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2 Apr 2008 : Column 1100

Lord Hunt of Kings Heath: My Lords, I think it was made clear that if the amendment in the name of the noble Lord, Lord Kingsland, were passed, the noble and learned Lord, Lord Lloyd, would not be able to move his Amendment No. 53. That is my understanding of the position. This is Report stage, not Committee. The noble Lord might address whether he agrees that his amendment does not actually achieve what we think he wants to achieve, as that is causing the problem.

Lord Kingsland: My Lords, that is not our view. This amendment came from another place; another place has looked at the speech of the noble and learned Lord, Lord Lloyd, and at the Minister's letter, and the view is retained that the amendment achieves what it sets out to do. I know that that is not the Government’s view but it is the view that I must sustain at the Dispatch Box.

Lord Lloyd of Berwick: My Lords, it seems as though I must now address my amendments, which I am very happy to do. In doing so, perhaps I may also address Amendments Nos. 57 and 58, under other clauses, which relate to extended sentences. It will save time if I deal with them together because they relate to the same point. The noble Lord knows the arguments which I wish to advance, so I can be brief.

Everyone accepts that it is the duty of the Government to protect the public, in so far as the public can be protected, from very dangerous offenders. That was the purpose of Section 225 of the 2003 Act. However, the Government now accept that the provisions in Section 225 of the 2003 Act have misfired. Mr David Hanson in the other place accepts that the provision no longer serves what he described as a proper purpose. It is not serving a proper purpose because it catches offenders who ought not to be caught; it is catching criminals who are guilty of quite minor offences of violence and yet are being made subject to indefinite sentences of imprisonment. As my noble friend Lady Stern said, it is catching children and subjecting them to indefinite sentences of imprisonment.

As a consequence, there will soon be some 5,000 offenders serving indefinite sentences, which is far in excess of what was ever anticipated. The number is increasing at the rate of 1,800 a year, and it is estimated by the Home Office that it will exceed 12,000 by 2011. With a population of prisoners now estimated to exceed 85,000 by this time next year—the answer which the noble Lord gave in reply to my noble friend on Monday—it is quite clear that something has to be done urgently to inhibit any further increase in the number of those serving indeterminate sentences. That is the view of the Chief Inspector of Prisons in her recent report and the view of the noble Lord, Lord Carter of Coles. Happily, the Government have accepted that view and, as a result, Clause 30 will give judges a discretion whether to impose an indeterminate sentence or not. The word now is “may”—not “must”. That is clearly a step in the right direction, for which we must all be grateful. Moreover, under Clause 13, indeterminate sentences will be available only where the tariff is two years or more, which is another step in the right direction. But it goes nothing like far enough to make any difference to the present problem of overcrowding.

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7.30 pm

If we are to stop overcrowding getting worse, let alone reduce the present level of overcrowding, the indeterminate sentence must be reserved now for really serious offenders; in other words, those with tariffs of four years or more. And that is the purpose of my amendment. It will be said no doubt that whether one chooses two years or four is a matter of judgment. That is of course true, but the judgment should be based on facts and not on political expediency. The crucial fact here is the remorseless increase in the prison population.

The indeterminate sentence is also a cause of great injustice. Those who have served their tariff sentence remain in prison indefinitely in the hope that they will in due course come before the Parole Board, but the Parole Board is already overstretched and its position will become a great deal worse during the coming year. That there are people in prison who are waiting to go before the Parole Board and who have served their tariff sentence is a possible cause of unrest in prisons.

There are two reasons for supporting the amendment. In the first place, we can do something now about overcrowding and prevent a situation which is already bad getting worse. Secondly, we can do something to remedy a source of serious injustice to those who are serving these sentences.

Baroness Butler-Sloss: My Lords, I support the principle of the government amendment. I also support the further amendment of the noble and learned Lord, Lord Lloyd of Berwick, for the reasons which he gave. I was dismayed to hear the noble Lord, Lord Kingsland, suggest that there was no correlation between the sentence of imprisonment for an offence and the degree of danger. I find it improbable that somebody who was given a sentence of 28 days, which I understand was in one case given with an indeterminate sentence, was really so dangerous that they had to be kept in prison indefinitely, but their offence was so minor that it resulted in only 28 days. I understand that a considerable number of sentences have been very much less than one year. All of that leads me to think that the system as it has been working—and as I understand the Conservative Benches would wish it to work from the way in which they interpret their amendment—would allow 28 days to continue in the future, which is profoundly wrong. I strongly support the Government, but even more so the noble and learned Lord, Lord Lloyd of Berwick.

Lord Ramsbotham: My Lords, like my noble and learned friend, I support the spirit and principle of what the Government and my noble and learned friend Lord Lloyd have said. The key word in all this is surely “risk”. There is no doubt that there are some people who go to prison who are such a risk to the public that their release must always be a matter for conjecture. If you talk to prison governors about the people who give them most concern, they invariably refer to paedophiles and sex offenders, for whom there is always going to be a doubt about whether they will be fit for return to society, not least because, tragically, many of them have an ambivalent view about what they have done, having themselves been victims. But that is not the subject of this amendment.

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We are clearing up yet another example of a knee-jerk introduction in the 2003 Act which was not subject to proper regulatory impact assessment. Although the introduction was right, the impact on the Prison Service has been disastrous, with vast numbers of people awaiting courses in order to be released. The impact has been disastrous, too, on the Parole Board, and it is only going to get worse. Therefore, while I entirely support the principle, it seems to me that what needs to be done is for us to look at what the impact of the proposed increase to four or seven years is assessed to be, but also at the impact on the Prison Service and Parole Board to see whether they can deliver what needs to be delivered to make the thing work. The whole system becomes discredited if it cannot do what it imposes in its Bills.

Lord Elystan-Morgan: My Lords, I support wholeheartedly the amendment in the name of the noble and learned Lord, Lord Lloyd of Berwick. There is every reason why the House should support the amendments. The Government are to be congratulated on their attitude to the relevant provisions of the Act of 2003. It is very proper that the matter should be left to general judicial discretion rather than be made mandatory. On the other hand, I say with the greatest respect that the Government are failing to be loyal to their own logic in setting a threshold that is much too low.

It is obvious that there is a relationship between the initial sentence threshold and the risk. When a court is considering the risk, it should ask what the best evidence is. The best evidence is the offence with which it is dealing: it is what the man has done. Therefore, for all those reasons, the amendment should receive the wholehearted support of the House.

Lord Hunt of Kings Heath: My Lords, I wonder whether it would be for the convenience of the House if I posed a question to the noble and learned Lord, Lord Lloyd. It seems that he has grouped in this debate his Amendments Nos. 53, 55, 57 and 58. If that is so, might I respond to them? He of course reserves the right to put them to the vote when they are called. Would it be useful if I did that?

Lord Lloyd of Berwick: My Lords, that is entirely what I intended for the Minister to do.

Lord Hunt of Kings Heath: My Lords, I am most grateful to the noble and learned Lord. I asked the noble Lord, Lord Kingsland, what he thought about his own amendment, in a sense, because, as the noble and learned Lord, Lord Lloyd, suggested, and I said in Committee, we think that it would not achieve what he seeks, and would restrict IPPs in a way which he would not want. I think that there is general agreement about that.

Clause 13 amends Section 225 of the Criminal Justice Act 2003 by setting out two new conditions, one of which must be met before the court can impose an IPP. One of those conditions is the two-year threshold; the other is a previous conviction for one of the shortlist of extremely serious offences set out in new Schedule 15A to the Criminal Justice Act 2003, which can be found in Schedule 5 to this Bill.

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The amendment of the noble Lord, Lord Kingsland, would remove entirely the threshold condition, in new subsection (3B), without making any further consequential amendment. It leaves the other condition intact. Our reading of it is that it leaves a statute whereby a court may impose an IPP where only the first condition is met; that is, that the offender must have a previous conviction for one of the shortlist of extremely serious offences set out in new Schedule 15A.

A substantial number of IPPs have been given out by the courts. It was certainly not foreseen by the Government that high numbers of IPPs would be given with very short tariffs. I said in Committee that about 30 per cent of offenders receive a tariff of two years or less. The average tariff for all IPP sentences is 38 months and, as the noble and learned Baroness, Lady Butler-Sloss, said, the shortest tariff recorded so far is just 28 days. That clearly raises serious questions about whether the sentences can provide an appropriate degree of risk management for those offenders who have received only a very short tariff.

On a practical level, as a number of noble Lords have already observed, such sentences can create great management difficulties. I do not need to go into great detail, but they present an enormous challenge to the service, which is a matter of considerable concern to noble Lords. Prison staff are under instructions to prioritise indeterminate sentence prisoners with short tariffs and to move them as quickly as possible to establishments where their offending behaviour needs can be addressed so that they can go through the structure and their case can then be considered appropriately by the Parole Board. We have also increased provision. The number of core offending behaviour courses has risen from 14,000 in 2004-05 to 18,000 in 2006-07, and additional funding has been given for the implementation of offender management in prisons.

However, welcome as those improved measures are, they are clearly not enough to deal with the problem that we face. That is why we are proposing that the statute be changed to ensure that courts are able to make more targeted use of the sentences. The noble Lord, Lord Kingsland, suggested that the seriousness of the trigger offence bore no relation to the degree of risk presented by the offender. The noble and learned Baroness, Lady Butler-Sloss, responded in vigorous terms that I can only endorse. We think there is an association between the assessment of an offence and the risk of future offending and causing future harm, which is reflected in the sentence, although it is but one factor in the risk assessment undertaken in the courts.

The noble Lord, Lord Kingsland, referred to the comments made by the noble Lord, Lord Neill. IPPs per se have not been held incompatible with the ECHR. We certified that they were compatible on introducing the 2003 Bill. The noble Lord, Lord Kingsland, may have had in mind the judgment in the Divisional Court in the case of Walker and James that the Secretary of State for Justice had acted irrationally in failing to provide the necessary resources to support the delivery of offending behaviour programmes for IPP prisoners

2 Apr 2008 : Column 1104

so that they can be considered for release by the Parole Board as soon as their tariff has expired. The Court of Appeal upheld that judgment—I am sure the noble Lord, Lord Kingsland, knew that—and made a declaratory statement. It also indicated that if an IPP prisoner were held in custody for an unreasonably long time after a tariff that was not defined by the court, he would have a case for a judicial review under Articles 51 and 54 of the ECHR. Walker and James did not receive the remedy of release as they were not considered to have exceeded their tariff by an unreasonable time.

7.45 pm

As the noble Lord, Lord Kingsland, raised the question of risk, I shall point out that there is an exception to the seriousness threshold where offenders have previous convictions for certain very serious offences. We believe that in certain cases it may be advisable to impose a public protection sentence even though the threshold has not been reached for the current offence. Those cases are where an offender has already demonstrated that he or she is capable of very serious crimes. The relevant offences are those that invoke the “two strikes” or “automatic life” provision of the Powers of Criminal Courts (Sentencing) Act 2000, which was incorporated in 2005 into the dangerous offenders legislation. The list includes soliciting and conspiring to commit murder, manslaughter, grievous bodily harm with intent, robbery with firearm, and possession of firearm with criminal intent. The sexual offences covered are rape, rape of a child, and other offences involving very serious sexual activity without consent. These additional sexual offences were introduced in the Sexual Offences Act 2003. I should also make it clear that public protection sentences are not the only risk-management tool that protects the public from sexual and violent offenders. We believe that there is sufficient discretion and that the courts will still be able to give IPPs where they are needed.

I listened with great care to the speech the noble and learned Lord, Lord Lloyd, made on his amendment. He welcomed the changes that the Government have put down, but would prefer to go further in the way that his amendment suggests. Rather like the debate on the custody threshold in relation to youth justice, it is a question of judgment whether the Government have this right or whether the noble and learned Lord has. He met my right honourable friend the Lord Chancellor to discuss this, which was very helpful, but after careful consideration we think that the minimum two years in custody is the most appropriate threshold because it equates to a headline sentence of four years. We do not think that is an inevitable sentence. It would be unusual to receive a four-year sentence for a trivial offence. We are trying to strike a balance between ruling out cases that are not serious enough to be considered in this light and allowing the court to detain worrying offenders, even if their immediate offence is not so serious as to deserve an extremely weighty sentence. Under the regime prior to the 2003 Act, four years was the cut-off point in length of sentence between the offender being automatically released at the half-way point and being released at the

2 Apr 2008 : Column 1105

discretion of the Parole Board. Of course, we are now talking about a different system, but my reflection of the previous regime shows that four years with two years’ actual custody was considered a threshold beyond which risk management came more into play, which is one of the rationales for the period that the Government have chosen.

I realise that this is a matter of judgment. I understand that a number of noble Lords feel that we have not gone far enough. The noble Lord, Lord Kingsland, feels we have gone too far. I happily put the proposition that maybe we have the balance right. I hope that if he is determined to press his amendment to the vote, it will not receive the support of the House.

Baroness Butler-Sloss: My Lords, I may be a little slow on this, but is the sentence that we are talking about—two years—the sentence awarded by the court or the sentence served by the prisoner after whatever remission is appropriate?

Lord Hunt of Kings Heath: My Lords, the noble and learned Baroness could never be described as slow. It is the latter.

Lord Kingsland: My Lords, I am of course most grateful to all your Lordships who have participated in this debate and the Minister for his reply. I think that this is the first time that I have tabled an amendment during the course of this Bill that has been received with such universal obloquy. I very much respect the quality of the arguments that have been advanced against my case.

Nevertheless, the Opposition take this matter extremely seriously and we continue to think—I say this despite the perspicacious observations made by the noble and learned Baroness, Lady Butler-Sloss—that judges conduct an entirely separate assessment between the sentencing assessment and the assessment of danger. For those reasons, we believe that the Government's approach in this case is wrong-headed. On that basis, I wish to test the opinion of the House.

7.49 pm

On Question, Whether the said amendment (No. 52) shall be agreed to?

Their Lordships divided: Contents, 41; Not-Contents, 121.

Division No. 3


Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Byford, B.
Cathcart, E. [Teller]
Colville of Culross, V.
De Mauley, L.
Denham, L.
Dundee, E.
Fellowes, L.
Fookes, B.
Geddes, L.
Griffiths of Fforestfach, L.
Hamilton of Epsom, L.
Hanham, B.
Henley, L.
Hooper, B.
Howard of Rising, L.
Inglewood, L.
King of Bridgwater, L.
Kingsland, L.
Lawson of Blaby, L.
Luke, L.

2 Apr 2008 : Column 1106

Maginnis of Drumglass, L.
Mancroft, L.
Montrose, D.
Morris of Bolton, B.
Norton of Louth, L.
O'Cathain, B.
Patten, L.
Pilkington of Oxenford, L.
Plumb, L.
Sanderson of Bowden, L.
Seccombe, B. [Teller]
Sheikh, L.
Shephard of Northwold, B.
Taylor of Holbeach, L.
Ullswater, V.
Verma, B.
Waddington, L.
Wilcox, B.


Acton, L.
Adams of Craigielea, B.
Addington, L.
Adonis, L.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B. [Lord President.]
Bach, L.
Barker, B.
Bassam of Brighton, L.
Berkeley, L.
Bernstein of Craigweil, L.
Bilston, L.
Blackstone, B.
Boyd of Duncansby, L.
Brennan, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Butler-Sloss, B.
Campbell-Savours, L.
Clark of Windermere, L.
Corbett of Castle Vale, L.
Cotter, L.
Craigavon, V.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Desai, L.
Dixon, L.
Donoughue, L.
D'Souza, B.
Dubs, L.
Elder, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Falkland, V.
Falkner of Margravine, B.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Ford, B.
Foster of Bishop Auckland, L.
Gale, B.
Gibson of Market Rasen, B.
Gilbert, L.
Golding, B.
Gould of Potternewton, B.
Grantchester, L.
Grocott, L.
Harris of Haringey, L.
Harrison, L.
Haskel, L.
Haworth, L.
Hilton of Eggardon, B.
Howe of Idlicote, B.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Jones, L.
Jones of Whitchurch, B.
Kinnock, L.
Kirkwood of Kirkhope, L.
Livsey of Talgarth, L.
Lloyd of Berwick, L.
Lofthouse of Pontefract, L.
Low of Dalston, L.
Macaulay of Bragar, L.
McIntosh of Haringey, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
McNally, L.
Maddock, B.
Malloch-Brown, L.
Masham of Ilton, B.
Maxton, L.
Monson, L.
Morgan of Drefelin, B.
Morris of Handsworth, L.
Moser, L.
Murphy, B.
Northover, B.
O'Neill of Clackmannan, L.
Park of Monmouth, B.
Pendry, L.
Pitkeathley, B.
Prosser, B.
Quin, B.
Ramsbotham, L.
Roberts of Llandudno, L.
Robertson of Port Ellen, L.
Rooker, L.
Roper, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B. [Teller]
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Shutt of Greetland, L.
Simon, V.
Smith of Finsbury, L.
Soley, L.
Stern, B.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Bolton, B.
Thomas of Gresford, L.
Thornton, B.
Tomlinson, L.
Tunnicliffe, L.
Wall of New Barnet, B.
Walmsley, B.
Walton of Detchant, L.
Watson of Richmond, L.
West of Spithead, L.
Williams of Crosby, B.
Woolmer of Leeds, L.
Young of Norwood Green, L.

Resolved in the negative, and amendment disagreed to accordingly.

2 Apr 2008 : Column 1107

Lord Bach: My Lords, I beg to move that further consideration on Report be now adjourned. In moving this Motion, I suggest that Report begin again not before 8.55 pm.

Moved accordingly, and, on Question, Motion agreed to.

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