at the lower end of the scale have already completed their tariff, but they cannot get before the Parole Board, which would be their next step, for two main reasons. First, the Parole Board is grossly overburdened. The board estimates that if things go on as they are, they will need to make room for a staggering 4,000 hearings in 2009-10. The word “staggering” is not mine but is that of Anne Owers. Secondly, those who wish to go before the Parole Board cannot do so because, as the prisons are so overcrowded, they cannot get on to the training courses that they need to complete before they can apply to the Parole Board. As the Lord Chief Justice said in a recent speech, we cannot go on like this.
Happily, the Government have now at last recognised the mistakes that they made in 2003, hence Clauses 13 to 17 of the Bill, which go a certain way in the right direction, but not, in my view, anything like far enough. That is the purpose of my later amendments.
I must turn to the Conservative Opposition. What is their attitude to all this? Do they support the Government in their belated attempt to do something about the crisis in our prisons or do they not? I regret very much to say that the answer must be that they do not. Of course, they are entitled to say, as they do, that overcrowding is all the Government’s fault and that they should have built more prisons. Of course, they can make, and are right to make, a strong political point about prison building, but the crisis in prisons is now too serious and too urgent for political point-scoring of that kind by either side. In a recent speech, the Lord Chief Justice called for a national debate on the whole question of prisons and sentencing. He added this warning:
“Such a debate will be of no avail, indeed it will probably not be a possibility, unless those taking part are prepared to put to one side the opportunities that this subject always provides for scoring political points and to consider, objectively, what is in the best interests of our society”.
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Surely it is now up to the main political parties to put aside their fears of being thought soft on crime and to think instead of the injustice being done to those serving indeterminate sentences for minor crimes without any certainty of being able to put their case before the Parole Board and who are now, therefore, without any hope of early release. Above all, we must not make the situation worse by adding to their number, which is what would be the effect of Amendment No. 81. The purpose of that amendment, we are told, is to leave Section 225 as it is, to remove the proposed threshold of two years. If so, the indeterminate sentence will remain available for those who have committed quite minor crimes. If that is the purpose, it will only make overcrowding worse. The Conservative Opposition are moving in the wrong direction and I oppose the amendment.
I add one last point. The effect of the amendment may be something quite other than what the noble Lord assumes. If you leave out new subsection (3B), as the amendment proposes, the indeterminate sentence could be imposed only where the offender has previously committed a very serious offence such as murder or rape, as set out in Schedule 6, which covers only 22 very serious offences compared with the existing 153 offences under the old Schedule 5. So the effect of the amendment would be to reduce the number of those for whom an indeterminate sentence is available. If that is the effect of the amendment, as I believe it to be, though I may well be wrong, I would support it. But I would still prefer to reduce the number by increasing the notional minimum term from two to four years. In the mean time, I wait to hear whether my reading of the effect of the amendment is as I say.
Lord Ramsbotham: Like the noble and learned Lord, Lord Lloyd, I shall be brief. In the context of this amendment, I had hoped to pay some attention to the conduct of the sentence itself. When this was first announced in the 2003 Act, a number of us were very concerned about what it would mean for the Prison Service’s ability to do what it should be doing with and for prisoners on behalf of the public. All our worst fears have come to pass: not only are the prisons choked with people; the Prison Service simply does not have the resources, people, programmes or anything else that is needed to do what needs to be done with and for these people.
I had hoped to link the problem of dealing with indeterminate-sentenced prisoners with the number of those who are sentenced for natural life. There is no doubt but that some people’s dangerousness continues in such a way that the indeterminateness of their sentence means they will never be released. I say that because one group that always concerned me as chief inspector were those who had been sentenced to natural life and for whom there was no hope of release, so they had nothing positive to aim for. Not only was there nothing positive for them; the situation also had an enormous effect on prison staff. One aspect of this sentence which has not been given due credence or attention is the impact on prison staff of having to deal with this group of prisoners who become more suicidal, difficult and frustrated. They
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7.30 pm
Lord Hunt of Kings Heath: This has been an interesting introduction to a number of amendments that we shall deal with in relation to indeterminate sentences. The Government very much welcome the opportunity for a serious debate on these matters. My right honourable friend the Lord Chancellor has signalled that he is very much prepared for a serious debate. I also think that the recommendations in the report of my noble friend Lord Carter, particularly on a sentencing framework for the future, on which work led by a senior member of the judiciary has now been done, may offer a constructive way of dealing with these matters in a sober and mature way. They will ensure that we are in kilter with the legislation, the action of sentencers and the question of the prison population. I am sure that that is a constructive way in which to go forward.
We have had a good introduction from the noble Lord, Lord Kingsland, and others on the reason why public protection sentences were introduced. They were to protect the public and it is clear that the courts have taken up the use of those sentences in substantial numbers. There have proved to be issues with the focus and operation of sentences. Perhaps we are following the law of the noble Lord, Lord Elystan-Morgan, but it had not been foreseen that many IP prisoners would have such short tariffs, although the legislation as it stands does not prevent that. The figures I have suggest that around 30 per cent now receive a tariff of two years or less. The average for all IPPs is 38 months and the record so far is 28 days. Aside from the question this raises as to whether the sentences are at an appropriate level of risk management for offenders whose trigger offence justifies only a low tariff, clearly, on a practical level short-tariff prisoners are difficult for correctional services to manage and a disproportionate amount of resources are used in trying to do so. As noble Lords have said, they make great demands on the Prison Service, which must prepare them to appear before the Parole Board, and on the Parole Board in terms of its workload, about which we heard something recently.
At the end of January there were 3,850 offenders in prison serving an IPP. I understand that 17 IP prisoners have so far been released and it is predicted that the potential IPP population could grow to around 12,500 by 2011. We have already taken measures to assist the situation of those currently in prison on indeterminate sentences, but we believe that that is not sufficient to deal with the particular issue that we face. The statute is being reformed to ensure better use of the sentence and to enable us to manage risk more effectively across the piece.
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My right honourable friend the Lord Chancellor announced his intention to make changes to this legislation and in particular to impose a seriousness threshold that should be met before an indeterminate sentence can be imposed. My noble friend Lord Carter of Coles recommended this approach in his review. We have already heard the comments of Anne Owers, Her Majesty’s Chief Inspector of Prisons, in support of that intention.
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