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Some of the contributions this evening were truly inspirational. I certainly cannot match the exploits of the noble Lord, Lord Young, with his trip from Land's End to John O’Groats. If someone in your Lordships' House is giving a lead and showing himself to be a role model, the noble Lord, Lord Young, is the number one candidate. He has done his bit for the environment.
The noble Viscount, Lord Falkland, has done his bit for health. His was a wonderful practical example of how one person can adjust their lifestyle to improve their life expectancy. The noble Viscount is willing and more than capable of picking up that baton and also receiving a prize. I also congratulate the noble Earl, Lord Howe, on his contribution in terms of adding to our wisdom on the subject and making the links with health. He also made two very good points, one of which I shall follow up—he made an interesting technical point about the position of electric bikes. I have heard that before, but I shall write to the noble Earl about that.
Like the noble Earl, I am attracted by the pick-up and drop-off schemes. I will not become an advocate of Boris’s mayoral candidacy, but I know that our good friend Ken Livingstone, with his big injection of funds for cycling in London is more than his equal as the cyclist’s friend. Ken recently committed to pick up on all good ideas, and we will see that as being one of the most urgent to assist with after the outcome of the mayoral elections is secure. I congratulate all noble Lords who have participated. I have greatly enjoyed this debate and if we can spread a little more sunshine in the world of the cycling fraternity then we will do your Lordships' House and the nation a good service.
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Criminal Justice and Immigration Bill
8.59 pm
Further consideration of amendments on Report resumed on Clause 13.
Lord Lloyd of Berwick moved Amendment No. 53:
The noble and learned Lord said: My Lords, in replying to the previous debate the Minister asked what it was we were trying to do. I am quite clear what I am trying to do: prevent the crisis in prison overcrowding from getting worse than it already is. For that purpose, we must confine the indeterminate sentence to those who have committed really serious offences. That means offenders who are serving a tariff of four years or more; anything less than that will achieve nothing. The Government will just be driven from one expedient to another as the overcrowding gets worse.
Of course it is a question of judgment, as the noble Lord said, but the Government’s judgment in this area has not proved very successful in the past; otherwise we would not be in the current position. When he replies to what further debate there will be—I do not suppose that there will be further debate—I hope that he will explain why, in the Government’s view, two years will be enough to solve the problem. Perhaps he will give some indication of why he takes that view. I beg to move.
Lord Thomas of Gresford: My Lords, in the reply to the previous debate the Minister confused me a little when he said that two years is four years. As I understand it, the condition in the Bill is that the notional minimum term is at least two years. That is defined in proposed subsection (3C), which states:
“The notional minimum term is the part of the sentence that the court would specify under section 82A(2) of the Sentencing Act (determination of tariff) if it imposed a sentence of imprisonment for public protection but was required to disregard the matter mentioned in section 82A(3)(b) of that Act (crediting periods of remand)”.
I do not know where this “two years means four years” comes from. It does not seem to come from that wording, but I must confess that I have not, in the 55 minutes that we were permitted for our dinner tonight, had the opportunity of looking at the sentencing Act to clarify my mind on the matter. No doubt the Minister can do so.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Hunt of Kings Heath): My Lords, I am sorry about the 55 minutes, although, as my noble friend Lord Bassam was so eloquent in responding to the riveting debate on cycling, I think that we did get our hour.
Lord Kingsland: Not entirely at the dinner table, my Lords.
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Lord Hunt of Kings Heath: My Lords, that is a fair point. We shall seek to compensate noble Lords at another stage of our consideration of the Bill.
I thought that we had discussed this issue, but we are coming back to it. I understand why the noble and learned Lord, Lord Lloyd, spoke very briefly to it. Two years is the actual custodial time. That would apply to both indeterminate sentences and extended sentences. I hoped that I had made that clear when I responded to the noble and learned Baroness, Lady Butler-Sloss.
Lord Thomas of Gresford: My Lords, it still does not explain the notional minimum term as it is positively defined in subsection (3C) on page 10. What you are disregarding is crediting periods of remand. If the threshold is the equivalent of a sentence of four years, which the Minister said it was, I want to know why.
Lord Hunt of Kings Heath: My Lords, can the noble Lord explain why he wants to know why? Does he not follow the provision or does he disagree with it?
Lord Thomas of Gresford: My Lords, the Minister said that we have a threshold of two years but that really means four years. So if you want a threshold of four years, you mean eight. I do not follow that. That may be my fault; it probably is.
Lord Hunt of Kings Heath: My Lords, two years equates to a headline sentence of four years. That is the position. If there is a difficulty with the way in which this is expressed, I am happy to follow it up in writing to the noble Lord, but my understanding is that that is what is intended by this provision.
The answer to the noble and learned Lord, Lord Lloyd, is really the one that I gave earlier, which may not have satisfied him. We think that a four-year sentence is about right. It would be unusual to receive a four-year sentence for a trivial offence. We are attempting to strike a balance between ruling out cases that are simply not serious enough to be considered in this light and allowing the courts, as I said, to detain very worrying offenders, even if their immediate offence is not so serious as to deserve an extremely weighty sentence. I know that the noble and learned Lord, Lord Lloyd, went on to describe the potential problems that he saw with persons sentenced under those provisions given the pressures on the Prison Service. I understand that, but the Government have taken, and are taking, steps, as I described earlier, to increase the resources and the priority that are given to the programmes that need to be established to enable these prisoners to satisfy the requirements of the Parole Board. That is in addition to the more general expansion in prison places in line with the Carter recommendations.
We think that the figures add up, given the provisions being introduced under the Bill. The answer is twofold. First, we think that a headline sentence of four years is about right. Secondly, given that and the other measures to reduce certain sections of the prison population—as the Bill does in a
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Lord Lloyd of Berwick: My Lords, I am grateful to the noble Lord, as one always is. But surely the purpose is not just to exclude trivial offences from the ambit of indeterminate sentences, as the noble Lord said. We must go further than that if we are serious about reducing prison overpopulation. Nothing less than a four-year measure will do that, whether it be four years as the tariff or two years as the tariff—I entirely agree that there is confusion about that. I have tried to work out what the two-year measure actually means: whether it is the equivalent of four years less a 50 per cent reduction—as we know, all sentences of a certain kind are reduced by 50 per cent—or whether it means two years literally. We must come back to that. I am afraid that I am not satisfied that merely excluding trivial offenders will make any difference at all to the present problem.
I was slightly taken by surprise when the noble Lord, Lord Bach, moved to adjourn. It would have been more sensible if we had taken a decision on this question immediately after the other decision that was taken, but we did not. In those circumstances, I will bring the matter back at Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Schedule 5 [Offences specified for the purposes of sections 225(3A) and 227(2A) of the Criminal Justice Act 2003]:
Lord Bach moved Amendment No. 54:
“Part 5InterpretationThe noble Lord said: My Lords, before I speak to the amendment, I apologise to the noble and learned Lord. It was agreed through the usual channels that the previous grouping would be the last before dinner. I mentioned that to some of his colleagues on the Cross Benches, but I am sorry that I did not mention it to him. We were already running well after 7.30 pm when the previous grouping concluded. I apologise. I should say also that we had 57 minutes for dinner—from 7.58 pm to 8.55 pm. I am sorry that we did not have the full hour.
Amendments Nos. 54 and 56 relate to provisions that disapply the threshold test for public protection sentences when an offender has certain very serious convictions, which are listed in new Schedule 15A to the Criminal Justice Act 2003 to be inserted by Schedule 5 to the Bill. It has always been our intention that this approach should apply equally to offenders who are liable, due to their youth, to a maximum penalty of detention for life or custody for life, rather than imprisonment for life. We have noted, however, that some of the listed Schedule 15A offences relating to sex offences are identified with reference to the term
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On Question, amendment agreed to.
Clause 14 [Sentences of detention for public protection]:
Clause 15 [Extended sentences for certain violent or sexual offences: persons 18 or over]:
Lord Bach moved Amendment No. 56:
On Question, amendment agreed to.
Clause 16 [Extended sentences for certain violent or sexual offences: persons under 18]:
Clause 17 [The assessment of dangerousness]:
Lord Lloyd of Berwick moved Amendment No. 59:
The noble and learned Lord said: My Lords, Clause 17 amends Section 229 of the 2003 Act, which is a key to this group of clauses. It contains the Government’s definition of dangerousness, which, as anyone who has had anything to do with dangerousness will know, is an extremely elusive subject.
Under Section 229 as it stands, the court is bound to assume dangerousness in certain circumstances. That is the effect of subsections (3) and (4) of that section. I need not go into details on that. It is a good example of the Government’s determination back in 2003 to impose their will on the judges. But subsections (3) and (4) are now to be repealed—that is a good thing, too. Instead, we are left with subsection (2). All that it does is to say that the court must take account, when assessing dangerousness, of,
of the offence and that it may take account of any information about the offender, including any previous convictions.
I have to ask whether the Government really suppose that judges have not always taken previous convictions into account when assessing dangerousness. Of course they have. What, then, is the point of telling judges that they may do what they have always done? If Clause 17 passes into law, Section 229 will serve no purpose at all. The Government’s attempt in 2003 to define dangerousness has failed and they should recognise that fact. I hope that between now and Third Reading saneness will prevail. There is simply no point in maintaining the shadow of the old Section 229 on the statute book. It should be repealed forthwith. I beg to move.
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9.15 pm
Lord Bach: My Lords, I am delighted that the noble and learned Lord is pleased that we have butchered Section 229 to the effect that he wanted. He argues—as always, with great persuasiveness—that, having butchered it, there is nothing left. Perhaps I may argue that there is something left and that it is important to leave it in the statute. I shall do so as briefly as I can.
Without Section 229, the courts would have no statutory framework at all for making an assessment of risk. They would have no specific entitlement not just to look at the circumstances of the trigger offence but also to take account of all such information as was available about the pattern of behaviour of which the offence formed part. That is a matter of particular relevance to a court which has a special responsibility for assessing an offender’s prospective dangerousness and it is a hallmark of public protection sentencing.
I hope that the noble and learned Lord will not mind my citing the case of R v Considine, which I am sure he knows extremely well. The reference is Court of Appeal, 2008, Volume 1 of the Weekly Law Reports, page 414. In it, a strong court of five judges had to decide issues surrounding the use of information that was not proven evidence but related to what information a court could use in making its assessment of risk. In that case, the Court of Appeal dismissed an appeal against an IPP given to an offender for making two threats to kill and having a knife in a public place. The question on appeal was whether the assessment of dangerousness for the purposes of Sections 225 to 229 had been based in part on inadmissible material.
The court noted that Section 229 specified that the court may take account of any information before it about the offender. It also noted that similar language is used in Section 229(2)(b) and (c), which apply to persons with no previous convictions, and those two paragraphs would remain in Section 229. The court held that,
- “as a matter of statutory construction, relevant information bearing on the assessment of dangerousness may take the form of material adverse to the offender which is not substantiated or proved by criminal convictions”.
We do not agree with the suggestion that Section 229 is unnecessary and that courts would be entitled to look at all such information anyway. The information that a court can take into account is affected by the purpose for which the court is considering it.
The Court of Appeal interpreted Section 229 and the special public protection policy function that it serves. It held that the sentencing judge was entitled to take into account information that would have been excluded if he had been considering the punishment element of the sentence to be imposed. When assessing the risk of dangerousness, the court does so not for the sake of punishing the offender but for the purpose of protecting the public by determining whether the offender is dangerous and thus potentially liable to a public protection sentence. We argue that this policy dimension is served by the language that remains in Section 229 and that it should be maintained.
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I take the point made by the noble and learned Lord about previous convictions. We think that there is an advantage in making it clear to criminal justice agencies and to the general public, if not to learned judges, that previous convictions are, of course, very relevant to the assessment of risk. We believe that makes it transparent and encourages confidence. I rely, in arguing with the noble and learned Lord, on the information parts of Section 229(2); in other words, new subsections (2A) and (2)(aa).
Lord Thomas of Gresford: My Lords, has there been a challenge to the Court of Appeal decision to which he refers, either in the House of Lords or the Court of Human Rights?
Lord Bach: My Lords, I am afraid I do not know the answer to that question. The case was heard on 2 May. I now know the answer and there has been no challenge to the judgment of the court.
Lord Lloyd of Berwick: My Lords, I am grateful to the noble Lord. I shall look at the case to which he has referred. It is important for the House to appreciate that the courts have been passing life sentences for the protection of the public for as long as I can remember. They have never needed any statutory authority to make an assessment of dangerousness. Clearly established in all the textbooks is the fact that a life sentence for the protection of the public can be, and always has been, capable of being passed on three conditions: first, that the offence was one which of itself carried the maximum sentence of life imprisonment; secondly, that the particular offence was itself sufficiently grave to justify a very long sentence; and, thirdly, necessarily, that the court had to be satisfied from the offender’s criminal record, from his past history or from any relevant medical evidence that he was a grave danger to the public. No statutory authority was required for that. That is what the courts have always done. That is why I suggest that Clause 17 now serves no conceivable purpose other than stating what the courts already do, but I shall certainly look at the case that has been referred to.
Lord Bach: My Lords, the noble and learned Lord says that Clause 17 serves no useful purpose. Does he mean Section 229?
Lord Lloyd of Berwick: My Lords, I am so sorry, of course, Section 229. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 19 [Indeterminate sentences: determination of tariffs]:
Lord Lloyd of Berwick moved Amendment No. 60:
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