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Lord Lloyd of Berwick: My Lords, I am very grateful to the noble Lord, Lord Bach, as ever, for his reply. I am always impressed by his arguments, and I am sure that I was impressed by the argument that he advanced in the case in which he said he appeared before me, although I cannot pretend that I remember much about it. However, there is one thing that he said that concerns mehis reference to the fact that he has consulted informally senior members of the judiciary. I am not sure that that is really good practice. I do not think that things should be referred to that have been discussed informally with the judiciary, because we are not in a position to know what exactly the judges have
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The noble Lord said: My Lords, I shall speak also to Amendments Nos. 6 to 10. Amendments Nos. 5 to 9 refer to what is now Clause 28, which must be one of the most opaque clauses in the Bill and, when the Bill becomes law, it will become one the most opaque sections on the statute book. It deals with three distinct classes of offenders.
The first group concerns offenders serving a determinate sentence for offences that are neither violent nor of a sexual nature. The second group concerns those who have received determinate sentences where they are serving sentences for crimes of a sexual or violent nature, or have been assessed as unsuitable for automatic re-release because they present a risk of serious harm. The third and final category covers those offenders who have committed sexual or violent offences and who are serving extended sentences.
In the case of the first category of offenders, if they have been assessed as not presenting any risk of harm to the public and are recalled, the Bill stipulates that they will be in prison for a fixed period of 28 days, at which time they will automatically be re-released. Clause 28 gives the Government power by statutory instrument to alter the figure of 28 days. Two of our amendments seek to remove the power that is available to the Government in the Bill.
In the case of the two other categories of prisoner to which I have referred, the Bill gives the Secretary of State and, in certain circumstances, the Parole Board the power to take decisions about the prisoners release. Other amendments in our group affecting Clause 28Amendments Nos. 5, 7 and 8seek to insert an extra decision-maker in decisions about release; a Crown Court judge. We believe that it is wrong that decisions about the fate of such prisoners should lie solely in the hands of the Executive. We believe that someone who is properly qualified, outside the Executive, should also play a part in the decision-making process. That is why we propose to add to the Bill,
There is one other amendment in the group, Amendment No. 10; it refers to Clause 30. It concerns the recall of those offenders who have received a life sentence but who are now out on licence. Once again, the Bill gives the discretion to recall those former prisoners to the Secretary of State and, in certain circumstances, to the Parole Board. A recent decision of the Court of Appeal suggested that the Parole Board, at least in certain circumstances, is not independent of the Secretary of State. Once again, we believe that another party should be involved in decisions about those who have received a life sentence but who are now out on licence. In this case, our amendment inserts a reference to the Lord Chief Justice.
Lord Bach: My Lords, I am grateful to the noble Lord for tabling the amendments. These are important matters and they allow us to debate the provisions of the Bill relating to the release and recall of prisoners. Amendments Nos. 5, 7 and 8, amending Clause 28, have the effect that, where recalled determinate-sentence prisoners have been assessed by the Secretary of State as safe to re-release, there would be a requirement for their cases to be referred to the Crown Court so that the court could review that decision.
Our main concern at this proposal is that it would place a substantial added burden on the Courts Service. To give some indication of the scale of this burden, in 2007-08 the Parole Board conducted over 14,000 recall reviews. We are also of the opinion that the process for dealing with such referrals would be slow and bureaucratic. Prior to 1999, all recalls in respect of prisoners serving less than four years had to be pursued through the courts. It was a more complex process which was rarely used, but it was one of the reasons why we extended executive recall provisions in the first place. We are not convinced that the proposal would enhance public protection in any significant way.
I remind the House that prisoners serving sentences for sexual or violent offences are automatically precluded from being given a fixed-term or 28-day recall. Those serving sentences for offences other than sex or violence can be given a fixed-term recall only if they are assessed as not presenting a risk of serious harm.
I also remind the House that all recalled prisoners have a right to have the recall decision reviewed by the independent Parole Board, thus providing offenders with a means of redress. Our recall provisions are designed, frankly, to reduce the burden on the Parole Board and on the Prison Service and will assist in achieving our objective to focus prison and the Parole Boards resources on the most dangerous offenders. We have carefully considered the noble Lords amendments but I am afraid we cannot accept them.
Amendment No. 10 seeks to amend Clause 30 in respect of the recall of life and indeterminate-sentence prisoners. I can assure the House that we recognise that recalling a life-sentence prisoner has potentially serious consequences. It could result in the offender spending the rest of his or her life in custody. That is why such decisions are not taken lightly and why all such decisions are subject to review by the Parole Board. Amendment No. 10 requires all recalls of life or indeterminate-sentence prisoners to have the approval of a judge.
We fear that this amendment would build a potential source of delay in the recall process, during which further serious crime could, unfortunately, be committed. The purpose of recall action is to enable the Secretary of State to take swift and preventive action in removing potentially dangerous offenders from the community. We think it is a crucial means of public protection. The current provisions for the recall of a life-sentence prisonerthis is an important
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The clear inference of the statute as it now stands is that in the majority of cases a lifer recall will be pursued through the Section 32(1) routethe Parole Board routeand that the Secretary of State will recall a lifer without prior consultation with the Parole Board only where such consultation is not possible in an individual case.
The House will know that for life-sentence prisoners released into the community on life licence, the threshold for recall is high. An increased risk of reoffending by itself is not sufficient to warrant recalling them to prison. The Secretary of State must be satisfied that the prisoner presents an unacceptable risk to life and limb. To warrant a life or indeterminate sentence it follows that a prisoner will have been convicted of the most serious sexual or violent offences. When their conduct has deteriorated to such a degree that they are assessed as presenting an unacceptable risk to life or limb, it is invariably in the interests of public protection that the recall process facilitates their swift removal from the community.
In practice therefore, nearly all recalls are effected administratively as we speak. We accept that there is no limit on the number of cases that may be decided under the public expediency recall procedurethat is, Section 32(2), which gives the Secretary of State his powers. However, the spirit of the legislation leans towards the primary mechanism for deciding to recall a lifer through a Parole Board recommendation. But in the period from October 2002 to March 2007 more than 80 per cent of decisions to recall lifers were made without a Parole Board recommendation. I can reassure the House that those decisions have been entirely correct in law on the basis that it was expedient in the public interest for the Secretary of State to exercise his power of executive recall without consulting the Parole Board.
Nevertheless, we are concerned to ensure that the statutory framework reflects current operational practice, and that the operational practice could not be seen as undermining Parliaments intention. For that reason, Clause 30 places our current operational practice on a firm statutory footing. We also recognise that it is critical that there are strong and effective safeguards in place to ensure that the decision taken by the executive is open to challenge by the offender, and even if not challenged, is open to robust scrutiny by an independent body. That is what the review by the Parole Board achieves.
The Parole Board will invariably have an oral hearing to consider the representations of life-sentence prisoners. Such hearings are normally chaired by a judicial member. The prisoner is entitled to be present, legally represented, and to call witnesses. The board has the power to direct the prisoners immediate re-release if it is satisfied
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I can be shorter and more helpful to the noble Lord, Lord Kingsland, on his two remaining Amendments Nos. 6 and 9. They would remove the power to amend the period of time an offender must serve before being automatically re-released if given a fixed-term recall or the period other recalled offenders must serve before the Secretary of State must refer their case to the Parole Board.
Having given careful consideration to these amendments, and expressing our gratitude to the noble Lord, Lord Kingsland, in particular, and having listened to other noble Lords in debate, we are prepared to accept those two amendments. We will need to bring forward a consequential amendment when the Bill returns to another place.
Lord Kingsland: My Lords, first, I am most grateful to the Minister for acceding to Amendments Nos. 6 and 9. No doubt there will be certain changes in the drafting by the Government in order to stamp their own inimitable character on these provisions.
Lord Bach: My Lords, the noble Lords point should be called the Hunt rule, as it was clearly expressed by my noble friend: no Government ever accept an amendment, however perfectly drafted, by the Opposition.
Lord Kingsland: My Lords, it will come as no surprise to the Minister to learn that I am disappointed by his reaction to our other amendments. He underlined the importance of speed and effectiveness in the recall process in relation both to those categories in Clause 28 to which I referred and to the life sentence category in Clause 30. I understand that those are important considerations.
On the other hand, individuals are effectively having their liberty removed from them, often for a very long subsequent period. In my submission, the judicial arm of the constitution ought to play a role in that decision. That is what lay at the heart of our amendments. The Minister has been adamant: he will give no ground. I thought very carefully about what I should do at Third Reading. In the end, I have decided not to press these amendments, but I would not want the Minister to think that strong feelings on the part of the Opposition did not lie behind them. I beg leave to withdraw the amendment.
(1) This section applies where there is an appeal under this Part following a reference by the Criminal Cases Review Commission under section 9(1)(a), (5) or (6) of the Criminal Appeal Act 1995 or section 1(1) of the Criminal Cases Review (Insanity) Act 1999.
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