Remand in Custody (Effect of Concurrent and Consecutive Sentences of Imprisonment) Rules 2005

– in the House of Lords at 4:14 pm on 13 June 2005.

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Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice System and Law Reform), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management) 4:14, 13 June 2005

rose to move, That the draft rules laid before the House on 28 February be approved [11th Report from the Joint Committee, Session 2004–05].

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice System and Law Reform), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, the purpose of these rules is to support the new remand provisions in the Criminal Justice Act 2003, which were brought into effect on 4 April 2005. The rules will maintain the principle that remand time served at the time as a sentence of imprisonment does not count towards time served. They also maintain the principle that a day of shared remand time should only count once towards time served. These principles have served us well over the years, and it is in the interests of justice that they should continue.

I know the noble Lord, Lord Avebury, is concerned about these issues, so it may be convenient if I give a little more detail at this stage than I would otherwise have done.

Sections 240 to 243 of the Criminal Justice Act 2003 created new arrangements for crediting remand time towards sentence. The main change is that the court, not the Prison Service, will be responsible for determining the period of remand time that will count towards the sentence. The court will have discretion if it considers it just in all the circumstances not to count some or all days spent on remand towards sentence. Section 240 (4) (a) gives the Secretary of State power to make rules that will prevent the court from making a direction in respect of certain days in certain circumstances.

The arrangement set out in Sections 240 to 243 of the Criminal Justice Act 2003 will apply to offences committed on or after 4 April 2005. In these cases the court will be required to make a direction in relation to remand time, unless prevented from doing so by these rules, or because it does not consider it just to do so. Offences that were committed before 4 April 2005 will be dealt with under the old procedures governed by Section 67 of the Criminal Justice Act 1967, regardless of when they are sentenced.

The first rule prevents the court from making a direction in relation to days spent on remand where the offender was also serving a sentence of imprisonment for another offence. This preserves the position that existed prior to implementation of provisions of the 2003 Act. Its purpose is to stop a prisoner benefiting from a discount of remand time when he would have been in prison anyway.

The second rule prevents the court from making a direction that would have the effect of counting the same remand day twice. This could happen if consecutive sentences were given for an old and a new offence and there was shared remand time. The rules as drafted would prevent the court from counting remand time in relation to days that would already fall to be counted under Section 67 of the 1967 Act. Again, the purpose is to stop a prisoner from benefiting from a technicality.

The rules maintain the principle that remand time served at the same time as a sentence of imprisonment does not count towards time served; and also that a day of shared remand time should count only once towards time served. While the court is able to deliver the same effect simply through using its discretion, it is desirable to put these matters beyond doubt, as any decisions by the court to allow time in these circumstances would, perhaps inadvertently, undermine public confidence in the provisions.

As I said at the beginning, the rules maintain the principle that remand time served at the same time as a sentence of imprisonment does not count towards time served. We are just preserving the position in a way I think we all recognise. I hope that with that full explanation I have pre-empted some of the questions that might otherwise have been asked. I beg to move.

Moved, That the draft rules laid before the House on 28 February be approved [11th Report from the Joint Committee, Session 2004–05].—(Baroness Scotland of Asthal.)

Photo of Lord Avebury Lord Avebury Spokesperson in the Lords (With Special Responsibility for Africa), Foreign & Commonwealth Affairs, Spokesperson in the Lords (Civil Liberties), Home Affairs

My Lords, I am most grateful to the Minister for explaining in some detail how this order works and how it relies on the principle that if a person is already in custody on another offence, that should not allow the time to be deducted from the new sentence which is to be imposed.

As I understand it, from the time that Section 240 came into effect until the making of this order, the courts would either have been able to direct that the time spent on remand should be deducted from the sentence, while retaining the power to add those days to the sentence ultimately imposed, or they could have relied on Section 240(4)(b), stating in open court as required by subsection (6)(b) that they were of the opinion that no such order should be made because the offender was already in prison for some other offence for the period of remand.

The only difficulty they might have had would be in cases where the remand extended beyond the period of the sentence, where the number of days the offender remained in custody after the expiry of the other sentence would still need to be deducted from the sentence now being passed. Without these rules, the courts had only two options. Either they could direct that the whole time spent on remand in custody should be counted against the sentence under the powers in subsection (3), or they could refrain from giving a direction under the powers in subsection (4)(b). In the case where the offender was in prison serving another sentence for only part of the time that he was remanded in custody, the only option would be to give directions under subsection (3), remitting the whole of the time spent on remand, and to add the number of days that the offender was serving the previous sentence on to the new sentence.

I have already mentioned in passing another point to the noble Baroness, although we did not have time to finish our conversation. The order deals with cases where the accused is remanded in custody when he is already serving a sentence of imprisonment for another offence, but not when he is remanded in custody on another charge at the point at which the court has consider his disposal on the new offence, or when he is detained in connection with other matters. I presume that that in the main is for the purposes of immigration control.

In fact, Section 240(2) states explicitly that it is immaterial "for that purpose", which I take to mean for the purpose of the whole of Section 240, whether the offender has already been remanded in custody in connection with other offences. I am not too worried about this because it means that the offender will have those days on which he is concurrently remanded in custody for two completely separate offences knocked off the end of both sentences. According to the bar chart I drew for the noble Baroness just before we came into the Chamber, the days would have to be taken off the first sentence if he was being held in custody on remand concurrently on the two separate charges. As I say, it seems that that period would be knocked off the end of both sentences. However, I am not sure whether that is the intention of the order because it is not entirely logical to take that period off the end of both sentences, although I hope that we are not talking about a set of circumstances that arises very frequently.

Unfortunately, the order does not affect the extent of remands in custody, under which 58,700 people were imprisoned awaiting trial in 2003, even though half of them subsequently received a non-custodial sentence and 22 per cent were acquitted. According to the Prison Reform Trust, the average length of time spent behind bars on remand was 49 days for men and 37 for women, but some 250 individuals were held for over a year.

I hope that I am not out of order in saying this, as so frequently I am, but we should look at the experience of Scotland where a maximum period is set for a person to be held on remand. The average length of time is 24 days, less than half that in England and Wales. Scotland also has a procedure for tagging those accused of serious offences and making them subject to a movement restriction condition. Are not these matters on which the Home Office could learn from the Scottish experience? If it has worked there, we might be able to amend our own law accordingly.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice System and Law Reform), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I thank the noble Lord for his comments. At this stage I shall deal with his concerns as simply as possible and then write to him in detail, particularly if he would like to explore with me further the examples that we have discussed briefly so that the position can be clarified.

Essentially, the principle set out in the rules is that a day of shared remand time shall be counted only once. The effect of being sentenced for two offences committed at different times may be different if the sentences are consecutive or concurrent. In the example cited by the noble Lord it would not necessarily count in relation to both. It might count in relation to one dependent on concurrence, or consecutively. However, I can better deal with the detail of the point in written form because of the complexities of trying to track it through.

On the Act itself, noble Lords will know that guidance was issued to courts in April via a Home Office circular. Therefore the courts have already been adopting the principles set out in these rules and their implementation merely formalises in statute what is current practice.

I know that the noble Lord has commented on the maximum time spent on remand. However, although it is not set out formally in the rules, tagging can take place in relation to an adult offender, if the court believes that course as regards bail to be appropriate. There are many issues in this area that noble Lords are anxious to debate and I am sure that we will find time to do so, but perhaps not on this order. However, I am again happy to write to the noble Lord on this point.

On Question, Motion agreed to.