Clause 90 - Crediting of periods of remand in custody
Legal Aid, Sentencing and Punishment of Offenders bill
5:00 pm

Crispin Blunt (Parliamentary Under Secretary of State (Prisons and Probation), Justice; Reigate, Conservative)

It may be helpful to the Committee if I lay out what we are seeking to achieve with this aspect of the Bill. Clause 90 is the first in a series of provisions in the Bill designed to deal with the current complexity of the statutory provisions governing the release and recall of prisoners. It is important that custodial sentences are subject to a set of clear and unambiguous provisions that determine how long prisoners are required to serve and on what basis they will be released. Such provisions need to be easily understood and applied, but at the moment they are spread across a number of different statutes and subject to commencement orders with complex and difficult to follow transitional arrangements and savings of repeals, which have subsequently been further amended. Unsurprisingly, that has created an intricate web of provisions that are very difficult to understand and follow, even for criminal justice experts and practitioners, let alone prisoners themselves and the public.

There have been a number of legal challenges in which the courts have had to grapple with the provisions and to make sense of how Parliament intended them to apply. That is not always clear and has been open to different interpretations. Judges have rightly been critical of how the legislation in this area has been allowed to evolve in such a piecemeal and complex way and have called on the Government to sort it out. Well, now they have a Government who will do so. [Laughter.] I referred this morning to the infectious sense of humour of the hon. Member for Bishop Auckland. I shall see whether I can inoculate myself from it in further explaining these requirements.

Our objective with chapter 4 of the Bill is not to add to the problem by making further piecemeal changes or to make any substantive changes to how custodial sentences currently operate. Instead, we intend to simplify and clarify the current release and recall provisions for determinate sentences, primarily by ensuring that they are all brought within a single statute.

It is all very well to be light-hearted about our trying to sort out the mess that we have created as a legislative body, but of course for the poor people who have been on the receiving end and trying to make the calculations, it is a serious matter. We are approaching it in two stages. The first is to make the necessary amendments to the current provisions of the Criminal Justice Act 2003 to establish the release regime that we want to apply to determinate sentences. That is what clauses 90 to 100 will do.

The second stage will be to consolidate within the 2003 Act the provisions of the Criminal Justice Acts of 1967 and 1991 that will need to continue to apply for prisoners who still fall to be released under those previous arrangements. We intend to introduce amendments to achieve that consolidation. That in itself is a difficult and complex task, which is why we need to take the time to get it right and ensure that the full range of sentencing scenarios is covered. I reassure the Committee, though, that the provisions will be purely technical and consolidating. They will not make any changes to the release arrangements that currently apply to the 1967 Act and 1991 Act prisoners. Their purpose is simply to bring the relevant provisions into the 2003 Act and to set out how they should operate in the context of that Act.

In the meantime, clause 102 provides an order-making power for the consolidation to be achieved through secondary legislation if for any reason it is not possible to achieve it under the Bill. I will say more about that when we discuss clause 102, but our intention is to remove that order-making power from the Bill when the consolidating amendments are tabled.

Clause 90 deals with how remand time is to be calculated and applied to a prisoner’s sentence. It removes the current requirement in section 240 of the 2003 Act for courts to direct how many days spent in custody on remand are to count as time served towards a custodial sentence in respect of sentences imposed for offences committed on or after 4 April 2005. In its place, a new section is inserted—section 240ZA—that provides for the Prison Service to administratively credit all relevant remand time automatically.

Currently, for remand to custody to be credited towards a sentence imposed for an offence committed on or after 4 April 2005, it must be directed to count by a court. However, for the court to be able to direct the number of days that should count, it first requires the Prison Service to provide the number of remand days that are available for direction. That requirement has proved to be operationally problematic, resulting in the original sentencing court or appeal courts being required to reconsider directions where it is subsequently found that the direction was based on incorrect or incomplete information. That has imposed a heavy burden, taking up valuable court time.

The Prison Service already has the power to administratively credit time spent in custody on remand and in respect of custodial sentences imposed for offences  committed before 4 April 2005, which are currently dealt with under the Criminal Justice Act 1991. This means that we have the unsatisfactory position of having two different approaches, depending on whether the sentence is for a 1991 Act or a 2003 Act offence. For a 1991 Act offence, the prison applies the remand time administratively, but for a 2003 Act offence the court must direct how much remand time is to count. Given that in practice, for all cases including those under the 2003 Act, it is the Prison Service that must calculate the remand time for the courts anyway, it is simpler and more efficient to allow this to be applied administratively rather than having to inform the court so that it can be directed by the judge or magistrate.

The approach taken by the proposed new section 240ZA will simplify the process for the application of remand time and thereby remove the burden currently imposed on the courts. It ensures that any day spent in custody on remand that is relevant to the offence for which the sentence has been imposed counts as time served towards that sentence, unless it is a day spent on remand that was also spent serving a separate sentence.

If an offender is remanded to custody for one offence but sentenced for a second offence, the clause provides for the remand time in respect of the first offence to be counted as time served towards the sentence for the second offence, as long as the second offence is founded on the same facts or evidence as the first offence. The clause ensures that a period of remand time may be counted as time served only once.