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My second example is of interfering with witnesses. I acknowledge that in another place an exception has been made in the context of domestic violence. I also accept the point made by the noble Lord in Committee when he said that interfering with witnesses is an offence. However, what about this following scenario: a neighbourhood dispute in which a bailed defendant is accused of interfering with witnesses and pleads not guilty? Of course, there will need to be a trial on the matter, but in the mean time the question of bail arises again. Surely the Government cannot be saying that the court cannot take into account a previous conviction of interfering with witnesses. That absolutely undermines everything that they are saying about putting victims at the heart of the criminal justice system. I find it impossible to imagine that they really intend that very real scenario.
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My third example is perhaps the most common and concerns prolific low-level offenders. As the noble Lord will know, magistrates deal with this type of offender all the time. It is the most common type of offender we deal with. Currently, most of these offenders get bail if they plead not guilty. However, if an offender knows that he is going to get bail, he is less likely to plead guilty. On several occasions, I have had a defendant in front of me who has pleaded not guilty. We have then gone through the bail process and, for whatever reason, bail has been refused, at which point he turns around and changes his plea to guilty. In this example, this would of course increase the costs and have precisely the reverse effect to that which the Government are trying to achieve.
By definition, prolific low-level offenders know the system. They know whether they are likely to get bail or not and they will plead accordingly. They will not
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My main objection is not one of principle; it is one of the practical effects of this change in bail policy. The Bail Act 1976 has now been in place for a long time. There have been various amendments down the years, but the Act as a whole is well understood and it works reasonably well.
I have some questions for the noble Lord and I hope he will be able to answer them before I decide whether to bring this matter back at Third Reading. The first question relates to the riots in August, when the importance of magistrates' discretion to withhold bail was shown. Is the noble Lord satisfied that the courts could respond with equal robustness if the proposed changes were enacted? Secondly, it is not clear whether the no real prospect of custody test applies to the offence or the offender. Can previous Bail Act offences be taken into account and used as a reason for withholding bail? Thirdly, if the no real prospect of custody test is satisfied, it would appear that the electronic monitoring of bail conditions such as curfew would not be available as the court has to be satisfied that, without the electronic monitoring requirements, the person would not be granted bail. Is this a correct interpretation? I hope it is not. My fourth and final question is about the very beginning of the remand process. It has been a long-held practice that bail need not be given if there is insufficient information about the defendant, usually concerning their address. Is the noble Lord really saying that a court could lose this discretion in the future? I would find that very surprising.
I have asked four specific questions, although I have been sent many dozen more by the Magistrates' Association. However, in the mean time, I beg to move.
Lord Bach: My Lords, I will comment briefly. My noble friend Lord Ponsonby made a good point. The question is whether the Bail Act 1976, which as he said has worked pretty well in a practical way at various levels-although no one would claim that it is perfect-needs to be changed by what appears at first blush to be a rather superficial alteration.
I am concerned about the matters raised by my noble friend, to which I hope the Minister will respond tonight, and about the prospect of a custody test and the expectation that a defendant will be given if he is granted bail on the basis that he will not receive a custodial sentence, because it may become absolutely apparent at the time of sentence, for whatever reason-and anyone who has been in a court knows that the facts sometimes do not emerge until very late on-that although the defendant's expectation is that he will
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The expectation that someone will have once they have been given bail is that they will not-to use common parlance-go down. In my view that is the wrong way around. Magistrates' courts or Crown Courts should have the discretion that they enjoyed under the Bail Act 1976 to do what they consider to be right in the circumstances, subject to the terms of the Act. Therefore, my view is that the case for change has not been made, and that what is proposed is very superficial.
Lord McNally: I wonder whether one reason why the Magistrates' Association found itself alone on this is that most other penal reform organisations welcomed a proposal that will prevent people being sent to jail. One of the big arguments that we have had about the inexorable rise in our prison population over recent decades is over whether as a society we are too quick to send people to jail. The no real prospect of custody test simply asks, "If you are not going to imprison a defendant if he is convicted, why should you be able to do so before he has been tried?".
The noble Lord, Lord Ponsonby, tabled amendments that would remove the no real prospect of custody test from some, although not all, of the places in Schedule 11 where it appears. Amendment 152JA would remove the amendment to Section 7 of the Bail Act, which applies to the test to bailed defendants who have been arrested for absconding or breaking their bail conditions. Amendment 152JD would remove the amendment that applies the test to defendants who have committed offences that merit summary imprisonment. However, for some reason the paragraph in Schedule 11 that introduces the no real prospect test for indictable offences is left undisturbed. Amendment 152DA removes the definition of custodial sentences that is relevant to the no real prospect test, but Amendment 152JB appears to remove a consequential amendment that is not directly related to the test.
The noble Lord spoke of the risks to the safety of the public, but how much of a risk is a defendant for whom it can be said that there is no real prospect of custody? We also heard about intimidation. However, as we mentioned, intimidating witnesses is an offence in its own right that is not only imprisonable but likely to result in a custodial sentence. A defendant who is not facing custody for their original offence would be foolish to put themselves at risk of receiving a far more serious sentence by trying to interfere with a witness.
We recognise that special considerations may apply where the circumstances of the offence suggest that there may be a risk of domestic violence. That is why we have included an exception designed to protect those who might be vulnerable in this way. This exception in new paragraph 15 of Schedule 11 would in fact be removed by Amendment 152JC. I do not understand why.
The noble Lord asked me a number of specific questions about the August riots, curfews and the need for sufficient information to be given. It would be fun for me to try to reel off answers from the Dispatch Box, but it would be better, and certainly safer for me,
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I am not sure that the Magistrates' Association is on the right path here. We think this is a sensible proposal for keeping people out of prison when it is not strictly necessary for them to be there. I will try to give the noble Lord answers to his questions, but in the mean time I ask him to withdraw his amendments.
Lord Ponsonby of Shulbrede: I thank the Minister for that response. I make the point that the Magistrates' Association and every magistrate I have ever sat with do not want to put people in custody, and the whole purpose of my speech was to point out inconsistencies and a lack of clarity in these proposed changes. Nevertheless, I thank the Minister for offering to respond to my specific questions, and I beg leave to withdraw my amendment.
152H: Schedule 11, page 206, line 36, after "1969" insert "or to prison under that section as modified by section 98 of the Crime and Disorder Act 1998 or under section 27 of the Criminal Justice Act 1948"
Amendments 152E to 152J agreed.
Amendments 152JA to 152JD not moved.
Clause 88 : Requirements for electronic monitoring
152K: Clause 88, page 67, line 44, leave out sub-paragraphs (i) to (iii) and insert "on bail or subject to a custodial remand."
152N: Clause 88, page 68, line 17, at end insert ", or
(b) in relation to an offence of which a child has been accused or convicted outside England and Wales, an offence equivalent to an offence that, in England and Wales, is punishable in the case of an adult with imprisonment;"
152P: Clause 88, page 68, line 24, leave out subsection (9) and insert-
"(9) References in this Chapter to a child being subject to a custodial remand are to the child being-
(a) remanded to local authority accommodation or youth detention accommodation, or
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(b) subject to a form of custodial detention in a country or territory outside England and Wales while awaiting trial or sentence in that country or territory or during a trial in that country or territory.
(10) The reference in subsection (9) to a child being remanded to local authority accommodation or youth detention accommodation includes-
(a) a child being remanded to local authority accommodation under section 23 of the Children and Young Persons Act 1969, and
(b) a child being remanded to prison under that section as modified by section 98 of the Crime and Disorder Act 1998 or under section 27 of the Criminal Justice Act 1948."
Amendments 152K to 152P agreed.
Clause 89 : Requirements for electronic monitoring: extradition cases
Amendments 152Q and 152R agreed.
Clause 90 : Further provisions about electronic monitoring
Clause 93 : Second set of conditions for a remand to youth detention accommodation
152T: Clause 93, page 71, line 44, leave out from "while" to ", and" in line 45 and insert "subject to a custodial remand"
152U: Clause 93, page 72, line 10, leave out paragraphs (a) to (c) and insert "on bail or subject to a custodial remand."
152V: Clause 93, page 72, line 37, leave out "References in this section" and insert "The reference in subsection (5)(b)"
152X: Clause 93, page 72, line 40, at end insert ", and
(b) a child being remanded to prison under that section as modified by section 98 of the Crime and Disorder Act 1998 or under section 27 of the Criminal Justice Act 1948."
Amendments 152T to 152X agreed.
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Clause 94 : First set of conditions for a remand to youth detention accommodation: extradition cases
Clause 95 : Second set of conditions for a remand to youth detention accommodation: extradition cases
Schedule 12 : Remands of children otherwise than on bail: minor and consequential amendments
152YB: Schedule 12, page 212, line 26, leave out "the United Kingdom" and insert "England and Wales"
152YC: Schedule 12, page 213, line 26, leave out from "subsection" to end of line and insert "(3)(b), for "to local authority accommodation" substitute "subject to a custodial remand"."
152YD: Schedule 12, page 213, leave out lines 28 to 38 and insert-
"(11) The references in subsection (3)(b) to an imprisonable offence include a reference to an offence-
(a) of which the child or young person has been convicted outside England and Wales, and
(b) which is equivalent to an offence that is punishable with imprisonment in England and Wales.
(12) The reference in subsection (3)(b) to a child or young person being subject to a custodial remand is to the child or young person being-
(a) remanded to local authority accommodation or youth detention accommodation under section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012,
(b) remanded to local authority accommodation under section 23 of the Children and Young Persons Act 1969 or to prison under that section as modified by section 98 of the Crime and Disorder Act 1998 or under section 27 of the Criminal Justice Act 1948, or
(c) subject to a form of custodial detention in a country or territory outside England and Wales while awaiting trial or sentence in that country or territory or during a trial in that country or territory."
Amendments 152YB to 152YD agreed.
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Clause 101 : Interpretation of Chapter
Amendments 152YE to 152YG agreed.
Schedule 13 : Crediting of time in custody
152YH: Schedule 13, page 218, leave out lines 10 and 11 and insert-
"( ) Section 246 (crediting of time in service custody: terms of imprisonment and detention) is amended as follows.
152YJ: Schedule 13, page 218, line 25, at end insert-
(a) omit "and" at the end of paragraph (a), and
(b) after paragraph (b) insert ", and
"(c) a determinate sentence of detention in a young offender institution,"."
152YK: Schedule 13, page 219, line 5, leave out from "rules)" to end of line 7 and insert "in paragraph (g) omit "or 246"."
Amendments 152YH to 152YK agreed.
Schedule 15 : Application of sections 102 to 113 and transitional and transitory provision
152YL: Schedule 15, page 223, line 10, at end insert-
"( ) Part 1 of Schedule 13 and section 104(13) so far as it relates to that Part (but this is subject to sub-paragraph (3))."
152YM: Schedule 15, page 223, line 15, at end insert "or section 246(2) of the Armed Forces Act 2006"
152YN: Schedule 15, page 223, line 17, leave out "section 240ZA of the 2003 Act" and insert "the new provisions"
152YQ: Schedule 15, page 223, line 20, at end insert-
"( ) In sub-paragraph (3) "the new provisions" means-
(a) where the direction was given under section 240(3) of the 2003 Act, section 240ZA of that Act;
(b) where the direction was given under section 246(2) of the Armed Forces Act 2006, section 246 of that Act as amended by Part 1 of Schedule 13."
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152YR: Schedule 15, page 223, line 35, leave out "commencement date" and insert "day on which this Act is passed"
Amendments 152YKA to 152YR agreed.
153: Before Clause 116, insert the following new Clause-
"Duty to release certain prisoners serving a whole life sentence
In Chapter 2 of Part 1 of the Crime (Sentences) Act 1997 after section 28 insert-
"28A Duty to release certain prisoners serving a whole life sentence
(1) In the case of a life prisoner who has been made subject to a whole life order, and has served 30 years of his sentence, it shall be the duty of the Secretary of State, after consulting the Lord Chief Justice and the trial judge if available, to refer the case to the Parole Board.
(2) If the Parole Board is satisfied-
(a) that it is no longer necessary for the protection of the public that the prisoner should be confined, and
(b) that in all the circumstances the release of the prisoner on licence would be in the interests of justice,
the Parole Board may direct his release under this section.
(3) Where the Parole Board has directed a prisoner's release under this section, it shall be the duty of the Secretary of State to release him on licence.""
Lord Lloyd of Berwick: My Lords, I start by seeking to degroup Amendment 153 from the other two amendments in the group.
Amendment 153 concerns the 41 prisoners who are currently serving whole life sentences in England and Wales. Before the Criminal Justice Act 2003, these prisoners would have had their sentences reviewed by the Home Secretary after 25 years. If they had made exceptional progress and there was no other reason for keeping them in prison, the Home Secretary would consider them for release on licence. There was never any question of automatic release. Each case was considered on its own merits. Some were released on licence; some were not.
What I have just described was the settled practice of successive Home Secretaries for many years. It was a humane practice since it gave whole life prisoners the same hope of a review as other life prisoners. When the 2003 Act was going through Parliament this settled practice was somehow overlooked. There is no evidence that it was overlooked on purpose. It was not a deliberate omission. The purpose of this amendment is to restore the position to what it was before 2003, except that the review would be carried out not by the Home Secretary but by the Parole Board. The reason for that is that the Home Secretary no longer has any function in relation to sentencing except the power to release a prisoner on compassionate grounds, a power which has never been exercised.
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I can see no good reason why the noble Lord should not accept this anodyne amendment. Anodyne it is. It cannot possibly do any harm. The only purpose of it is to give back to whole life prisoners the expectation of a review which they enjoyed before 2003. The only
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There is one other point. On 17 January, the fourth section of the European Court of Human Rights gave judgment in a case called Vinter and Others v the United Kingdom. The question was whether the imposition of a whole life sentence was a breach of Article 3 of the convention. The court decided by the narrowest of majorities that it was not. In Committee the noble Lord naturally relied on that momentary triumph in support of his argument. I say momentary triumph because that decision is now subject to appeal to the full court.
If the Government accept this amendment they will save the considerable cost of defending that appeal. For the issue in that appeal will then have become academic. If they do not accept this amendment and lose the appeal, as they well may, they will be obliged to bring in primary legislation to give effect to that decision and thus bring us into line with every other European country except, for some reason, Holland. On any view it would surely make sense for the Government to accept the amendment now and to save the expense. I beg to move.
Lord Morris of Aberavon: My Lords, I support the noble and learned Lord, Lord Lloyd. All he wants to do in the amendment, as I understand it, is to go back to the pre-2003 position. Because of judgments of the European Court, the Home Secretary is not able to take such a decision, but successive Home Secretaries have not been willing to give this kind of decision to the Parole Board, as envisaged in the noble and learned Lord's amendment.
I believe that the present position is untenable. The noble and learned Lord referred to the case of Vinter, in which it was decided-by a majority of four to three, a tiny majority-that this was not an inhumane process. I do not always have the greatest confidence in this court, which is not a very happy court to be in. When I appeared before it as an attorney, you had half an hour. Your opponent had half an hour in which to reply. You might have had a few minutes to say a few more words but the court would file out having heard the argument and not have any exchange whatever with counsel or carry the matter any further. A few months later you would have a decision.
As I understand it, this matter will undoubtedly go to an appeal. It will be considered by a court of five and the Government may lose. In all probability, it may then go, if leave is given, to the Grand Chamber and the Government may lose. With these tiny votes and these tiny majorities, one cannot be sure what will happen in this court. The Government will be in a very difficult position and will undoubtedly have to take action.
Without any further words, I believe that the present position is not compassionate, is not human and is not in the interests of justice, whatever that may mean.
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Lord Pannick: My Lords, I have added my name to this amendment so persuasively moved by the noble and learned Lord, Lord Lloyd of Berwick. We are here concerned with the most awful cases of murder but, as your Lordships have heard, prior to 2003 such cases were reviewed after 25 years. There is no suggestion that that gave rise to any difficulty or any problems at all. The argument for the amendment is very simple. It is simply wrong in principle for anyone, however wicked, to be told that they must spend the whole of their life in prison with no possibility of review, however long is going to elapse and whatever progress they may make.
It is unlikely that a murderer who has committed such grave crimes that he has received a whole-life tariff will ever make the progress that would make release appropriate, but the point surely is that basic humanity demands that the offender has a chance, however remote, to prove to others and to himself that he can live a worthwhile life. It is surely also very unfortunate from the point of view of prison administration that a group of highly dangerous persons -that is, dangerous when they are sentenced-should be told that however well they behave they will never be released. Surely that makes our prisons much more dangerous places.
I have no confidence that the Minister will tell the House this evening that he will accept this amendment. I very much hope that he will but I have no confidence that he will in the light of what he said in Committee. However, I urge him to ask himself whether our penal regime should really be based on a principle of locking the prison door and throwing away the key.
Lord Judd: My Lords, it takes a good deal of cheek for me, as a lay man, to come in after three speeches like that. All I can say is that in the society in which I want to live, no matter how heinous or terrible the crime that has been committed-clearly, these crimes are about terrible things that have happened-that society should be based on the principle of hope of redemption and hope that even the worst offender can become a better and decent person, otherwise it has a very negative culture that undermines a lot more than simply the issue of the prisoner himself. It is about the values and self-confidence of society as a whole. It is high time that this situation was put right. I am very privileged as a lay man to support these well qualified views that we have just heard. I hope that the Minister will take them seriously.
Lord Bach: My Lords, I can be very brief because the speeches that have been made set out the case very well indeed. Proper caution has been taken in the way in which the amendment has been worded. We all know that the people whom we are talking about have committed the most terrible offences and in many cases-in practically every case, I suggest-it may well be, given the caution included in the wording of the
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Surely we have trust and faith in the Parole Board. The Parole Board has to be satisfied that,
- "it is no longer necessary for the protection of the public that the prisoner should be confined, and ... that in all the circumstances the release of the prisoner on licence would be in the interests of justice".
My argument is that the Parole Board has to make hard findings in any case, particularly in cases of this kind. Even if the Parole Board is satisfied on these matters, the amendment says only that it "may direct his release under this section".
The amendment is extremely cautious, but it is humane, in the way that has been described, for people who sometimes may seem not to deserve the protection of a humane state. However, we live in one, and surely the point of the penal policy is for it to be humane when it can be.
I listened carefully to what the Minister said in response to this matter in Committee and it seemed to me then that the Government's real case is-I put it crudely-that the Daily Mail would not like it. If that is really the level of the argument that the Minister is going to put again today, it is quite unsatisfactory for a matter of principle of this kind. I hope that, if the Minister opposes the amendment, he will find a better argument than that.
Lord McNally: My Lords, the better argument is that if I accepted the amendment, the Labour Party would, as it has done on most law and order issues over the past 20 years, try to outbid the hard right to the right. If the noble Lord is announcing a new Labour Party policy on this issue, I shall give way. No, he is not, so let us not go too far down that road.
I acknowledge that this is a cautious amendment. We have heard from some very distinguished and learned Members of the House and I shall not try to match them in legal skills. However, I have been around politics for quite a few years and, in many ways, one has to make political judgments. If we had been debating this in the 1960s along with Sydney Silverman or in the 1970s with Roy Jenkins, we might have found a political atmosphere in which to discuss these issues. Sadly, things have moved on since then and if you are a legal reformer like me you try to make progress where you can.
Part 3 of the Bill carries us forward significantly in two areas of legal reform: reform of IPPs, which we will be discussing later, and the Rehabilitation of Offenders Act. I believe that those are worthwhile measures. I do not think that we are in a position at the moment to move as far as this amendment suggests, cautious though that may be in rational terms. Just as there are
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9.15 pm
When we are discussing a whole-life tariff, we are discussing something that is judicially imposed, bearing in mind all the facts of a particular case. The Court of Appeal has said that there is no reason in principle why a sufficiently heinous crime should not deserve lifelong imprisonment for the purpose of pure punishment. The seriousness of the offence does not diminish over time and the tariff reflects that seriousness. That is an argument that the Government find extremely persuasive.
In Committee, the noble Lord, Lord Ramsbotham, gave the example of the serial killer Dennis Nilsen, who is serving a whole-life sentence but whose activities in prison have apparently achieved some great benefit to the community. Such activity is to be commended for the good that it does to others and it shows that an offender can engage in purposeful activity even where there may be no prospect of release. Whole-life tariff prisoners have the same opportunity as other prisoners to engage in interventions, education and work, depending on risk assessment. There is no doubt that an offender can do good while in prison, but that does not necessarily mean that his risk is diminished.
I was a little bit interested in the opinions about the decisions of the European Court of Human Rights. I am not sure whether, when the noble and learned Lord, Lord Lloyd, was a Law Lord, the narrowness of the majority affected the validity of the verdicts that came out. We will see whether triumphs are momentary or not, but the fact is that the European court recently found in our favour, and noble Lords will be aware that our domestic courts have found that our law and practice are consistent with the convention and the court's case law. They have found that judges can legitimately find that lifelong imprisonment is a necessary punishment.
When one talks about people, however wicked, and public confidence, I should say that I am old enough to remember the battle to get the Sydney Silverman Bill through. One of the tipping points in that battle was the promise that life would mean life. We have no obligation to take any action at this stage and we do not intend to do so. There is already a mechanism for a whole-life prisoner to be released on compassionate grounds where his or her continued detention can no longer be justified and becomes inhuman or degrading.
I know that the noble and learned Lord has come back to this issue on a number of occasions and what I am saying may sound hard in his terms. He is using his legal judgment while I am using my political judgment. I think that I have things in this Bill of which I can be proud. I do not believe that, with a coalition Government in the present political atmosphere, the balance in Parliament, the real attitude of the Labour Party and public opinion, pushing this any further is realistic. I urge him to withdraw the amendment.
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Lord Lloyd of Berwick: My Lords, I do not find that response in any way satisfactory. What single reason has the noble Lord for supposing that the public would not accept this amendment, just as they accepted the position before 2003? There was no problem then, so why should there be a problem now, unless it is a problem that has been specifically created by two political parties, each of which is trying to be tougher on crime than the other? That is the political judgment that the noble Lord has made and it has nothing to do with the justice of this amendment or restoring to these people the expectation that they had before 2003. I have no hope of persuading the noble Lord or his party, but I intend to test the opinion of the House, because this is something that should have been accepted by both political parties.
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Andrews, B.
Bach, L.
Bassam of Brighton, L.
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Bradley, L.
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Craigavon, V.
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Faulkner of Worcester, L.
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Stoneham of Droxford, L.
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Clause 116 : Abolition of certain sentences for dangerous offenders
Clause 117 : Life sentence for second listed offence
153C: Clause 117, page 94, line 4, leave out from beginning to "a" in line 6 and insert "The sentence condition is that, but for this section, the court would, in compliance with sections 152(2) and 153(2), impose"
Amendments 153B to 153D agreed.
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Lord Lloyd of Berwick: As the House will remember, Clause 117 provides that if a person has been convicted of a listed offence for which he has been sentenced to 10 years or more and then commits a further offence for which he might expect at least a 10-year sentence in prison, then he "must" be sentenced to life imprisonment unless it would be unjust to do so.
I described this clause in Committee as being pointless and indeed it is, but I now suggest that it is worse than pointless. In Committee, the Minister described the clause as introducing a new mandatory life sentence, and he placed particular emphasis on "mandatory" to show, no doubt, that the Government in this respect are being tough on crime. But a mandatory sentence is one that the court is obliged to pass, like the mandatory sentence of life imprisonment for murder. This clause is quite different from that.
Despite the use of "must", the clause recognises that the judge will in fact pass the sentence which, in the particular circumstances, he believes to be the just sentence. That is exactly what judges always do when sentencing. Why then do the Government persist in calling it a mandatory sentence? It cannot surely be in order to create some sort of presumption that a life sentence should be passed. How would the judge begin to know what weight to give to such a presumption? Calling it a mandatory life sentence and the use of "must" in the light of the judge's ability to pass the sentence he believes to be just is simply a contradiction in terms. To create contradictions in terms in all legislation is a mistake, particularly in legislation of a criminal kind which has to be interpreted by the courts. What the clause could have said was that the court "may" pass a life sentence in these circumstances. That would at least serve some purpose because it would cover those rare cases where the second offence does not carry with it a life sentence as its maximum. As it is, the clause is not only pointless for the reasons I have gone into but it is also ambiguous.
I have one other point. Do we want to create more life sentences? I look round to see if the noble Baroness, Lady Stern, is here and I do not thinks she is, so I will make the points which I know she would have made. She quoted what are on any view some very surprising figures that we have in England and Wales 7,663 persons serving life sentences. The figures, which have been provided by the Council of Europe, show that, whereas we have 12 lifers for 100,000 members of the population, for France the proportion is 0.85 per cent, for Germany it is 2.4 per cent, for the Netherlands it is 0.14 per cent, and for Sweden it is just over 1 per cent. The conclusion from these figures is inevitable. We have far too many prisoners serving life sentences when a long determinate sentence would do just as well. As for deterrence, it is very fanciful to suppose that a prisoner having served 10 years already would be deterred by the prospect of a life sentence rather than a long deterrent sentence and decide thereafter to go straight.
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As for Amendment 157, we have a new Clause 134 which creates an offence of threatening with a knife. It too carries a mandatory sentence and, as such, suffers from all the defects which I have already mentioned in the earlier debate. It is even more pointless for the reason that we already have an offence of carrying a knife in a public place under the Criminal Justice Act 1988. It carries a maximum sentence of four years. In 2003 the Court of Appeal issued guidelines in which it said that if the knife was used to threaten, then the sentence should be towards the upper end of the scale. What, then, can be the purpose of now creating a new offence of threatening with a knife, carrying the same maximum sentence of four years? Clause 134 is exactly covered by the existing legislation. Its only purpose I can see is, as I have said before, to give the impression that the Government are doing something about knife crime. If they think that, then they deceive themselves. The only way to do anything about knife crime, as I mentioned in Committee, is to do what has been done in Glasgow and that is to get in among the gangs who use these knives. There, knife crime has been reduced by an astonishing 82 per cent. That is the way to reduce knife crime, not cluttering up the statute book with unnecessary provisions such as this. I beg to move.
Lord McNally: My Lords, a concern expressed by some noble Lords in Committee seemed to be that the new mandatory life sentence would be pointless-a word that the noble and learned Lord used several times-because courts will not have to apply it if it would be unjust to do so. It is right to say that the court will retain a discretion not to impose the new mandatory life sentence when the particular circumstances of the offence or the offender would make it unjust to do so. But that is very far indeed from meaning that the sentence is pointless. Save for murder, all mandatory sentence requirements on the statute book contain an exception of this kind. It is done so that mandatory sentence requirements will be compatible with human rights, and to prevent arbitrary sentencing, which cannot take any account of specific and individual circumstances. It is clearly not a permission or excuse for the court to do away with the mandatory sentence requirement. We expect that in the majority of cases the exception will not be engaged at all.
Last summer we made a commitment to introduce a tougher determinate sentencing regime to replace IPPs. A key element of that regime is mandatory life sentences for the most serious repeat offenders. The mandatory sentence requirement in Clause 117 will ensure that the worst repeat sexual and violent offenders receive a life sentence.
Amendment 157 would remove Clause 134, a new knife offence, from the Bill. The noble and learned Lord, Lord Lloyd, argued in Committee that the two new offences in Clause 134 are adequately covered by existing legislation and that, therefore, there is no reason for creating them. It is true that unlawful possession of a knife or offensive weapon is already a serious criminal offence which carries a maximum custodial sentence of four years. The intention of Clause 134 is to strengthen this existing legislative framework by targeting behaviour that amounts to more than simple possession but does not go so far as
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I know that the noble and learned Lord is particularly concerned about the minimum sentence for 16 and 17 year-olds contained in the new offences. I understand his concern, but in the other place my right honourable friend the Lord Chancellor made it clear at Third Reading that the Government had listened carefully to the arguments made in support of extending a minimum custodial sentence to all those under 18. The Government had then decided, on balance, that it would be appropriate to extend the minimum sentence to the narrower group of 16 and 17 year-olds who commit these offences. The Government have not made the decision to create these offences lightly, but consider it appropriate to have minimum sentences set out in legislation when a particular offence demands a firm and unequivocal response.
The Government cannot accept this amendment. To do so would undermine the strong message sent by this clause. We need this to complement the much wider range of initiatives we have in place to address problems posed by people who unlawfully carry or use knives in our communities. We believe that, in respect of 16 and 17 year-olds, Clause 134 strikes the right balance. I urge the noble and learned Lord to withdraw his amendment, and that this clause and Clause 134 should remain in the Bill.
9.45 pm
Lord Lloyd of Berwick: My Lords, the noble Lord has not explained how a life sentence in the first amendment could in reality act as any greater deterrent than a second long determinate sentence. Nor has he dealt or attempted to deal with the astonishing figures that I mentioned, which show that we seem to have a thirst for creating life sentences that is entirely unique to the United Kingdom. It is not seen anywhere else in Europe. Nor, coming to the second amendment, has he explained why it is necessary to have another offence covering exactly the same ground as the existing offence. Of course it may be limited to handling a knife, but it is not confined to handling and clearly covers threatening, which is now given a new offence with exactly the same maximum sentence. However, I see that the Government cannot be persuaded, and therefore I must beg leave to withdraw the amendment.
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Schedule 18 : Life sentence for second listed offence etc: new Schedule 15B to Criminal Justice Act 2003
154B: Schedule 18, page 245, leave out lines 20 to 31 and insert-
(a) was abolished (with or without savings) before the coming into force of this Schedule, and
(b) would, if committed on the relevant day, have constituted an offence specified in Part 1 of this Schedule.
(2) "Relevant day", in relation to an offence, means-
(a) for the purposes of this paragraph as it applies for the purposes of section 246A(2), the day on which the offender was convicted of that offence, and
(b) for the purposes of this paragraph as it applies for the purposes of sections 224A(4) and 226A(2), the day on which the offender was convicted of the offence referred to in section 224A(1)(a) or 226A(1)(a) (as appropriate)."
Amendments 154A to 154D agreed.
Schedule 19 : Life sentence for second listed offence: consequential and transitory provision
154F: Schedule 19, page 247, line 30, at end insert-
"13A In section 156 (pre-sentence reports and other requirements) after subsection (8) insert-
"(9) References in subsections (1) and (3) to a court forming the opinions mentioned in sections 152(2) and 153(2) include a court forming those opinions for the purposes of section 224A(3).""
154G: Schedule 19, page 248, line 2, at end insert-
"15A In section 224 (meaning of "specified offence" etc) in subsection (2)(b) for "225" substitute "224A"."
154L: Schedule 19, page 249, line 24, at end insert-
"(3) In section 305(4) (interpretation of Part 12) in paragraph (bb) (inserted by paragraph 21 of this Schedule) after "imprisonment for life" insert "or, if the person is aged at least 18 but under 21, custody for life"."
Amendments 154E to 154L agreed.
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Clause 118 : New extended sentences
154M: Clause 118, page 96, line 11, at end insert-
"(10) In subsections (1)(a) and (8), references to a specified offence, a specified violent offence and a specified sexual offence include an offence that-
(a) was abolished before 4 April 2005, and
(b) would have constituted such an offence if committed on the day on which the offender was convicted of the offence.
(11) Where the offence mentioned in subsection (1)(a) was committed before 4 April 2005-
(a) subsection (1)(c) has effect as if the words "by section 224A or 225(2)" were omitted, and
(b) subsection (6) has effect as if the words "in compliance with section 153(2)" were omitted."
154MA: Clause 118, page 96, line 11, at end insert-
"(10) The court must specify whether the requisite custodial period shall be one-half or two-thirds of the appropriate custodial term determined by the court."
Lord Dholakia: My Lords, Clauses 118 and 119 deal with the new extended sentence and release on licence matters. I do not question the Government's intention in what they are trying to achieve, but I do question the discrepancy that these clauses would create. My amendments would give the courts discretion over the release date of offenders given extended sentences. In appropriate cases, courts would be able to retain the current position whereby prisoners serving extended sentences are released after half the sentence. In other cases, where the court considered it necessary, it could specify that the offender will not be released until he or she has served two-thirds of the sentence.
At present, prisoners serving determinate sentences are released on licence after serving half the sentence in custody. This also currently applies to offenders serving extended sentences. Up to now, the point of an extended sentence has not been to increase the period which offenders spend in custody. Extended sentences are currently intended to make sure that when offenders who pose a risk to the public are released, they are subject to a longer period than usual of post-release supervision on licence. This means that they are subject to restrictive conditions and controls at the same time as receiving constructive rehabilitative help from the probation service. If offenders breach the conditions of their licence, they can be recalled to prison. This is a very useful provision which means that society maintains control over these offenders' behaviour for a long period. However, the Bill would increase the time which an offender given an extended sentence spends in prison by stipulating that all extended sentence prisoners will not be released until the two-thirds point of their sentence.
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When we debated this matter in Committee on 9 February, my noble friend Lord McNally explained the Government's view that this would be appropriate for some prisoners who would now be given IPP sentences. However, the change in the Bill will not apply only to offenders who would now receive an IPP sentence. It will also apply to people who would currently receive an extended sentence. In future, these offenders will also have to serve longer in custody if this provision in the Bill remains unchanged. The Government have produced no explanation to demonstrate why it is necessary to change the rules for prisoners of the type who would now receive an extended sentence.
As the Bill stands, a court wishing to impose an extended period of post-release supervision will be able to do so in future only if it passes a sentence which also increases the length of time spent in custody before release to two-thirds of the sentence. If a judge does not want to increase the time that the offender spends in prison but simply wants to make sure that he or she has an extended period of supervision on release, why should he not be able to order this as he can under the current provisions for extended sentences?
When I moved a similar amendment in Committee on 9 February, my noble friend Lord McNally said:
"I listened to my noble friend's idea about discretion ... I will ponder this one between now and Report".- [Official Report, 9/2/12; col. 467.]
That is the stage we have reached. These amendments give my noble friend the opportunity to let us know the result of his thinking on my suggestion. I beg to move.
Lord McNally: My Lords, I was teased earlier in the day about my Labour and trade union past. One quote that sticks in my mind is from the great TUC general secretary George Woodcock, who once said that good trade unionism is a serious of squalid compromises. Sometimes law reform or criminal justice reform is a series of compromises. The noble Lord, Lord Bach, shakes his head. Of course it is. We have to carry Parliament with us, we have to carry the various parts of the coalition Government with us, and we have to carry public opinion with us. Reflecting on my noble friend's amendment, when we announced our decision to reform the Rehabilitation of Offenders Act, one of the campaigning groups rang up and said, "But you have not gone as far as Labour promised in their 2002 White Paper". That is true, but we were reforming the Act for the first time in 37 years. Labour had talked big and done nothing.
A key element of our IPP replacement regime is the new extended determinate sentence for dangerous offenders. On this sentence, the offender will always serve at least two-thirds of the custodial term in prison. In the most serious cases early release will be at Parole Board discretion. This means that offenders stay inside until the end of that term. My noble friend has proposed that the court should have a discretion as to whether the minimum time in prison offenders on the new extended sentence should serve is one-half or two-thirds of the custodial term. He has explained that one of his key concerns is that there should be an appropriately long licence for the offender without the
20 Mar 2012 : Column 852
The new extended licence consists of a custodial term set by the court, during which-or at the end of which-release will occur. This must then be followed by an extended period of licence, which is also set by the court, and may be up to five years in length for a violent offence and eight years in length for a sexual offence. The courts will base the custodial term on seriousness and factors relevant to that. The extended licence period will address risk. As the proposals stand, the court should be able to impose a sentence that will require a suitably long period of licence regardless of when during the custodial term the offender is released. Therefore, I do not think there is a problem with licence, but if there were I am not sure that this amendment would be the solution. It would be entirely possible for a serious offender to remain in prison until the end of the custodial term regardless of the point at which he becomes eligible for parole.
I also note that this would be a new decision for judges, and it is not clear on what basis they would make it. Seriousness and risk management are already addressed by the decisions the court will already make in relation to the sentence. Asking them to decide additionally between different sentence formats would seem to make this a very complex sentencing decision.
Finally, as I have said before, in June last year the Government committed to introducing a tougher determinate sentencing regime to replace IPPs. A key part of that tougher regime is that those on public protection sentences, now that they are no longer liable to receive IPP sentences, will spend more of their determinate sentence in prison. We think this is needed to enhance public protection and deliver public confidence. It will provide more time for offenders and the National Offender Management Service to work towards rehabilitation. I know that my noble friend and his friends in NACRO will continue to campaign on these issues and it is right that they should do so. However, I hope that my noble friend will feel able to withdraw his amendment.
Lord Dholakia: My Lords, I thank the Minister for his explanation. I am delighted with the information he has given. It is always nice to niggle him from time to time so that we can hear some lovely anecdotes. As long as he keeps bashing the Labour Party, I have no reason not to withdraw the amendment.
154N: Clause 118, page 96, line 45, at end insert-
"(8) In subsections (1)(a) and (6), references to a specified offence, a specified violent offence and a specified sexual offence include an offence that-
(a) was abolished before 4 April 2005, and
(b) would have constituted such an offence if committed on the day on which the offender was convicted of the offence.
20 Mar 2012 : Column 853
(9) Where the offence mentioned in subsection (1)(a) was committed before 4 April 2005-
(a) subsection (1) has effect as if paragraph (c) were omitted, and
(b) subsection (4) has effect as if the words "in compliance with section 153(2)" were omitted."
Schedule 20 : New extended sentences: consequential and transitory provision
154Q: Schedule 20, page 250, line 5, leave out paragraph 4 and insert-
"4 (1) Section 35A of the Road Traffic Offenders Act 1988 (extension of disqualification where custodial sentence imposed as well as driving disqualification) is amended as follows.
(a) for "227" substitute "226A",
(b) for "half" substitute "two-thirds of", and
(c) for "227(2C)(a)" substitute "226A(5)(a)".
(a) for "228" substitute "226B",
(b) for "half" substitute "two-thirds of", and
(c) for "228(2B)(a)" substitute "226B(3)(a)".
154R: Schedule 20, page 250, line 19, at end insert-
"Crime (Sentences) Act 1997 (c.43)4A In Schedule 1 to the Crime (Sentences) Act 1997 (transfer of prisoners within the British Islands) in paragraph 9(2)(a) after "244," insert "246A,".
Crime and Disorder Act 1998 (c.37)4B In section 51A of the Crime and Disorder Act 1998 (sending cases to the Crown Court: children and young persons) in subsection (3)(d) for "226(3) or 228(2)" substitute "226B"."
154S: Schedule 20, page 250, line 21, at end insert-
"5A In section 3A (committal for sentence of dangerous adult offenders) in subsection (2) for "225(3) or 227(2)" substitute "226A".
5B In section 3C (committal for sentence of dangerous young offenders) in subsection (2) for "226(3) or 228(2)" substitute "226B"."
154T: Schedule 20, page 250, line 23, at end insert-
"6A (4) Section 82A (determination of tariffs of life prisoners) is amended as follows.
(6) In subsection (7) for the definition of "life sentence" substitute-
20 Mar 2012 : Column 854
""life sentence" means a sentence mentioned in subsection (2) of section 34 of the Crime (Sentences) Act 1997 other than a sentence mentioned in paragraph (d) or (e) of that subsection.""
154U: Schedule 20, page 250, line 40, leave out "after "226" insert ", 226B"" and insert "for "228" substitute "226B""
154V: Schedule 20, page 250, line 41, leave out paragraph 9 and insert-
"9 (1) Section 106A (interaction of detention and training orders with sentences of detention) is amended as follows.
(2) In subsection (1), in paragraph (b) of the definition of "sentence of detention", after "section" insert "226B or".
(a) before "228" insert "226B or", and
(b) after "Board under" insert "subsection (5)(b) of section 246A or (as the case may be)"."
154W: Schedule 20, page 250, line 43, at end insert-
"9A (1) Section 147A (extension of driving disqualification where custodial sentence also imposed) is amended as follows.
(a) for "227" substitute "226A",
(b) for "half" substitute "two-thirds of", and
(c) for "227(2C)(a)" substitute "226A(5)(a)".
(a) for "228" substitute "226B",
(b) for "half" substitute "two-thirds of", and
(c) for "228(2B)(a)" substitute "226B(3)(a)".
154X: Schedule 20, page 251, line 13, leave out "before "227(2)" insert "226A(4), 226B(2)"" and insert "for "227(2) and 228(2)" substitute "226A(4) and 226B(2)""
154Y: Schedule 20, page 251, line 14, leave out paragraph 16 and insert-
"16 (1) Section 156 (pre-sentence reports and other requirements) is amended as follows.
(2) In subsection (3)(a) for "section 227(1)(b) or section 228(1)(b)(i)" substitute "section 226A(1)(b) or section 226B(1)(b)".
(3) After subsection (9) (inserted by paragraph 13A of Schedule 19) insert-
"(10) The reference in subsection (1) to a court forming the opinion mentioned in section 153(2) includes a court forming that opinion for the purposes of section 226A(6) or 226B(4).".
154YA: Schedule 20, page 251, line 15, at end insert-
"16A In the heading of section 225 (life sentence or imprisonment for public protection for serious offences) omit "or imprisonment for public protection".
16B In the heading of section 226 (detention for life or detention for public protection for serious offences by those aged under 18) omit "or detention for public protection".
16C In section 231 (appeals where convictions set aside) in subsection (1)-
(a) in paragraph (a) after "225(3)" insert ", 226A",
(b) in paragraph (b)-
(i) before "227(2A)" insert "226A(2) or", and
(ii) before "227(2B)" insert "226A(3) or", and
(c) in paragraph (c) after "may be)" insert "226A(2) or".
16D Omit section 232 (certificates of convictions for the purposes of sections 225 and 227)."
154YB: Schedule 20, page 251, line 21, at end insert-
"19A In section 330 (orders and rules) in subsection (5)(a) omit-
(a) "227(6),", and
(b) "228(7)".
20 Mar 2012 : Column 855
19B Omit Schedule 15A (offences specified for the purposes of sections 225(3A) and 227(2A))."
154YC: Schedule 20, page 251, line 26, at end insert-
"Counter-Terrorism Act 2008 (c.28)20A In section 45(1)(a) of the Counter-Terrorism Act 2008 (sentences or orders triggering notification requirements under Part 4 of that Act) after sub-paragraph (vi) (but before the "or" at the end of that sub-paragraph) insert-
"(via) detention under section 226B of that Act (extended sentence of detention for certain dangerous offenders aged under 18),".
Coroners and Justice Act 2009 (c.25)20B (1) Section 126 of the Coroners and Justice Act 2009 (determination of tariffs etc) is amended as follows.
(a) omit paragraphs (a) and (b),
(b) in paragraph (c) for "227 of that Act" substitute "226A of the Criminal Justice Act 2003", and
(c) in paragraph (d) for "228" substitute "226B".
(a) omit paragraph (b),
(b) in paragraph (c) for "227(3) of that Act" substitute "226A(6) of the Criminal Justice Act 2003", and
(c) in paragraph (d) for "228(3)" substitute "226B(4)".
(4) In subsection (4) for the words from "has" to the end substitute "means a sentence mentioned in subsection (2) of section 34 of the Crime (Sentences) Act 1997 other than a sentence mentioned in paragraph (d) or (e) of that subsection".
Consequential repeals20C In consequence of amendments made by section 116, 118 or 119 or this Schedule-
(a) in the Criminal Justice Act 2003, omit paragraph 4 of Schedule 18, and
(b) in the Criminal Justice and Immigration Act 2008 omit-
(i) sections 13, 14, 15, 16 and 18(2);
(ii) Schedule 5;
(iii) in Schedule 26, paragraph 76."
Amendments 154Q to 154YD agreed.
Clause 119 : New extended sentences: release on licence etc
Amendments 154YE and 154YF agreed.
154YG: After Clause 119, insert the following new Clause-
"Sections 116, 118 and 119: consequential and transitory provision
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Schedule 20 (abolition of certain sentences for dangerous offenders and new extended sentences: consequential and transitory provision) has effect."
Schedule 21 : Release of new extended sentence prisoners: consequential provision
154YH: Schedule 21, page 252, line 18, leave out paragraph 2 and insert-
"2 (1) Section 237 (meaning of "fixed-term prisoner" etc) is amended as follows.
(2) In subsection (1)(b), before "227" insert "226A, 226B,".
154YJ: Schedule 21, page 252, line 21, leave out "after "Sentencing Act" insert "or section 226B"" and insert "for "228" substitute "226B""
154YK: Schedule 21, page 252, line 24, leave out paragraphs (a) and (b) and insert ", before "227" insert "226A, 226B,"."
154YL: Schedule 21, page 252, line 25, at end insert-
"4A (1) Section 246 (power to release prisoners on licence) is amended as follows.
(2) In subsection (4)(a), after "section" insert "226A,".
(3) In subsection (6), in the definition of "term of imprisonment", before "227" insert "226A, 226B,"."
154YN: Schedule 21, page 252, line 29, leave out paragraph (b) and insert-
"(b) before the second "227" insert "226A, 226B,"."
154YP: Schedule 21, page 252, line 39, at end insert-
"6A In section 258 (early release of fine defaulters and contemnors), in subsection (3A), before "227" insert "226A, 226B,"."
154YQ: Schedule 21, page 253, line 24, leave out "before "228" insert "226B or"" and insert "before "227" insert "226A, 226B,""
154YS: Schedule 21, page 253, line 35, leave out "before "228" insert "226B or"" and insert "before "227" insert "226A, 226B,""
Amendments 154YH to 154YS agreed.
154YT: Before Clause 120, insert the following new Clause-
"Dangerous offenders subject to service law etc
Schedule (Dangerous offenders subject to service law etc) (dangerous offenders subject to service law etc) has effect."
20 Mar 2012 : Column 857
Clause 120 : Power to change test for release on licence of certain prisoners
154YU: Clause 120, page 98, line 43, at end insert-
"( ) The Secretary of State shall-
( ) delegate responsibility for implementing release plans for IPP prisoners, and
( ) make a Statement to both Houses of Parliament setting out to whom they have delegated this responsibility.
( ) The Secretary of State shall, once the work is completed and within one year of enactment, report to both Houses of Parliament when all release plans for IPP prisoners are completed."
Lord Ramsbotham: My Lords, I shall be as brief as I can. Overcrowding, as we all know, is the scourge of imprisonment. With far too many people in prison who should not be there, inadequate resources are unable to be deployed to the people who need them most; that is, the people who present the greatest risk to the public.
Having welcomed the end of the unspeakable indeterminate sentence in this Bill, I was very concerned about those people who are in prison serving indeterminate sentences who do not know their release date. Some have already exceeded their tariff and more exceed their tariff almost every day. That is why I raised the issue in Committee. I was very grateful to the Minister for his letter of 16 February in response, in which he described to me the workings of the Indeterminate Sentence Prisoners Co-ordination Group, which had been set up in 2010 not to manage the cases of individual prisoners but, interestingly enough, to provide strategic oversight-a word for which I was berated by the Minister earlier-and co-ordination of the whole system of management of the whole sentence itself.
The purpose of this group is, apparently, to develop and promote the most effective means of managing indeterminate sentence prisoners and to ensure that resources are effectively directed. To this end, it has developed and co-ordinated strategies about assessment, sentence planning and delivery, access to interventions in the parole process, prison capacity issues and control in the community following release. It has also developed a tool for providing information on the numbers requiring specific interventions and also allocation to local prisons. In other words, there is a strategy; there is a group responsible for overseeing the strategy; and there is a tool for doing what is required. The only thing that is missing is the application of all this to the individuals who need individual plans made; otherwise, they will stay in prison for an indeterminate time caused by the fact that there are not the resources to do anything about getting them out.
In Committee, I proposed that it might be worth changing the burden of proof so that the Prison Service had to prove why someone should not be released rather than the person concerned having to prove that they should be. Therefore, this amendment is very much related to the information that the Minister gave me. Why could not the Indeterminate Sentence Prisoners Co-ordination Group be entrusted with making
20 Mar 2012 : Column 858
10 pm
154YUA: Clause 120, line 9, at end insert-
"( ) The Secretary of State shall report to both Houses of Parliament every six months thereafter-
( ) the number of IPP prisoners remaining in custody after the tariff date in each case has expired,
( ) the arrangements made for such prisoners to complete their courses,
( ) the proportion of such prisoners who have already completed their courses, and
( ) the number of outstanding applications to the Parole Board for release."
Lord Thomas of Gresford: Amendment 154YUA would add the need for reports to the amendment moved by the noble Lord, Lord Ramsbotham. Although I welcome the abolition of IPPs, I am still concerned about those who have served their tariff but have not been released. The best way of dealing with that is to keep a very close eye on what happens to them. Under my amendment we would know every six months the number of IPP prisoners remaining in custody after their tariff date has expired, the arrangements made for them to complete their courses, the proportion of such prisoners who have already completed their courses, and the number of outstanding applications to the parole board for release. One would hope that within a foreseeable period, perhaps two years, one would see that there was no need for a report because there were no IPP prisoners left in this category. That is the purpose of my amendment, and I look forward to my noble friend's response.
Lord Beecham: My Lords, I support the amendment in the name of the noble Lord, Lord Thomas. He identifies a useful process and an obligation on the Government to ensure that cases are properly considered and that there is a reasonable way of reporting back on them.
Although I sympathise with the amendment moved by the noble Lord, Lord Ramsbotham, I do not find the content of it particularly persuasive. The amendment would require the Secretary of State to delegate the responsibility for implementing release plans without saying to whom the responsibility should be delegated. That would be odd in primary legislation. The requirement to report within a year of enactment on all cases seems to be too restrictive, given that unfortunately under the previous Government there was a backlog in working with such prisoners, and it is not at all clear how much
20 Mar 2012 : Column 859
Having said that, if the noble Lord were minded to look seriously at the propositions-and I would certainly commend the thinking behind them if not necessarily the precise formulation that reaches us in the form of the amendment tabled by the noble Lord, Lord Ramsbotham-that could be brought back for consideration at Third Reading. The direction of travel is right but the precise route is somewhat questionable. I hope that the Minister will think sympathetically about the underlying approach of the two noble Lords whose amendments are before the House.
Lord McNally: My Lords, we return to the issue of dealing with IPP prisoners. I must say to the noble Lord, Lord Beecham, that I do not think there is any doubt about the direction of travel. I am dubious about whether we need the kind of prescriptions in both amendments. Ministers are here to be questioned by Parliament. I do not think that there would be any problem in finding opportunities to check on progress, but let us see.
The Government, through the National Offender Management Service, have already made significant improvements to increase the supply of rehabilitation interventions for this group. One of the main criticisms of IPPs was that people became trapped in them in a kind of Catch-22; they had to fulfil certain requirements to be considered for release but the facilities and channels to get these qualifications, improvements and records were not there. Better use is already being made of sentence plans to prioritise interventions for existing IPPs where the need is greatest, and work is under way to ensure that programmes can be delivered more flexibly, supporting greater access and the inclusion of offenders with more complex needs such as learning difficulties.
In addition, a new specification for offender management, which will provide for the prioritisation of resources based on risk, will take effect from April 2012. Once embedded, this will result in the improved targeting of rehabilitative interventions for IPP prisoners. We are using a range of measures to improve the progression of these prisoners through their sentence, including improvements to assessment, sentence planning, and delivery and parole review processes.
I wrote to the noble Lord following Committee about the work that NOMS is doing to improve support for these prisoners, and I summarise the key points here. First, we plan to issue a prison service instruction that will require effective and realistic sentence plans to be put in place for all offenders on the new extended sentence and for IPP prisoners already in the system.
On the administration of support for IPP prisoners, there are already appropriate structures in place within NOMS to carry out this work. The Indeterminate Sentence Prisoners Co-ordination Group is the NOMS body responsible for co-ordinating the management of all indeterminate sentence prisoners-that is, lifers as well as IPPs. The group's purpose is to develop and promote the most effective means of managing this
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On the specific amendment, I should make it clear that, as legislation currently stands, it would not be possible for the Secretary of State to produce or delegate anything other than sentence plans for these offenders that may or may not result in progress to a quick release on licence. Statutorily, only the Parole Board can actually direct the release of IPP prisoners on the basis of risk criteria. Amending that situation would be a substantial change to sentences that have already been imposed and would require primary legislation. In Committee, I made it clear that the Government do not believe that that would be appropriate. On the proposal that such plans should be delegated, I noted that it would be unusual for legislation to go into this type of detail about the administration of executive duties.
My noble friend Lord Thomas of Gresford proposed a requirement for the Secretary of State to report regularly to Parliament on IPP prisoner parole status and interventions. Information on the number of IPP prisoners whose tariff has expired is published in the quarterly offender management statistics published by my department. The Parole Board's annual report publishes comprehensive data on its IPP application workload and backlog. I must resist the requirement to report on programmes in individual cases, as this would be hugely difficult to achieve. Offender managers will regularly review and update sentence plans.
Our recent research suggests that while the Parole Board will take account of the completion of accredited programmes when considering whether to direct the release of an IPP prisoner, this is only one part of the evidence that it will consider. Research shows that the parole process is targeted on the individual, and only programmes specific to the individual's needs that are successfully completed and show some impact on the prisoner are likely to be taken as evidence of sentence progression. Simply counting completed courses will not be good evidence of how prisoners in general are progressing.
I hope that I have said enough to reassure the House that we have already put effective measures in place to support these prisoners' progress towards release while keeping paramount our concerns for public safety. We have not introduced these reforms to the IPP system simply to see them fail. The biggest incentives for making sure that our reforms work are for the Ministers who brought them in, and we will be pleased to be judged by our results. I hope that both noble Lords will withdraw their amendment.
Lord Thomas of Gresford: My Lords, I believe that I should reply first. The Minister's response was encouraging. He said that Ministers were here to be questioned. I shall make a note in my diary to put in a Written Question every six months, asking for the information-or something like it-that I seek in the
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Amendment 154YUA (to Amendment 154YU) withdrawn.
Lord Ramsbotham: My Lords, I, too, am grateful to the Minister for his explanation. I simply say to the noble Lord, Lord Gresford, that perhaps we could put in Written Questions every other six months.
I acknowledge what the noble Lord, Lord Beecham, said. Having tried various proposals in Committee and seen them rejected, I searched for other proposals. Perhaps we have learnt not only that there is a genuine desire for progress, which the Minister outlined, but that he has a tool that will enable him to answer our Written Questions, which I assure him he will receive. In that spirit, I beg leave to withdraw my amendment.
154YV: Clause 120, page 98, line 46, at end insert "(including one imposed as a result of section 219A or 221A of the Armed Forces Act 2006)"
155: After Clause 120, insert the following new Clause-
"Disclosure of information about convictions etc. of violent abusers to members of the public
(1) The responsible authority for each area must, in the course of discharging its functions under arrangements established under section 325 of the Criminal Justice Act 2003, consider whether to disclose information in its possession about the relevant previous convictions of any violent abuser managed by it to any person deemed by the authority to be at risk.
(2) In the case mentioned in subsection (3) there is a presumption that the responsible authority should disclose information in its possession about the relevant previous convictions of the offender to the particular member of the public.
(3) The case is where the responsible authority for the area has reasonable cause to believe that-
(a) a serious violent abuser managed by it poses a risk in that or any other area of causing serious harm to a particular at risk person, and
(b) disclosure of information about the relevant previous conviction of the offender to the particular member of the public is necessary for the purpose of protecting the at risk person from serious harm caused by the offender.
(4) The presumption under subsection (2) arises if the person to whom the information is disclosed requests the disclosure.
(5) Where the responsible authority makes a disclosure under this section-
(a) it may disclose such information about the relevant previous convictions of the offender as it considers appropriate to disclose to the member of the public concerned, and
(b) it may impose conditions for preventing the member of
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(6) Any disclosure under this section must be made as soon as is reasonably practical having regard to all the circumstances.
(7) The responsible authority for each area must compile and maintain a record about the decisions it makes in relation to the discharge of its functions under this section.
(8) The record must include the following information-
(a) the reasons for making a decision to disclose information under this section,
(b) the reasons for making a decision not to disclose information under this section, and
(c) the information which is disclosed under this section, any conditions imposed in relation to its further disclosure and the name and address of the person to whom it is disclosed.
(9) Nothing in this section requires or authorises the making of a disclosure which contravenes the Data Protection Act 1998.
(10) This section is not to be taken as affecting any power of any person to disclose any information about a violent abuser."
Baroness Gale: My Lords, I am pleased to speak to the amendments in my name, even at this late hour. In Committee on 9 February we debated Amendments 155 and 156, which deal with Clare's law. I spoke in detail about the tragic case of Clare Wood, a young woman who was murdered in 2007 by her ex-partner, George Appleton. Six days after he murdered Clare, he committed suicide. It was then discovered that he had a long background of violence against women. Clare had no way of knowing; if she had, perhaps it could have saved her life. I pay tribute to Michael and Adam Brown, Clare's father and brother, for their campaign to change the law. I also thank my right honourable friend Hazel Blears MP, who is Michael's Member of Parliament and has campaigned with him to bring in Clare's law.
The national domestic violence disclosure scheme represents an important addition to the measures successive Governments have taken in dealing with domestic violence. Until the intervention of your Lordships' House, this Bill might have done so much damage to the rights of victims of domestic abuse because of the legal aid cuts, but finally there is something that bolsters the rights of women-and men-to live in freedom from violence.
10.15 pm
The Home Secretary was concerned that a national disclosure scheme might be used for fishing or spying, so she has instigated a 12-month pilot scheme in four police force areas-Manchester, Gwent, Nottinghamshire and Wiltshire-to test both a "right to ask" scheme and a "right to know" scheme. We and many campaigners are concerned that there must be follow-through. It is not much use having pilot schemes and then not measuring their success and moving forward decisively if the evidence base supports such implementations.
"The Home Secretary must commission an independent review to assess and report on the impact of the National Domestic Violence Disclosure Scheme pilots".
It is the job of that report to provide a yes/no recommendation,
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- "the evidence supporting such a recommendation; and ... whether complementary arrangements are required to help reduce domestic violence".
"The Lord Chancellor must lay a copy of the final report ... with the Government's response, before both Houses of Parliament 18 months after the commencement of the pilots".
That will ensure that the Home Secretary, who has said much that is to be welcomed on domestic violence, cannot ignore the results of the pilots. Instead, it will ensure that the results are presented with an independent voice, in simple language, with simple recommendations on how to proceed.
We believe it is right that this should be put into primary legislation, as otherwise it could simply get lost within the daily workload of the department, and that the report be made to Parliament and the merits of the scheme debated.
I thank the Minister and his right honourable friend the Home Secretary for listening to the voices of Clare's family and Hazel Blears. I believe we are in broad agreement on this matter. While we welcome the idea of the pilots, I hope the Minister can understand and agree on the need for a report to Parliament. I beg to move.
Baroness Hamwee: My Lords, I am sorry that I was unable to take part in the debate in Committee.
The noble Baroness has spoken powerfully about a very serious subject. I share the views of those who responded to the consultation with some doubts about whether it was appropriate or necessary to change the law. These included key stakeholders such as Women's Aid, Refuge, Liberty and the Local Government Association. I share their concerns about whether introducing a new law is realistic.
I do not know anyone who has gone into a relationship with the mindset that suggests checking up on the new partner through this sort of scheme. Most importantly, it could well be a distraction from the important work that still needs to be done in this area, but I will not spend more time on that. The thrust of the noble Baroness's speech was about the pilots. If legislation was not needed for the pilots, legislation is not needed for their assessment. I would not lose faith in any Government if, having committed themselves to pilots, they would seek to avoid an evaluation and assessment. We have too much on the statute book. Let us see the evaluation of a pilot put in place on the basis of the law that we have now before Amendments 155 and 156 or anything like them. I will take my cue from my noble friend and put asking questions about it in my diary. I dare say that the noble Baroness, Lady Gale, will do the same. She has a great record for raising these issues, so she is not going to let this rest. Parliament is going to hear about it.
Baroness Northover: My Lords, when we debated these amendments in Committee my noble friend Lord McNally was able to tell the Committee how sympathetic the Government were to the thinking behind them, borne out of the circumstances of the tragic murder of Clare Wood by Clare's ex-boyfriend who had previous
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As the noble Baroness has flagged, the Home Secretary has announced the Government's intention to pilot a domestic violence disclosure scheme for one year in the four police force areas of Greater Manchester, Gwent, Nottinghamshire and Wiltshire. The pilot will start this summer, and I hope that noble Lords will welcome it. The pilot, which is similar in spirit to that envisaged by the noble Lady's amendment, will be established under existing police powers and test two types of process.
The first will be triggered by a request by a member of the public, in other words, a "right to ask". The second will be triggered by the police, where they make a proactive decision to disclose the information in order to protect a potential victim, which we are calling a "right to know". The Government believe that a disclosure scheme, which establishes a framework with recognised and consistent procedures for disclosing information, will enable new partners of previously violent individuals to make informed choices about how and whether they take that relationship forward. I note what my noble friend Lady Hamwee said on this, and it may be that she would prefer the second pilot.
The Home Secretary's announcement follows a consultation held by the Government. A clear majority of respondents favoured the introduction of a national disclosure scheme. However, the consultation raised important issues about the scope and proportionality of the information that should be disclosed to potential victims, the safeguards that will be needed against malicious applications and the paramount need for the safety of victims to be taken into account. These are serious matters, and the Home Secretary has concluded that it is therefore right that these issues are addressed and tested in a pilot to ensure that the disclosure scheme is compatible with all relevant law and accounts for the safety and needs of potential victims. The Home Office is undertaking further scoping work to decide how the disclosure scheme will work.
Amendment 156ZA would require the Secretary of State to commission an independent review of the pilot and to publish its findings. I can confirm, as my noble friend Lady Hamwee indicated, that we will conduct an assessment of the domestic violence disclosure scheme as part of the pilot process and make our conclusions public. I hope that that reassures the noble Baroness, Lady Gale. The assessment will be used to inform decisions about whether the scheme should be expanded further after piloting.
The House may be assured that the Government's aim is to end all forms of violence against women and girls. Soon after coming to office, we set out a new strategy to end violence against women and girls, and on 8 March we published an updated action plan in this area. The domestic violence disclosure scheme pilot announced by the Home Secretary is part of that updated action plan. The fact that approximately two people are killed by their current or former partner each week underlines the need for action. The Government believe that the domestic violence disclosure scheme
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Baroness Gale: I thank the Minister for her reply and the noble Baroness, Lady Hamwee, for her contribution to this debate. I agree that in the early stages of a new romance a woman is not likely to check on her new partner but, as time progresses, she may have queries and worries. We know the success of Sarah's law. I am sure that the pilot and the assessment could provide a lot of evidence which would make it useful for rolling out throughout the country.
I am glad that the assessments about which the Minister spoke will be made public. As the noble Baroness, Lady Hamwee, suggested, we will be putting this in our diaries, checking up and asking questions. Certainly, at the end of the first year everyone will want to know the results of the assessment. I am glad that the Minister once again made the Government's commitment to end violence against women. Both the previous Labour Government and the coalition Government have been committed to this and we have a lot in common. I do not think that there is much between us at all. I thank the Minister for her response. With that, I beg leave to withdraw the amendment.
Amendments 156 and 156ZA not moved.
156A: After Clause 121, insert the following new Clause-
"Benefits payments to prisoners
(1) Regulations shall provide that a person undergoing imprisonment or detention in legal custody who, at the time that imprisonment or custody commences, is in receipt of any of the qualifying benefits, shall be assessed, during his or her time in imprisonment or custody, for eligibility for those benefits at the time of his or her imprisonment or custody.
(2) For the purposes of this section, the qualifying benefits are-
(a) universal credit;
(b) income support;
(c) personal independence payment, to the extent provided for in regulations made under section 84 (prisoners) of the Welfare reform Act 2012; and
(d) any other benefits provided for in regulations made under this section.
(3) Regulations made under this section shall provide that the assessment required under subsection (1) shall commence as soon as a person is received into imprisonment or custody.
(4) Regulations shall in particular provide that a person appointed by the Secretary of State shall record, at the time a person is received into imprisonment or custody, details of any qualifying benefits which are in payment at that time, together with any personal information needed to establish the person's identity, including but not limited to their national insurance number.
(5) An assessment of eligibility under subsection (1) shall be completed in such time as to ensure that the person assessed
20 Mar 2012 : Column 866
(6) Regulations under this section shall be made by the Secretary of State and shall be subject to the affirmative resolution procedure."
Lord Ramsbotham: My Lords, I shall again be brief, because we had a good discussion on this in Committee. I was very glad that the Minister told the House about the advance plans to use the work programme as the primary vehicle for help and support so that all prison leavers who claim jobseeker's allowance will enter the work programme from the first day of release from prison. The background to this is the present situation where people leave prison with a release grant of £46 and then have to live for up to three weeks before their claim, having been processed by the jobcentre, comes through. This amendment is intended to prevent that, because it is the most terrible cause of reoffending. However, the comments in Committee dealt with jobseeker's allowance, and mention was made of universal credit and the ability to use payment on account to cover the gap before a universal credit payment came through. What was not mentioned in Committee was the progress on all the other claims that might be processed or bid for by prisoners. Mention also was made of work being done with the Department for Work and Pensions to ensure that this was looked at.
My proposal might seem prescriptive but it is based on observation of the cause of considerable misery when people are released. It suggests that the jobcentre staff currently working in every prison should be required to process the applications and entitlements of every prisoner while they are in prison so that proper plans are made. When they leave they would not have to start doing work that could have been done already, and thus, we hope, it will prevent them reoffending, as seems to happen when people find themselves without the means to support themselves for too long before their benefits come through. The purpose of this amendment is therefore to tidy up the discussions that we had in Committee, and to ask the Minister to ensure that the work with the Department for Work and Pensions is in progress.
10.30 pm
Baroness Hayter of Kentish Town: My Lords, I thank the noble Lord, Lord Ramsbotham, for continuing to bring this issue forward. It is a vital area and we should work to ensure that when people leave custody, they will have swift access to the benefits to which they are entitled.
As I mentioned in an earlier debate, we think of coming out of prison as something positive. However, it can be traumatic for people who rely on benefits in a system which they see as complicated, slow and sometimes unhelpful. One report has made the point that people who leave prison with no financial contingency and are highly reliant on the benefit system might, if not helped, return to crime, which has been a proven source of income for them in the past. We know that there have been delays and problems with pre-custodial claims which need to be resolved before a new claim can be made. There can be delays because a person has no fixed abode, and there are sometimes queries over
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Prisoners released over the next few years will come out to a whole new welfare system. The Welfare Reform Act will have changed things enormously, and even those claiming benefits before they went in will have to negotiate a whole new system of rules. There will also be the benefit cap, the bedroom tax and different units to which the payments are made. As the noble Lord, Lord Ramsbotham, said, although we welcome the advice given on the jobs programme, released prisoners will also need help with benefits if they are to survive when they come out.
This amendment, which I trust the Government will accept, will be good for prisoners. It will also be good for society and the state if it reduces the chances of reoffending and helps ex-prisoners to re-establish themselves in society.
Baroness Northover: My Lords, I, too, thank the noble Lord, Lord Ramsbotham, for continuing to examine the practical difficulties that some ex-prisoners face. We appreciate the difficulties that they may face when trying to resettle in the community and we have taken a number of steps to address these problems.
When the noble Lord, Lord Ramsbotham, withdrew his amendment in Committee, he expressed the hope that the Ministry of Justice and the Department for Work and Pensions would communicate more effectively on this issue. My noble friend Lord McNally wrote to my noble friend Lord Freud and I can give the noble Lord an absolute reassurance that our departments are working very closely to address the gap between release and receipt of benefits.
Prisoners' needs are already often assessed on reception as part of the sentence plan. New prisoners are specifically asked about benefits by staff at induction and are referred to one of the 140 Jobcentre Plus employment and benefit advisers currently working in prisons. In addition, all prison leavers have their rehabilitation needs reviewed as part of the discharge process only weeks before release. It is this period close to release that is key to meeting resettlement needs, and that is where the Government have invested resources.
The Government are doing a great deal to overcome resettlement barriers and are currently implementing a strong package of measures. The key strategy to take this forward is the data-linking project which is being undertaken by the Ministry of Justice and the DWP. The project shows that more than half of offenders sentenced to custody are claiming benefits immediately prior to their incarceration, and two years after release from prison almost half are claiming out-of-work benefits. This is the scale of the task we face as we seek to make improvements to the process.
However, improvements are there. From 1 March, offenders leaving custody have their jobseeker's allowance claims processed before they leave. We expect to reach some 30,000 prisoners a year. Jobcentre Plus advisers are rightly in the lead on providing advice and administering benefit claims, but they are working closely
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We are also aiming to address the finance gap through our plans for universal credit payments. Under our proposals, an applicant, on leaving prison with a valid claim, can be paid his claim immediately through payment on account in the same way as any other benefit claimant. All of this is intended to help prison leavers get their benefits quickly and help increase their chances of finding work, which is also a key part of the Government's agenda on reducing reoffending.
The noble Lord's Amendment 156A would have prisons potentially duplicating the work of Jobcentre Plus. In addition, the process proposed by the amendment would require the Prison Service to conduct sometimes wasted work. A mandatory assessment of all offenders on entering into custody would either be premature-as the work done on entering prison is highly likely to need updating as the sentence continues-or not needed at all, if the personal circumstances of that person do not justify it.
The Government are fully committed to ensuring that ex-prisoners have the support they need to make a successful and productive return to society. The noble Lord, Lord Ramsbotham, is quite right in his aim in this respect. Our proposals on ex-prisoners' access to welfare benefits are part of that commitment. I hope that what I have said today reassures the noble Lord and that he will withdraw his amendment.
Lord Ramsbotham: My Lords, I am grateful to the Minister for that reply. Just to correct her, I had no intention of duplicating any work; I was hoping that the Jobcentre Plus representative in prison would do the work while in prison so that it did not have to be done in the jobcentre outside prison. So it was early work by the jobcentre-nothing more by the Prison Service. I am very glad to hear that this has happened, and it is useful that, at last, the Department for Work and Pensions and the Ministry of Justice have come together, because this is a piece of joint working that could have been done years ago and would have saved a great deal of misery among released prisoners. Rather like the previous amendment, this is something on which the Government can expect to be questioned at fairly regular intervals in the future. Again, in that spirit, I beg leave to withdraw my amendment.
156B: Before Schedule 22, insert the following new Schedule-
"Dangerous offenders subject to service law etcPart 1Sentences for dangerous offenders subject to service law etcArmed Forces Act 2006 (c. 52)1 The Armed Forces Act 2006 is amended as follows.
2 After section 218 and the italic heading "Required or discretionary sentences for particular offences" insert-
20 Mar 2012 : Column 869
"218A Life sentence for second listed offence
(1) This section applies where-
(a) a person aged 18 or over is convicted by the Court Martial of an offence under section 42 (criminal conduct);
(b) the corresponding offence under the law of England and Wales is an offence listed in Part 1 of Schedule 15B to the 2003 Act;
(c) the offence was committed after this section comes into force; and
(d) the sentence condition and the previous offence condition are met.
(2) Section 224A(2) of the 2003 Act applies in relation to the offender.
(3) In section 224A(2)(a) of that Act as applied by subsection (2)-
(a) the reference to "the offence" is to be read as a reference to the offence under section 42; and
(b) the reference to "the previous offence referred to in subsection (4)" is to be read as a reference to the previous offence referred to in subsection (5) of this section.
(4) The sentence condition is that, but for this section, the Court Martial would, in compliance with sections 260(2) and 261(2), impose a sentence of imprisonment for 10 years or more, disregarding any extension period imposed under section 226A of the 2003 Act as applied by section 219A of this Act.
(5) The previous offence condition is that-
(a) at the time the offence under section 42 was committed, the offender had been convicted of an offence listed in Schedule 15B to the 2003 Act ("the previous offence"); and
(b) a relevant life sentence or a relevant sentence of imprisonment or detention for a determinate period was imposed on the offender for the previous offence.
(6) A sentence is relevant for the purposes of subsection (5)(b) if it would be relevant for the purposes of section 224A(4)(b) of the 2003 Act (see subsections (5) to (10) of that section).
(7) A sentence required to be imposed by section 224A(2) of that Act as a result of this section is not to be regarded as a sentence fixed by law."
3 (1) Section 219 (dangerous offenders aged 18 or over) is amended as follows.
(2) For subsection (2) substitute-
"(2) Section 225(2) of the 2003 Act applies in relation to the offender."
(3) In subsection (3) omit "and (3A)".
4 In the heading of that section for "Dangerous" substitute "Life sentence for certain dangerous".
"219A Extended sentence for certain violent or sexual offenders aged 18 or over
(1) This section applies where-
(a) a person aged 18 or over is convicted by the Court Martial of an offence under section 42 (criminal conduct) (whether the offence was committed before or after the commencement of this section);
(b) the corresponding offence under the law of England and Wales is a specified offence;
(c) the court is of the required opinion (defined by section 223);
(d) the court is not required to impose a sentence of imprisonment for life by section 224A(2) of the 2003 Act (as applied by section 218A of this Act) or section 225(2) of that Act (as applied by section 219 of this Act); and
(e) condition A or B is met.
(2) Condition A is that, at the time the offence under section 42 was committed, the offender had been convicted of an offence listed in Schedule 15B to the 2003 Act.
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(3) Condition B is that, if the court were to impose an extended sentence of imprisonment under section 226A of the 2003 Act as a result of this section, the term that it would specify as the appropriate custodial term would be at least 4 years.
(4) Subsections (4) to (9) of section 226A of the 2003 Act apply in relation to the offender.
(5) In section 226A(4) to (9) of the 2003 Act as applied by this section-
(a) the reference in subsection (6) to section 153(2) of the 2003 Act is to be read as a reference to section 261(2) of this Act;
(b) the reference in subsection (7) to further specified offences includes a reference to further acts or omissions that would be specified offences if committed in England and Wales;
(c) the reference in subsection (8)(a) to a specified violent offence is to be read as a reference to an offence under section 42 as respects which the corresponding offence under the law of England and Wales is a specified violent offence; and
(d) the reference in subsection (8)(b) to a specified sexual offence is to be read as a reference to an offence under section 42 as respects which the corresponding offence under the law of England and Wales is a specified sexual offence.
(6) In this section "specified offence", "specified sexual offence" and "specified violent offence" have the meanings given by section 224 of the 2003 Act."
6 Omit section 220 (certain violent or sexual offenders aged 18 or over).
7 In section 221 (dangerous offenders aged under 18) for subsection (2) substitute-
"(2) Section 226(2) of the 2003 Act applies in relation to the offender."
8 In the heading of that section for "Dangerous" substitute "Life sentence for certain dangerous".
"221A Extended sentence for certain violent or sexual offenders aged under 18
(1) This section applies where-
(a) a person aged under 18 is convicted by the Court Martial of an offence under section 42 (criminal conduct) (whether the offence was committed before or after the commencement of this section);
(b) the corresponding offence under the law of England and Wales is a specified offence;
(c) the court is of the required opinion (defined by section 223);
(d) the court is not required by section 226(2) of the 2003 Act (as applied by section 221 of this Act) to impose a sentence of detention for life under section 209 of this Act; and
(e) if the court were to impose an extended sentence of detention under section 226B of the 2003 Act as a result of this section, the term that it would specify as the appropriate custodial term would be at least 4 years.
(2) Subsections (2) to (7) of section 226B of the 2003 Act apply in relation to the offender.
(3) In section 226B(2) to (7) of the 2003 Act as applied by this section-
(a) the reference in subsection (4) to section 153(2) of the 2003 Act is to be read as a reference to section 261(2) of this Act;
(b) the reference in subsection (5) to further specified offences includes a reference to further acts or omissions that would be specified offences if committed in England and Wales;
(c) the reference in subsection (6)(a) to a specified violent offence is to be read as a reference to an offence under section 42 as respects which the corresponding offence
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(d) the reference in subsection (6)(b) to a specified sexual offence is to be read as a reference to an offence under section 42 as respects which the corresponding offence under the law of England and Wales is a specified sexual offence.
(4) In this section "specified offence", "specified sexual offence" and "specified violent offence" have the meanings given by section 224 of the 2003 Act."
10 Omit section 222 (offenders aged under 18: certain violent or sexual offences).
Part 2Consequential provisionJuries Act 1974 (c. 23)11 In Part 2 of Schedule 1 to the Juries Act 1974 (persons disqualified from jury service) in paragraph 6(d) after "2003" insert "(including such a sentence imposed as a result of section 219A, 220, 221A or 222 of the Armed Forces Act 2006)".
Rehabilitation of Offenders (Northern Ireland) Order 1978 (S.I. 1978/1908 (N.I. 27))12 In article 6(1) of the Rehabilitation of Offenders (Northern Ireland) Order 1978 (sentences excluded from rehabilitation under the Order) in sub-paragraph (g)(iii) after "section" insert "226A, 226B,".
Criminal Justice Act 1982 (c. 48)13 In section 32 of the Criminal Justice Act 1982 (early release of prisoners) in subsection (1A)-
(a) before "227" insert "226A or", and
(b) after "219" insert ", 219A".
Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)14 The Powers of Criminal Courts (Sentencing) Act 2000 is amended as follows.
15 In section 99 (conversion of sentence of detention to sentence of imprisonment) in subsection (6)-
(a) after "226" insert ", 226B", and
(b) after "221" insert ", 221A".
16 In section 106A(1) (interaction with sentence of detention) in the definition of "sentence of detention"-
(a) before "228", in the second place it appears, insert "226B or", and
(b) before "222" insert "221A or".
Criminal Justice and Court Services Act 2000 (c. 43)17 The Criminal Justice and Court Services Act 2000 is amended as follows.
18 In section 62 (release on licence etc: conditions as to monitoring) in subsection (5)(f) after "221" insert ", 221A".
19 In section 64 (release on licence etc: drug testing requirements) in subsection (5)(f) after "221" insert ", 221A".
Sexual Offences Act 2003 (c. 42)20 In section 131 of the Sexual Offences Act 2003 (young offenders: application) in paragraph (l) before "222" insert "221A or".
Criminal Justice Act 2003 (c. 44)21 In section 237 of the Criminal Justice Act 2003 (meaning of fixed term prisoner etc) in subsection (1B) after paragraph (b) insert-
"(ba) references to a sentence under section 226A of this Act include a sentence under that section passed as a result of section 219A of the Armed Forces Act 2006;
(bb) references to a sentence under section 226B of this Act include a sentence under that section passed as a result of section 221A of the Armed Forces Act 2006;".
Armed Forces Act 2006 (c. 52)22 The Armed Forces Act 2006 is amended as follows.
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23 (1) Section 188 (consecutive custodial sentences) is amended as follows.
(2) In subsection (2) in paragraph (c)-
(a) for "228" substitute "226B", and
(b) for "222" substitute "221A".
(3) In subsection (4) in paragraph (c)-
(a) before "228" insert "226B or", and
(b) before "222" insert "221A or".
24 In section 209 (offenders aged under 18 convicted of certain serious offences: power to detain for specified period) in subsection (7)-
(a) for "section 226(2)" substitute "sections 224A and 226(2)", and
(b) for "section 221(2)" substitute "sections 218A and 221(2)".
25 In section 211 (offenders aged under 18: detention and training orders) in subsection (4)-
(a) after "218," insert "218A,", and
(b) for "222" substitute "221A".
26 In section 221(3) (dangerous offenders aged under 18) after "as applied" insert "by".
27 In section 223 (the "required opinion" for the purposes of sections 219 to 222) in subsection (1)-
(a) for "220(1)" substitute "219A(1)", and
(b) for "222(1)" substitute "221A(1)".
28 In the heading of that section for "222" substitute "221A".
29 For section 224 (place of detention under certain sentences) substitute-
"224 Place of detention under certain sentences
Section 235 of the 2003 Act (detention under sections 226, 226B and 228) applies to a person sentenced to be detained under section 226(3), 226B or 228 of that Act as applied by section 221, 221A or 222 of this Act."
30 (1) Section 228 (appeals where previous convictions set aside) is amended as follows.
(2) For subsection (1) substitute-
"(1A) Subsection (3) applies in the cases described in subsections (1B) to (2).
(a) a sentence has been imposed on any person under section 224A of the 2003 Act (as applied by section 218A of this Act);
(b) a previous conviction of that person has been subsequently set aside on appeal; and
(c) without that conviction, the previous offence condition mentioned in section 218A(1)(d) would not have been met.
(1C) The second case is where-
(a) a sentence has been imposed on any person under section 225(3) of the 2003 Act (as applied by section 219(2) of this Act);
(b) the condition in section 225(3A) of the 2003 Act was met but the condition in section 225(3B) of that Act was not; and
(c) any previous conviction of the person without which the condition in section 225(3A) would not have been met is subsequently set aside on appeal.
(a) a sentence has been imposed on any person under section 226A of the 2003 Act (as applied by section 219A of this Act);
(b) the condition in section 219A(2) was met, but the condition in section 219A(3) was not; and
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(c) any previous conviction of the person without which the condition in section 219A(2) would not have been met is subsequently set aside on appeal.
(1E) The fourth case is where-
(a) a sentence has been imposed on any person under section 227(2) of the 2003 Act (as applied by section 220(2) of this Act);
(b) the condition in section 227(2A) of the 2003 Act was met but the condition in section 227(2B) of that Act was not; and
(c) any previous conviction of the person without which the condition in section 227(2A) would not have been met is subsequently set aside on appeal."
(a) for "Subsection (3) also applies" substitute "The fifth case is"; and
(b) in paragraph (a) after "226" insert "of this Act".
(4) After subsection (3) insert-
"(3A) Subsection (3B) applies where-
(a) a sentence has been imposed on a person under section 224A of the 2003 Act (as applied by section 218A of this Act);
(b) a previous sentence imposed on that person has been subsequently modified on appeal; and
(c) taking account of that modification, the previous offence condition mentioned in section 218A(1)(d) would not have been met.
(3B) An application for leave to appeal against the sentence mentioned in subsection (3A)(a) may be lodged at any time within 29 days beginning with the day on which the previous sentence was modified."
(5) In subsection (4) for "Subsection (3) has" substitute "Subsections (3) and (3B) have".
31 In section 237 (duty to have regard to the purposes of sentencing etc) in subsection (3)(b)-
(a) after "sections" insert "218A,", and
(b) before "225(2)" insert "224A,".
32 In section 246 (crediting of time in service custody: terms of imprisonment and detention) in subsection (6)(b)-
(a) before "228" insert "226B or", and
(b) before "222" insert "221A or".
33 (1) Section 256 (pre-sentence reports) is amended as follows.
(a) for "220(1)" substitute "219A(1)", and
(b) for "222(1)" substitute "221A(1)".
(3) After subsection (9) insert-
"(10) The reference in subsection (1)(a) to a court forming any such opinion as is mentioned in section 260(2) or 261(2) includes a court forming such an opinion for the purposes of section 218A(4)."
34 (1) Section 260 (discretionary custodial sentences: general restrictions) is amended as follows.
(a) before "225(2)" insert "224A,", and
(b) before "219(2)" insert "218A,".
(3) After subsection (4) insert-
"(4A) The reference in subsection (4) to a court forming any such opinion as is mentioned in subsection (2) or section 261(2) includes a court forming such an opinion for the purposes of section 218A(4).
(4B) The reference in subsection (4) to a court forming any such opinion as is mentioned in section 261(2) also includes a court forming such an opinion for the purposes of section 226A(6) or 226B(4) of the 2003 Act (as applied by section 219A or 221A of this Act)."
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35 (1) Section 261 (length of discretionary custodial sentences: general provision) is amended as follows.
(a) before "225" insert "224A,", and
(b) before "219(2)" insert "218A,".
(3) In subsection (3) for "220, 222" substitute "219A, 221A".
36 In section 273 (review of unduly lenient sentence by Court Martial Appeal Court) in subsection (6)(b)-
(a) before "225(2)" insert "224A,", and
(b) before "219(2)" insert "218A,".
37 In section 374 (definitions applying for purposes of the whole Act) in the definition of "custodial sentence" after paragraph (e) (but before the "or" at the end of that paragraph) insert-
"(ea) a sentence of detention under section 226B of that Act passed as a result of section 221A of this Act;".
Counter-Terrorism Act 2008 (c. 28)38 In Schedule 6 to the Counter-Terrorism Act 2008 (notification requirements: application to service offences) in paragraph 5(1)(a) after sub-paragraph (vi) (but before the "or" at the end of that sub-paragraph) insert-
"(via) detention under section 226B of that Act (extended sentence of detention for certain dangerous offenders aged under 18);".
Part 3Transitory provision39 (1) In relation to any time before the repeal of section 30 of the Criminal Justice and Court Services Act 2000 (protection of children: supplemental) by Schedule 10 to the Safeguarding Vulnerable Groups Act 2006, that section has effect with the modification in sub-paragraph (2).
(2) In subsection (1), in paragraph (dd) of the definition of "qualifying sentence", after "2003" insert "(including such a sentence imposed as a result of section 221, 221A or 222 of the Armed Forces Act 2006)"."
156C: After Clause 131, insert the following new Clause-
"Rehabilitation of offenders: equality of treatment
In any case where a statute provides for a person to have a right to apply to the Secretary of State to have a conviction or caution disregarded, the provisions of that statute shall apply in the same way to any relative of any deceased person who would, had they still been alive, have been eligible to apply to have such a conviction or caution disregarded in accordance with the provisions of that statute."
Lord Sharkey: My Lords, I will speak briefly to this amendment. As your Lordships will recall, there is a provision in the Protection of Freedoms Bill which will, when it is enacted, allow all those convicted of homosexual acts subsequently decriminalised to apply to the Secretary of State to have their convictions disregarded. This provision was widely welcomed in all parts of your Lordships' House. According to an estimate provided by the House of Commons Library, since the relevant laws came into force in 1885, 75,000 men have been convicted of such now-decriminalised offences. Of those 75,000 men, it is estimated that 16,000 are still living. The Protection of Freedoms Bill will allow these men to apply to have their convictions disregarded;
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As things stand, however, this comfort and rehabilitation will not be available to families, relatives, friends and loved ones of those convicted under these repealed statutes and who have since died. Our amendment simply proposes equal rehabilitation and straightforward equality of treatment for all those convicted under the repealed laws. Under the provisions of the amendment, the relatives of those now convicted under the repealed laws but now deceased would be able to apply to have the convictions disregarded in exactly the same way as those who are still living.
We believe that this very simple extension is fair and right in principle. It would provide some comfort and closure for the families, relatives, friends and loved ones of those who have been convicted but are not able to apply for a disregard for themselves. We believe that all those convicted under these repealed and cruel laws should have an equal opportunity for rehabilitation. The amendment would go a small way towards making amends to the many thousands of men who were cruelly and unjustly persecuted simply for being gay.
One of the men who falls into this category is Alan Turing. This is the year of the centenary of his birth, and the Royal Mail is to issue a commemorative stamp in his honour. I think that everyone would acknowledge that Turing's work at Bletchley Park on cracking the Enigma code contributed greatly to our efforts in the last world war and that Turing is, of course, the father of modern computer science. I know that my noble friend the Minister is well aware of the injustice of Turing's treatment and, by extension, is well aware of the injustice in the treatment of all gay men similarly convicted and punished.
In answer to my Question for Written Answer in February, the noble Lord, Lord McNally, said:
"It is tragic that Alan Turing was convicted of an offence which now seems both cruel and absurd-particularly poignant given his outstanding contribution to the war effort".-[Official Report, 2/2/12; col. WA342.]
Those sentiments echo those of the then Prime Minister, Gordon Brown, who, in writing in the Daily Telegraph in September 2009, said of Turing:
"The debt of gratitude he is owed makes it all the more horrifying, therefore, that he was treated so inhumanely. He was in effect tried for being gay".
"I am pleased to have the chance to say how deeply sorry I and we all are for what happened to him".
Alan and the many thousands of other gay men who were convicted as he was convicted, under homophobic laws, were treated terribly. These many thousands of gay men were treated terribly, and our amendment would help to put some of that right. I hope that my noble friend will be able to give this amendment sympathetic consideration and I beg to move.
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