My Lords, I beg to move that the Bill be now further considered on Report.
My Lords, I shall speak also to Amendments Nos. 63 and 64. These amendments would simply leave out Clauses 21 to 23. My noble friend Lord Kingsland spoke to these briefly on one of the latter days in Committee back in February, at some relatively late time of night: I think that it was at 9.25, after dinner. He did not move them on that occasion, but he set out our case. The Minister assured the Committee at that time that the Government were, as he described it,
"on a roll at the moment".—[Hansard, 26/2/08; col. 642.]
I do not know whether they still are; they can tell us that later, but I can assure him that we will certainly want to divide on this in due course.
These clauses amend the 2003 Act to provide for creating a,
"period of remand on bail", on an electronically monitored curfew, and to take that against a subsequent sentence. Put very simply, we believe that this is loopy, and I suspect that most of the population would agree that it is mad. The Government are saying, briefly, that while someone is at home on an electronic curfew—as long as they are there for more than nine and a half hours, I think—and sitting or lying in bed there, perhaps watching "Match of the Day", or "I'm a Celebrity, Get Me Out of Here!", or possibly even a party political broadcast from the party opposite, that time shall be taken into account in any subsequent custodial sentence. As I say, that is loopy and most people would think it mad. It is not the right way to go about it.
We know exactly why the Government are doing this; to reduce artificially the number of people in prison. That is a perfectly laudable ambition—there is nothing wrong with the idea of trying to reduce that number—but we do not happen to think this is the right way to go about it. When he responded to this matter back on
Further, as my noble friend made quite clear, there is the possibility of perverse incentives, as in the position where defence solicitors could ask for a longer curfew period just to make sure that the custodial sentence was likely to be reduced because, as he put it, it covered more than the eight and a half hours, or whatever the limit was. We would have defence counsel arguing for a longer curfew period than he would otherwise think necessary purely to get time off for his client on a later occasion.
As I said the Minister thought that he and the Government were on a roll when they dealt with this issue last time. It might have been because we had just had one of those Divisions that sometimes happen late at night that the Government had managed to win. On this occasion, I will listen carefully to what the Government have to say but unless the Minister can come up with better answers than he did before I will be tempted to test the opinion of the House again. I beg to move.
My Lords, I am most grateful to the noble Lord, Lord Henley, for allowing us to discuss this matter again. I shall not tempt fate by describing why I said we were on a roll when we debated it last time. The noble Lord is right that the measure comes as a result of the review of prisons by the noble Lord, Lord Carter, and it is one of the steps that we would like to take to help manage demand for prison places. We have discussed prisons for some weeks now, and noble Lords will know of the challenge of the current demand for prison places. The Carter proposals are a mixture of an expansion of places over the next few years, together with what is described as demand management. Our proposal is one of those initiatives to reduce demand for prison places.
I confirm to the noble Lord that to qualify for the curfew credit, defendants must have been subject to an electronically monitored curfew for at least nine hours per day to reflect the position that being subject to a curfew does not equal a deprivation of liberty, whereas remand to custody clearly does. Each curfew day will provide potential credit against sentence of no more than half a day. The court will be required to take into account the defendant's compliance with the curfew when deciding the period to be credited. The credit will not be made on the basis that the defendants have been deprived of their liberty; they will be credited for the fact that they have complied with their bail conditions while having their liberty restricted on a preventive rather than punitive basis. The credit will be made on the basis that even though being under a curfew is less arduous than being remanded in custody, both are intended as a preventive measure designed to secure the judicial process rather than to punish the offender. The provisions will apply only to defendants bailed under the Bail Act, as amended by the Bill, who are subject to an electronically monitored curfew bail condition of at least nine hours per day.
I know that the noble Lord, Lord Henley, feels that this is a reward to watch "Match of the Day", but it is not. The curfew times and hours will be decided by the court, which will take into account the nature of the bail represented by the defendant. Of course, the curfew may be imposed for periods when the defendant is considered more likely to offend or to interfere with witnesses. Such periods might often be during the evening and into the early hours when defendants can get into trouble after a night out at the pub. That is why typical curfew hours tend to be overnight. The curfew can be tailored to cover other risks. For example, the court could curfew a football hooligan during match times or a shoplifter during peak shopping hours.
On the question of a perverse incentive, we believe that this is a sensible preventive measure that will provide an incentive to those remanded on bail who are subject to an electronically monitored curfew to comply with their conditions. Of course in relation to the perverse incentive that is where I would rely on the discretion of the sentencer to arrive at the right decision. Given all our debates on the question of the discretion of the judiciary, surely the noble Lord, Lord Henley, could rely on that.
My Lords, will the Minister say what he means by that? Subsection (2) of proposed new section 240A, states that,
"the court must direct that the credit period is to", be taken into account. Does that mean that the Minister has in mind that the judge might impose a longer sentence than otherwise to allow for a sufficient period in prison, in which case he would probably be breaching the sentencing rules?
My Lords, I am sure that is right. I thought the noble Lord, Lord Henley, was suggesting that, in certain circumstances, defence lawyers would request particular conditions because it would then lead to a certain time being taken off the defendant if subsequently convicted. I was answering that point.
My Lords, I would have more sympathy for the noble Lord's amendment if I knew what the Conservative Party proposes to do in order to reduce the present overcrowding in prisons. Everything that has so far been proposed by the Government to this end has been opposed by the Conservatives. It would be helpful if they could put something positive in its place. In the mean time, this seems to be moving in the right direction; therefore I oppose the amendment.
My Lords, the Minister cited, in support of his arguments, the Carter review of prisons, which he described as a mixture of expansion of places and a degree of what he described as "demand management." We have supported—or supported in part—the expansion of places; we certainly object to the idea of Titan prisons as part of that expansion. I would paraphrase "demand management" as letting out early slightly more people than they should, which is a mistake, and keeping people out who should possibly be in, which this is a measure of. It is not the right way to go about it. It is not right that someone who is, admittedly, confined to home, but having rather a comfortable time, should have that time taken into account if he receives a custodial sentence later on. No doubt, if he is a football hooligan, he is still able to watch television. That is why this particular case is the wrong way to go about it and why I intend to press this amendment and seek the opinion of the House.
Resolved in the negative, and amendment disagreed to accordingly.
Clause 22 [Credit for period of remand on bail: other cases]:
[Amendment No. 63 not moved.]
Clause 23 [Credit for period of remand on bail: transitional provisions]:
[Amendment No. 64 not moved.]
Clause 26 [Release of certain long-term prisoners under Criminal Justice Act 1991]:
moved Amendment No. 65:
Clause 26, page 18, line 8, at end insert—
"(1C) The reference in subsection (1B) to an offence specified in Schedule 15 to the Criminal Justice Act 2003 includes a reference to—
(a) an offence under section 70 of the Army Act 1955, section 70 of the Air Force Act 1955 or section 42 of the Naval Discipline Act 1957 as respects which the corresponding civil offence (within the meaning of the Act in question) is an offence specified in that Schedule, and(b) an offence under section 42 of the Armed Forces Act 2006 as respects which the corresponding offence under the law of England and Wales (within the meaning given by that section) is an offence specified in that Schedule.
(1D) Section 48 of the Armed Forces Act 2006 (attempts, conspiracy etc.) applies for the purposes of subsection (1C)(b) as if the reference in subsection (3)(b) of that section to any of the following provisions of that Act were a reference to subsection (1C)(b)."
My Lords, I shall speak also to Amendments Nos. 66A to 66H, 115G, 115H, 115L, 115M and 115N. These amendments are miscellaneous minor and technical amendments to the release and recall provisions in Clauses 26, 29 and 32 as well as Schedules 26 and 27. I am of course happy to provide details if required but I do not want to unnecessarily detain the House with what are, in effect, minor amendments. I beg to move.