Report (3rd Day) (Continued)

Coroners and Justice Bill – in the House of Lords at 8:50 pm on 28th October 2009.

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Clause 119 : Promoting awareness

Amendment 89A

Moved by Lord Thomas of Gresford

89A: Clause 119, page 72, line 36, leave out "may" and insert "must inform, consult and engage with the public on penal issues and must"

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General 8:55 pm, 28th October 2009

My Lords, this amendment stands in my name and in the name of my noble friend Lady Linklater. It concerns the role of the sentencing council in relation to promoting awareness of matters relating to the sentencing of offenders by courts in England and Wales, in particular the sentences imposed, the cost of different sentences and their relative effectiveness in preventing reoffending, and the operation and effect of guidelines.

This clause is of the greatest possible importance to that very important function of the sentencing council: communicating to the outside world what exactly it is doing, how and why. It is important not only because it involves disseminating fractured information—that matter is dealt with in subsection (1) and the council will be expected to publish such information—but because it is concerned also with "awareness", a word which implies a greater understanding of what the courts are doing. It is the very stuff of what we need to know and its proper communication—the very stuff which is missing at the moment. It is about how the public can come to understand what sentencing is about and what it achieves. Therefore, it is inevitably to do with engaging with the public if they are meaningfully to be made aware. It is all too easy to publish papers of facts and figures about its activities, but we all know what tends to happen to that sort of information: it remains on a shelf, unread by all but a few devotees, while the rest of us are none the wiser. The amendment would open the door to the possibility of closing the gap in public understanding and, even more importantly, addressing that lack of trust in the sentencing process. How can anyone have confidence in something that is not properly understood?

In Committee, the noble Lord, Lord Tunnicliffe, argued for the Government that, because awareness was a more abstract concept, it was,

"less appropriate to tie an independent body to such a statutory duty".—[Hansard, 15/7/09; col. 1248.]

That in a way is an extraordinary argument, for what is the point of publishing information or promoting awareness at all if it is not allied to understanding? The noble Lord was further worried that to explain to the public or make them aware of what the sentencing council does in relation to penal policy would mean straying into political territory. Again, I would suggest, that is an imaginary fear, given that it is generally agreed that to describe and explain the roles and duties of the council objectively, it is necessary for public understanding of and trust in our criminal justice system. Politics or preference, as the noble Lord suggested, does not come into it.

Awareness-raising is a function performed by other guidelines councils, notably in Victoria in Australia, and of course what our magistrates do regularly all over the country when they run their local crime community sentence programmes, involving magistrates in the Probation Service, which my noble friend Lady Linklater described in Committee. There is also an exercise run by the judiciary, called "You Be The Judge", which is another way of communicating how the system works and sentences are arrived at. However, those exercises happen rarely because they are quite time-consuming and expensive. Therefore, sentencers are no strangers to creating awareness. However, it is important that it should be acknowledged as such and the sentencing council should have a duty to promote it. It is also worth considering how deterrence, one of the recognised objectives of sentencing, can possibly be meaningful or effective if no one knows what it is actually about. An offender cannot be deterred by something that he is not aware of.

At present, the British public not only lacks trust in our system but, unsurprisingly, is very ignorant of the realities. Some recently published figures from the British Crime Survey show that 75 per cent of the British public think that British courts are too lenient. Yet when asked what percentage of men convicted of rape should go to prison, two-thirds of the public said that it should be less than 80 per cent, whereas in 2007 it was 97 per cent of that group. When asked about death caused by drunk driving, 41 per cent thought that the perpetrator should go to prison, when in fact 96 per cent of those found guilty of the offence were sent to prison. It is a commonplace experience for those of us involved in the criminal law to put to friends or guests the scenario of a recent case and ask them what sentence they would pass; inevitably, it is far more lenient than the actual sentence imposed by the judge. So the public have a distorted view of sentencing. Judges are in fact more punitive than the public imagine them to be and more punitive than the public themselves.

Since it is widely accepted that there is little public confidence in sentencing, what body could be better placed to rectify the situation as the source of guidance than an independent body consisting of experts, whose experience as judges and other related fields are more likely to promote greater understanding and confidence than politicians would in a month of Sundays? To say, as the noble Lord, Lord Tunnicliffe, did in Committee, that it would be inappropriate and impossible to deliver is seriously to minimise the quality and distinction of the sentencing council membership and its abilities to describe its role in a professional, clear, unbiased and understandable way, thus generating greater awareness in the public at large. Your Lordships will recall that this afternoon my noble friend Lady Linklater suggested that the council should have on it someone with experience of the media to be able to advise the council how to promote greater understanding. It should be a duty, because it has such potential significance and should not be downplayed, in the context of the range of activities that the sentencing council will be expected to undertake. If we lose this opportunity now, the moment will pass and it will be a long time before we can look again at that confidence in and understanding of sentencing, which is born of awareness. That is the purpose behind this amendment. I beg to move.

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Shadow Minister, Business, Shadow Minister (Business, Innovation and Skills)

My Lords, the noble Lord's amendment would place a duty on the sentencing council to

"inform, consult and engage with the public on penal issues", rather than, as the Bill currently stands, operate with discretion to promote awareness of sentencing. The noble Lord has justified the amendment with his customary skill and imagination, fortified by some very interesting statistics. In Committee, the noble Baroness, Lady Linklater of Butterstone, suggested holding "Any Questions"-style meetings across the country to help to promote understanding of the judicial system. All those ideas have an attraction, certainly, but we must not forget that the primary purpose of the sentencing council is to set guidelines for sentencing, and, as such, has as its members several members of the judiciary. We are concerned that, if there was a statutory duty on the council to engage with the public, that might risk involving its members with campaigning, which might well not sit with the independence of the judiciary.

We note, too, that under Clause 119(1) the council must publish data but under subsection (2) it "may promote awareness". That distinction is important. There is a duty to publish information about sentencing and once that information is in the public realm it is there for everyone to make use of as they think fit. However, while that duty is correct and easy to judge if it has been met, it is considerably more difficult to place a duty on the council to promote awareness. For example, by what standard will we decide if the council has met its obligations? We commend the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Linklater of Butterstone, for raising the issue of public awareness of sentencing matters, but in this instance we do not think that they should press the amendment to a vote.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, we agree almost entirely with what the noble Lord, Lord Hunt, said on this issue. Amendment 89A changes the requirement on the council to promote awareness of sentencing issues. It does this first by adding a new duty on the council to,

"inform, consult and engage with the public on penal issues", and secondly by requiring that the council "must" promote sentencing rather than the current "may" do so.

On the first point, the amendment would require the council to engage with the public on penal issues. That would be a completely new role for the council. Without better particulars, we wonder what that new duty entails because "penal issues" is a wide term. The ordinary meaning of the words would suggest anything relating to the punishment of offenders. Could it mean that the council must consult for example on the nature of prison regimes, the security of prisons or on the provision of education and healthcare? Those are all penal policy issues and all worthy and important, but they do not in themselves relate to sentencing and they should not in our view be within the remit of a sentencing council. It would be inadvisable to place a mandatory duty on the council to consult on something which is so potentially wide ranging.

The second part of this amendment relates to the promotion of awareness of sentencing. It remains the Government's view that an independent body such as the council should promote awareness, but we are also of the view that it would be ill-advised to place a statutory duty for such a task. At the risk of incurring the wrath of the noble Lord, as my noble friend Lord Tunnicliffe managed to do, "promotion of awareness" is a much more abstract concept than the publication of statistics and is not one that fits with such an absolute duty. We think it advisable, given the nature of the task, to give the council some discretion about how it promotes awareness.

However, I want to make it absolutely clear that by not supporting Amendment 89A in full we are not trying to discourage the council from promoting awareness of sentencing. I am happy to state on the record that the Government fully expect the council to undertake this task. We will encourage it to do so. We will expect it to report on how it has done so and we expect it to be scrutinised on how well it has performed. In the light of that, I hope that the noble Lord will consider withdrawing his amendment.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General

My Lords, I am most grateful for that reply. I take issue with the noble Lord, Lord Hunt, about the involvement of judges in campaigning. That is not the issue. The point is that judges need to have contact with public opinion. How do they do that? They would get a very distorted view if they did that through reading newspapers. Or do they do that through the sort of exercises that my noble friend Lady Linklater has been carrying out all over Britain on behalf of the Esmée Fairbairn trust? I know that your Lordships are aware of the trust's work and the reports that it has produced, in which the judiciary are exposed to the way that prisons work, the way that the public are thinking and so forth.

We cannot lose sight of the fact that there is no God-given tariff for prison sentences. They must reflect the confidence of the community and what the community expects. The public need to be informed of what the council is saying, but the council also needs to engage with the public to find reactions. It is a question of two-way communication. That, I am sure, is what lies behind the amendment in my name and that of the noble Baroness. However, I can see that at this time there is no point in dividing the House. I beg leave to withdraw the amendment.

Amendment 89A withdrawn.

Clause 120 : Resources: effect of sentencing practice

Amendment 89B had been withdrawn from the Marshalled List.

Amendment 89BA

Moved by Lord Thomas of Gresford

89BA: Clause 120, page 73, line 6, leave out "demand for" and insert "resources required for the provision of"

Amendment 89BA agreed.

Clause 122 : Duty to assess impact of policy and legislative proposals

Amendment 89C had been withdrawn from the Marshalled List.

Amendment 89D

Moved by Lord Thomas of Gresford

89D: Clause 122, page 73, line 40, leave out "demand for" and insert "resources required for the provision of"

Amendment 89D agreed.

Amendment 90

Moved by Lord Goodhart

90: After Clause 127, insert the following new Clause—

"Imprisonment and detention for public protection

(1) Sentences of imprisonment or detention for public protection under section 225 or 226 of the Criminal Justice Act 2003 (c. 44) (indeterminate sentences) shall not be imposed after the date on which this Act is passed.

(2) Indeterminate sentences imposed on any person before that date shall be treated as having expired on whichever is the later of—

(a) three months after that date; or

(b) the end of the maximum term of imprisonment or detention which could have been imposed on that person in the absence of a power to impose indeterminate sentences.

(3) Subsection (2) does not alter the notional minimal term (as defined in section 225 or 226 of the Criminal Justice Act 2003) of an indeterminate sentence."

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

My Lords, the purpose of this amendment is to abolish indeterminate sentences, known as IPPs or DPPs. IPPs are indeterminate sentences which are imposed on adult criminals; DPPs are sentences imposed on the under-18s. They are very similar in their operation, and I will use IPP as a description to cover both of them. I am delighted to have the support of the noble Lord, Lord Ramsbotham, who is, of course, an iconic figure in your Lordships' House.

IPPs were created by the Criminal Justice Act 2003. They can be imposed for offences which carry a maximum sentence of at least 10 years but do not provide for life sentences. Ninety-five offences fall into this category. IPPs can be imposed if the criminal has a previous conviction for any one of 153 listed offences. Any such previous conviction creates a presumption that the criminal presents a serious risk of causing future harm to members of the public. Unless that presumption can be rebutted, the criminal who has been convicted of any one of the 95 trigger offences will get an IPP sentence. The sentence will contain a minimum term or tariff. That tariff is the minimum term which the judge hearing the case would have imposed in the absence of IPPs. There is no maximum sentence for an IPP. The statutory upper limit of the sentence for that crime is ignored. For all practical purposes, the IPP is a life sentence, and nothing else. Prisoners' release requires them not only to have served the tariff in prison, but to have satisfied a panel of the Parole Board that they have reduced the risk that they present to the public.

I did not practise in the criminal field when I was at the Bar, but I became aware of the defects of IPPs when I read a report published a year ago by the Chief Inspector of Prisons and the Chief Inspector of Probation. The report is absolutely devastating. It concludes that the courts do not receive accurate pre-sentence reports on the risk of harm when considering whether to impose an IPP and many assessments of risk are, as a consequence, too high. The report concluded that the Parole Board system which determines IPP releases is severely underresourced and, as a result, IPP prisoners languish for months and sometimes years in local prisons because they cannot get the training that they need before they can apply for release. The introduction to the report says:

"Prisoners and staff became increasingly frustrated with their Kafka-esque predicament, unable to access the interventions they needed in order to secure release".

That is the comment of two people who know more about IPPs than anybody else.

There has been some improvement as a result of amendments made in 2008 to the Criminal Justice Act 2003. The amendments exclude from IPPs cases where the tariff would have been for less than two years. In spite of that, the number of IPP prisoners continues to increase steadily. Since the 2003 Act came into force in 2005, more than 5,000 people have been sentenced to IPPs. They now represent about 6 per cent of the total prison population. In September of this year, 1,957 IPP prisoners who had passed the beginning of the minimum tariff date were still held in prison. The number of IPP prisoners who had been released by that time was only 76. That means that only one out of every 25 prisoners eligible for release has in fact been released. Many eligible prisoners have often failed to get release not because their applications have been rejected by a Parole Board panel, but because they have not been able to get access to the board. To make things worse, new Parole Board rules allow the board to refuse an oral hearing and to make decisions based only on paper.

The IPP is wrong in principle and wrong in practice. English courts have a long-standing system of sentencing. Under that system, only the most serious offences can be punished by life imprisonment. It is unnecessary and wrong to impose a de facto life sentence on convictions for an offence which does not carry the life sentence. The IPP is even more wrong in practice. It is wrong because many pre-sentence assessments are inadequate and lead to the imposition of IPPs on those who should not be subject to it. It is wrong because many IPP prisoners, especially in local prisons, have no access to training, without which they cannot get a hearing before a Parole Board panel. IPPs are wrong because the Parole Board is overstretched and underfunded, leading to long delays in hearings.

Putting those defects right would cost a large amount of money, which will plainly not be available in a time of financial crisis, but not correcting the defects in the system is also expensive, because IPP prisoners remain in prison after they should have been released.

I should explain how my amendment works. Of course, it stops the future imposition of any further indeterminate sentences. For those who have already received indeterminate sentences, it will not be practicable to reconsider in every case what would have been the appropriate sentence for those who are currently on IPPs. The amendment would bring an IPP to an end if the prisoner has not been released at the end of the maximum term for which the sentence could have been imposed in the absence of indeterminate sentences. As the maximum term cannot be less than 10 years, there would be few, if any, immediate releases as a result of the amendment becoming law. However, the IPP prisoners would then have a definite date for the end of their sentence. That would be helpful, because indeterminate sentences damage the mental condition of prisoners. Many believe that they will never get out and lose the incentive to do so.

I am aware of the understandable public concern about the successful appeal of the prisoner in the Baby P case against an indeterminate sentence, but I do not believe that that presents any relevance to the amendment.

IPP is a failure. Worse, it is an expensive failure. It keeps people in prison who should have been released. It involves spending money on court hearings and on the work of the Parole Board and the Probation Service. The obvious remedy would be to get rid of the IPP and get rid of what have been described as its Kafka-esque consequences, and the sooner the better. I beg to move.

Photo of Lord Ramsbotham Lord Ramsbotham Crossbench 9:15 pm, 28th October 2009

My Lords, I put my name to the amendment because ever since indeterminate sentences were proposed in the 2003 Act, I have been very concerned about their practical impact. At the time, many people forecast that they would be a severe impediment on the ability of the Prison Service to deal effectively with prisoners—not just the IPP prisoners, but other prisoners who would be likely to have the limited resources to tackle their own reoffending problems denied to them.

What was unfortunate about the introduction of the IPP was that it went ahead without proper impact assessments by the Home Office, which failed totally to look at the impact not just on the Prison Service but on the probation service. Both must be considered in the future. Only yesterday, I was visited by 11 people from the probation service, including nine who were about to qualify from the latest officers' course. They told me that, given the number of cases that they had to deal with and the cuts being imposed on them, the demands on them were such that when starting a case they simply did not have the time to complete the pre-sentence reports which the noble Lord, Lord Goodhart, mentioned as being one of problems. With the best will in the world, they cannot offer sufficient time to complete the reports, given the number of cases that they have to look at.

I have often said two things in this House about the context in which these sentences are being considered. First, it is extraordinary that no one knows the cost of imprisonment. That is not to say it is not known how much money has been given to the Prison Service by the Treasury and how much is distributed to each prison. However, it is not known how much it would cost to do all the things with and for prisoners that the Government say need to be done, including all the activities so ably described by the noble Lord in connection with indeterminate sentences. Are there assessments? How much do they cost? How much do the programmes that have to be carried out cost? Furthermore, how much does it cost to keep someone in prison for the additional period beyond the tariff that might otherwise have been imposed? Bearing in mind the figures that the noble Lord, Lord Goodhart, produced—that only 76 such prisoners have so far been released—and given the numbers who have gone into prison, this is a recurring expense to the Prison Service which adds financial and overcrowding problems to those that already exist. In my book they are avoidable.

Secondly, the place of prisons in the criminal justice system is analogous to that of hospitals in the health service. They are the acute part of the system where treatment takes place, and you should go there only if you need the treatment that only hospital or prison can give. You must go there conscious that it will never be complete in either—it will have to be continued by aftercare in the community. The moment that the work that only prison or hospital can do has been completed, the patient or prisoner should be removed as quickly as possible from that expensive acute environment into somewhere where that work can be carried out. If you are being sensible, particularly in times of recession, that will be where it is cheaper, as well as just as effective.

The problem with this sentence is that because it was improperly proposed, improperly conducted, improperly impact-assessed and improperly introduced, it has built up problems which are getting almost beyond control. Indeterminate sentences are swamping some of the prisons and removing resources which should be made available to other prisoners, and therefore are having an undue impact on the ability of the Prison Service to protect the public by preventing offending.

I suspect that this amendment may not meet the Minister's immediate approval, but he and his successors must in all conscience examine the impact of the indeterminate sentence on the prison system for which they are responsible, otherwise they will be conniving at its ruin.

Photo of Lord Carlile of Berriew Lord Carlile of Berriew Spokesperson for Health

My Lords, I declare an interest as the president of the Howard League for Penal Reform. I support the amendment. I do not think that I can improve on the eloquent way in which it has been proposed by my noble friend Lord Goodhart and supported by the noble Lord, Lord Ramsbotham. The Howard League has identified all the reasons that have already been given, so perhaps I can simply add this. IPPs are causing all the difficulties in the Prison Service described by the noble Lord, Lord Ramsbotham, so the Prison Service does not like them. Judges do not like IPPs because what they have to say in sentencing is at best misleading and at worst fictitious. Defence lawyers do not like IPPs because they cannot give realistic advice on pleas to their clients. Defendants are pleading not guilty on the off-chance that they might avoid an IPP, thereby lengthening hearings and clogging up the criminal justice system. Everybody involved in the criminal justice system who has touched this method of sentencing knows that it is not working. It is overdue for reform for the reasons already given.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative

My Lords, I feel confident that, in the preparatory work for this amendment, the Minister will have been told the latest figure of those who have completed their tariff and yet have been unable to get through what you might call the anteroom—the need to acquire a certificate as to their lack of risk to the public, which is to be provided by the probation service. What is the total now waiting for that administrative exercise to be completed? It is an absolute scandal that anyone who has reached their tariff should for that reason be unable to proceed through to release.

Photo of Lord Hylton Lord Hylton Crossbench

My Lords, I support the amendment on grounds of certainty, rehabilitation and resettlement.

Photo of Lord Hunt of Wirral Lord Hunt of Wirral Shadow Minister, Business, Shadow Minister (Business, Innovation and Skills)

My Lords, the noble Lords, Lord Goodhart and Lord Ramsbotham, have done us a great service by raising this issue. The noble Lords, Lord Carlile of Berriew and Lord Hylton, and my noble and learned friend Lord Mayhew have reinforced the concern that exists that we are dealing with a very serious situation.

The noble Lord, Lord Goodhart, gave a pretty scathing assessment of the Government's record on the administration of sentences for public protection, which everyone is now referring to as IPPs. The purpose of these sentences is to set a minimum tariff for dangerous or violent offenders—the punitive part of the sentence—and an indeterminate part, whereby the prisoner must satisfy the Parole Board that he no longer poses a risk to the public before he is released. As the noble Lord, Lord Ramsbotham, pointed out, the Government are well aware of the problems that are now present in the prison system. He may well be right that there should have been a much greater impact assessment.

Perhaps the Minister will answer directly the questions posed by the noble Lords, Lord Ramsbotham and Lord Goodhart. The noble Lord, Lord Ramsbotham, with all his experience, posed the greatest question: how much will it cost to do the things that need to be done? There are too many people with IPPs for the inadequate efforts that have been made so far to deal with them. I understand that there are rehabilitation courses that are just too full for anyone to get on them, so that many prisoners have gone past their minimum tariff but have, because of administrative incompetence, been unable to show the Parole Board that they have made sufficient progress to justify their release. It is scandalous that this has been allowed to happen, as my noble and learned friend Lord Mayhew of Twysden has pointed out.

I concede that the noble Lord, Lord Goodhart, is right to decry the injustice of IPPs. That injustice can be laid largely at the door of the Government, who simply lack the will and imagination to cope with a burgeoning prison crisis. We estimate that by 2012 there could be at least 10,000 prisoners serving IPPs. Combined with those serving mandatory and discretionary life sentences, that could add up to 20 per cent of the prison population awaiting their turn before the Parole Board.

The Government have many questions to answer, and should take the opportunity of this debate to make a start. Overcrowding in prisons is a menace. The prison estate is currently running at 112 per cent of its intended capacity. Some prisons—for example, Shrewsbury and Leicester—are running at 150 per cent of capacity. At these levels, prisons are just containing prisoners, nothing more. The problem, which runs much wider than IPPs, is an acute failure to rehabilitate prisoners. The average reading age of prisoners is appallingly low; and without improving that, prisoners have few prospects of employment after they leave prison, which in turn raises recidivism rates and feeds the growing prisoner population.

The Government have an opportunity tonight to show that they are not running out of ideas. However, their failings are pushing prisons to bursting point. The dreadful administration of IPPs is just one aspect of that failing. However, it need not be the case. Our position is clear. We are in favour of maintaining IPPs, but they have to be fair and just for prisoners, for the staff of the prison estate and, above all, for the public. The Government are not managing to keep up on any of these fronts. They must rethink their approach to rehabilitation of prisoners. Without that, prisoners have no hope of changing, and convincing the Parole Board that it is safe to release them. That is the real problem with IPPs.

I acknowledge the force of the arguments of the noble Lord, Lord Goodhart. However, we on these Benches have reached a different conclusion. Merely abandoning IPPs would not be satisfactory, as it would mean more violent and sexual offenders being released automatically at the halfway point of their sentences, regardless of risk. We must not forget that, properly administered, the IPP is a tailored sentence. Each prisoner is assessed for the risk that he poses before he is granted release. It is not satisfactory just to get rid of IPPs and leave it at that. We need a fundamental reform of sentencing. If there is to be a Conservative Government—which I strongly believe there will be—I hope that that Government will deliver fundamental reform by introducing honest sentences that spell out minimum and maximum terms.

I hope that I have explained why I do not support the amendment of the noble Lord. However, the Government should not take that as an indication that we think that all is well. It is not—and if they do not act, we will.

Photo of Lord Tunnicliffe Lord Tunnicliffe Government Whip, Government Whip 9:30 pm, 28th October 2009

My Lords, we return to the issue of indeterminate sentences for public protection, which the amendment seeks to abolish. The Government introduced these public protection sentences in the Criminal Justice Act 2003. They apply to offences committed on or after 5 April 2005 and are designed to deal with dangerous offenders who have committed serious violent or sexual offences. Once such offenders have served their minimum term, they remain in prison unless and until the Parole Board determines that they can be released safely, under supervision, into the community. It must surely be right that we should limit the release of dangerous offenders in this way. Public protection must be paramount, and I am pleased that, at least on this basic issue, the Benches opposite agree with us. I believe, and we contend, that IPPs are right in principle, but the amendment provides for the automatic release of dangerous offenders with no account taken of the risk that they might still pose to the public.

Turning to the issue of practice, the Government have acknowledged that there have been some difficulties in the management of IPP prisoners who have received short tariffs. We have responded by taking measures in the Criminal Justice and Immigration Act 2008 to focus these sentences on offenders from whom the public need most protection. We have also put in place much improved systems, backed up with additional resources, to ensure that offenders are enabled to demonstrate their reduced risk to the Parole Board and thus show that they are suitable for release. Those changes have improved the regime now, as they will for the future, and the number of IPPs passed has reduced significantly since the 2008 Act came into force.

However, we also need to assist the position for those already sentenced. That is why the Prison Service has put in place better arrangements. Almost all post-tariff IPP prisoners now have sentence plans, and efforts are being made to increase the provision of courses to IPPs. We won the Court of Appeal challenge that detention post-tariff was unlawful and that prisoners in this position should be released. The House of Lords confirmed that judgment. It made it clear that there is no duty on the Secretary of State to provide particular courses to prisoners, although he needs to ensure that reports are provided to enable the Parole Board to make decisions on the basis of risk. At the moment, a little over 5,600 people are serving IPPs, 2,130 of them post-tariff, and approximately 60 per cent of IPP prisoners have at least one programme.

Clauses 128 and 129 provide for public protection sentences to be made available for a wider range of terrorist-related offences. They insert certain terrorist offences into Schedule 15 to the Criminal Justice Act 2003, which lists specified violent or sexual offences that may attract a sentence of imprisonment for public protection or an extended sentence. All these terrorist-related offences are appropriate for inclusion in the schedule, as they demonstrate a sufficiently direct risk of harm in that they relate to the planning and/or commission of violent crimes and carry maximum custodial sentences of 10 years or more. As I have emphasised, public protection is paramount and it is important that we take the opportunity to update the schedule to keep pace with changes in public risk.

I have sought to answer the point made by the noble and learned Lord, Lord Mayhew, concerning numbers. If we can be in any way more accurate or illustrative on that, I shall write to him. However, we have not been able to address the issues of cost. We will look at whether something useful can be said on that and, if so, will write to noble Lords. Therefore, I ask the noble Lord to withdraw his amendment.

Photo of Lord Goodhart Lord Goodhart Liberal Democrat

My Lords, I am grateful to all Members of your Lordships' House who spoke in support of the amendment. I do not agree with the noble Lord, Lord Hunt of Wirral, that IPPs should be retained but I absolutely agree with him that IPPs are only part of a wider problem of rehabilitation and that a thorough reform of the whole sentencing procedure is necessary.

I was seriously disappointed by the reaction of the noble Lord, Lord Tunnicliffe. Being in the view of a Parole Board panel a potentially dangerous offender is not a sufficient reason for imposing what is, in fact, a life sentence when the offence is one that does not itself bear a life sentence. It is all very well to say that the protection of the public is paramount, but if that were the case anybody who had committed a serious crime would simply be locked up permanently with no hope of release. The protection of the public is an important factor, but it is necessary to maintain a balance between treating somebody who has committed perhaps a serious crime with a total lack of support and simply locking them up for life and considering the interests of the public. Being a potentially dangerous offender in the parole board's view is not a sufficient reason for imposing a life sentence. That has to be borne in mind.

Had this debate taken place a couple of hours earlier, it was my intention to call a Division as it is an important matter which needs to be brought to the attention of the Government. We need to show our concern about the way in which this has been mishandled. It is now almost a quarter to 10, so it is not an occasion when it would be remotely appropriate to call for a Division. I appreciate that I cannot bring the matter back at Third Reading, so in these circumstances, it is with regret that I beg leave to withdraw the amendment.

Amendment 90 withdrawn.

Schedule 15 : Extension of disqualification for driving

Amendment 90A

Moved by Lord Tunnicliffe

90A: Schedule 15, page 157, line 23, at end insert—

"Criminal Justice (Northern Ireland) Order 1980 (S.I. 1980/704 (N.I. 6))

A1 After Article 8 of the Criminal Justice (Northern Ireland) Order 1980 insert—

"8A Extension of disqualification where custodial sentence also imposed

(1) This Article applies where a person is convicted of an offence for which the court—

(a) imposes a custodial sentence, and

(b) orders the person to be disqualified under Article 8 for holding or obtaining a driving licence or a provisional licence granted under Part 2 of the Road Traffic (Northern Ireland) Order 1981 (S.I. 1981/154 (N.I. 1)).

(2) The order under Article 8 must provide for the person to be disqualified for the appropriate extension period, in addition to the discretionary disqualification period.

(3) The discretionary disqualification period is the period for which, in the absence of this Article, the court would have disqualified the person under Article 8.

(4) The appropriate extension period is—

(a) where a court imposes a sentence under Article 45(2) of the Criminal Justice (Children) (Northern Ireland) Order 1998 (S.I. 1998/1504 (N.I. 9)) (punishment of grave crimes: indeterminate sentences), a period equal to the period specified in the sentence under Article 45(2) of that Order less any relevant discount;

(b) where an order under Article 5(1) of the Life Sentences (Northern Ireland) Order 2001 (S.I. 2001/2564 (N.I. 2)) (determination of tariffs) is made in relation to the custodial sentence, a period equal to the part of the sentence specified in that order less any relevant discount;

(c) where Article 8(1) of the Criminal Justice (Northern Ireland) Order 2008 (S.I. 2008/1216 (N.I. 1)) (sentence for a determinate term) applies in relation to the custodial sentence, a period equal to the custodial period specified pursuant to Article 8(2) of that Order less any relevant discount;

(d) where a court imposes a sentence under Article 13(3) of the Criminal Justice (Northern Ireland) Order 2008 (indeterminate custodial sentences for serious offences), a period equal to the period specified pursuant to Article 13(3)(b) of that Order less any relevant discount;

(e) where Article 14(3) of the Criminal Justice (Northern Ireland) Order 2008 (extended custodial sentences for certain offences where the offender is aged over 21) applies in relation to the custodial sentence, a period equal to half of the term imposed pursuant to Article 14(3)(a) of that Order calculated after that term has been reduced by any relevant discount;

(f) where Article 14(5) of the Criminal Justice (Northern Ireland) Order 2008 (extended custodial sentences for certain offences where the offender is aged under 21) applies in relation to the custodial sentence, a period equal to half of the term imposed pursuant to Article 14(5)(a) of that Order calculated after that term has been reduced by any relevant discount;

(g) in any other case, a period equal to half the custodial sentence imposed calculated after that sentence has been reduced by any relevant discount.

(5) If a period determined under paragraph (4) includes a fraction of a day, that period is to be rounded up to the nearest number of whole days.

(6) The "relevant discount" is the number of days by which the custodial sentence is treated as reduced by virtue of section 26(2) of the Treatment of Offenders Act (Northern Ireland) 1968 (c. 29) (periods in custody before sentence passed etc).

(7) This Article does not apply where—

(a) the custodial sentence was a suspended sentence, or

(b) the court has made an order under Article 5(3) of the Life Sentences (Northern Ireland) Order 2001 (life sentence: no early release) in relation to the custodial sentence.

(8) Paragraph (9) applies where an amending order provides that the proportion of a prisoner's sentence referred to in Article 18(2)(b) of the Criminal Justice (Northern Ireland) Order 2008 (duty to release prisoners serving extended custodial sentences) is to be read as a reference to another proportion ("the new proportion").

(9) The Secretary of State may by order provide that the proportion specified in paragraph (4)(e) and (f) of this Article is to be read, in the case of a custodial sentence to which the amending order applies, as a reference to the new proportion.

(10) An order under paragraph (9) is subject to annulment by a resolution of either House of Parliament in like manner as a statutory instrument and section 5 of the Statutory Instruments Act 1946 (instruments subject to annulment by resolution of either House of Parliament) applies accordingly.

(11) In this Article—

"amending order" means an order under Article 18(9) of the Criminal Justice (Northern Ireland) Order 2008 (alteration by order of relevant part of sentence);

"custodial sentence" has the meaning given by Article 4 of the Criminal Justice (Northern Ireland) Order 2008;

"suspended sentence" means a suspended sentence or order for detention under section 18 of the Treatment of Offenders Act (Northern Ireland) 1968.

8B Effect of custodial sentence in other cases

(1) This Article applies where a person is convicted of an offence for which a court proposes to order the person to be disqualified under Article 8 for holding or obtaining a driving licence or a provisional licence granted under Part 2 of the Road Traffic (Northern Ireland) Order 1981 (S.I. 1981/154 (N.I. 1)) and—

(a) the court proposes to impose on the person a custodial sentence (other than a suspended sentence) for another offence, or

(b) at the time of sentencing for the offence, a custodial sentence imposed on the person on an earlier occasion has not expired.

(2) In determining the period for which the person is to be disqualified under Article 8, the court must have regard to the consideration in paragraph (3) if and to the extent that it is appropriate to do so.

(3) The consideration is the diminished effect of disqualification as a distinct punishment if the person who is disqualified is also detained in pursuance of a custodial sentence.

(4) If the court proposes to order the person to be disqualified under Article 8 and to impose a custodial sentence for the same offence, the court may not in relation to that disqualification take that custodial sentence into account for the purposes of paragraph (2).

(5) In this Article "custodial sentence" and "suspended sentence" have the same meaning as in Article 8A.""

Photo of Lord Tunnicliffe Lord Tunnicliffe Government Whip, Government Whip

These amendments relate to powers to impose driving disqualifications and extend the principle that we have already established in Schedule 15 that time spent in prison should not erode the impact of disqualification. The provisions already contained in the Bill deal with those offenders when the court imposes both a driving disqualification and a custodial sentence for the same offence. These are likely to be serious road traffic offences for which it is imperative for public confidence that offenders feel the full impact of the ban.

These new amendments are intended to cover those cases when the court imposes a driving disqualification while at the same time the offender is being sentenced to imprisonment for another, unrelated offence, or is already serving a custodial sentence for another offence. Again, the intention is that the effect of disqualification should not be significantly undermined by the time spent in prison. The key amendments are Amendments 90C, 90G, 90K, 90M, 90P and 90R. Each of these amendments inserts similar provisions alongside the sentencing powers applicable to the courts in different parts of the United Kingdom to impose driving disqualifications.

When the court sentences an offender to a driving disqualification which will overlap to a greater or lesser extent with a current custodial sentence, the court must, in determining the period of disqualification it imposes, have regard to the fact that the effect of the disqualification will have a diminished effect as a distinct punishment during the time that the offender is also detained in prison. The court has to be mindful of that consideration if, and the extent to which, it is appropriate to do so. The more the two sentences overlap the greater the potential increase in duration of a driving ban which the court might impose.

This approach differs from the provisions when the court imposes disqualification and custodial sentence for the same offence. In those cases, the court will be required to add a distinctly calculated extension period to the ban. Because of the extent to which a driving ban and custodial sentences for different offences overlap may vary, these provisions give the court discretion as to the increase in disqualification that might be appropriate in each case. I hope that noble Lords will accept the amendment.

Amendment 90A agreed.

Amendments 90B to 90R

Moved by Lord Bach

90B: Schedule 15, page 158, line 38, at end insert—

"(4A) If a period determined under subsection (4) includes a fraction of a day, that period is to be rounded up to the nearest number of whole days."

90C: Schedule 15, page 159, line 30, at end insert—

"35AA Effect of custodial sentence in other cases

(1) This section applies where a person is convicted in England and Wales of an offence for which a court proposes to order the person to be disqualified under section 34 or 35 and—

(a) the court proposes to impose on the person a custodial sentence (other than a suspended sentence) for another offence, or

(b) at the time of sentencing for the offence, a custodial sentence imposed on the person on an earlier occasion has not expired.

(2) In determining the period for which the person is to be disqualified under section 34 or 35, the court must have regard to the consideration in subsection (3) if and to the extent that it is appropriate to do so.

(3) The consideration is the diminished effect of disqualification as a distinct punishment if the person who is disqualified is also detained in pursuance of a custodial sentence.

(4) If the court proposes to order the person to be disqualified under section 34 or 35 and to impose a custodial sentence for the same offence, the court may not in relation to that disqualification take that custodial sentence into account for the purposes of subsection (2).

(5) In this section "custodial sentence" and "suspended sentence" have the same meaning as in section 35A.""

90D: Schedule 15, page 159, line 31, leave out "35A" and insert "35AA"

90E: Schedule 15, page 160, line 7, at end insert—

"(4A) If a period determined under subsection (4) includes a fraction of a day, that period is to be rounded up to the nearest number of whole days."

90F: Schedule 15, page 160, line 39, leave out from "includes" to second "of" in line 40 and insert—

"—

(a) an order for detention in residential accommodation under section 44 of the 1995 Act, and

(b) a sentence of detention under section 205, 207 or 208"

90G: Schedule 15, page 160, line 40, at end insert—

"35C Effect of sentence of imprisonment in other cases: Scotland

(1) This section applies where a person is convicted in Scotland of an offence for which a court proposes to order the person to be disqualified under section 34 or 35 and—

(a) the court proposes to impose on the person a sentence of imprisonment for another offence, or

(b) at the time of sentencing for the offence, a sentence of imprisonment imposed on the person on an earlier occasion has not expired.

(2) In determining the period for which the person is to be disqualified under section 34 or 35, the court must have regard to the consideration in subsection (3) if and to the extent that it is appropriate to do so.

(3) The consideration is the diminished effect of disqualification as a distinct punishment if the person who is disqualified is also detained in pursuance of a sentence of imprisonment.

(4) If the court proposes to order the person to be disqualified under section 34 or 35 and to impose a sentence of imprisonment for the same offence, the court may not in relation to that disqualification take that sentence of imprisonment into account for the purposes of subsection (2).

(5) In this section "sentence of imprisonment" has the same meaning as in section 35B.""

90H: Schedule 15, page 161, line 18, at end insert—

"(4A) If a period determined under subsection (4) includes a fraction of a day, that period is to be rounded up to the nearest number of whole days."

90J: Schedule 15, page 162, line 1, leave out from "includes" to second "of" in line 2 and insert—

"—

(a) an order for detention in residential accommodation under section 44 of this Act, and

(b) a sentence of detention under section 205, 207 or 208"

90K: Schedule 15, page 162, line 2, at end insert—

"248E Effect of sentence of imprisonment in other cases

(1) This section applies where a person is convicted of an offence for which a court proposes to order the person to be disqualified under section 248 or 248A from holding or obtaining a driving licence and—

(a) the court proposes to impose on the person a sentence of imprisonment for another offence, or

(b) at the time of sentencing for the offence, a sentence of imprisonment imposed on the person on an earlier occasion has not expired.

(2) In determining the period for which the person is to be disqualified under section 248 or 248A, the court must have regard to the consideration in subsection (3) if and to the extent that it is appropriate to do so.

(3) The consideration is the diminished effect of disqualification as a distinct punishment if the person who is disqualified is also detained in pursuance of a sentence of imprisonment.

(4) If the court proposes to order the person to be disqualified under section 248 or 248A and to impose a sentence of imprisonment for the same offence, the court may not in relation to that disqualification take that sentence of imprisonment into account for the purposes of subsection (2).

(5) In this section "sentence of imprisonment" has the same meaning as in section 248D.""

90L: Schedule 15, page 163, line 6, at end insert—

"(4A) If a period determined under paragraph (4) includes a fraction of a day, that period is to be rounded up to the nearest number of whole days."

90M: Schedule 15, page 163, line 38, at end insert—

"40B Effect of custodial sentence in other cases

(1) This Article applies where a person is convicted of an offence for which a court proposes to order the person to be disqualified under Article 35 or 40 and—

(a) the court proposes to impose on the person a custodial sentence (other than a suspended sentence) for another offence, or

(b) at the time of sentencing for the offence, a custodial sentence imposed on the person on an earlier occasion has not expired.

(2) In determining the period for which the person is to be disqualified under Article 35 or 40, the court must have regard to the consideration in paragraph (3) if and to the extent that it is appropriate to do so.

(3) The consideration is the diminished effect of disqualification as a distinct punishment if the person who is disqualified is also detained in pursuance of a custodial sentence.

(4) If the court proposes to order the person to be disqualified under Article 35 or 40 and to impose a custodial sentence for the same offence, the court may not in relation to that disqualification take that custodial sentence into account for the purposes of paragraph (2).

(5) In this Article "custodial sentence" and "suspended sentence" have the same meaning as in Article 40A.""

90N: Schedule 15, page 164, line 46, at end insert—

"(4A) If a period determined under subsection (4) includes a fraction of a day, that period is to be rounded up to the nearest number of whole days."

90P: Schedule 15, page 165, line 34, at end insert—

"147B Effect of custodial sentence in other cases

(1) This section applies where a person is convicted of an offence for which a court proposes to order the person to be disqualified under section 146 or 147 for holding or obtaining a driving licence and—

(a) the court proposes to impose on the person a custodial sentence (other than a suspended sentence) for another offence, or

(b) at the time of sentencing for the offence, a custodial sentence imposed on the person on an earlier occasion has not expired.

(2) In determining the period for which the person is to be disqualified under section 146 or 147, the court must have regard to the consideration in subsection (3) if and to the extent that it is appropriate to do so.

(3) The consideration is the diminished effect of disqualification as a distinct punishment if the person who is disqualified is also detained in pursuance of a custodial sentence.

(4) If the court proposes to order the person to be disqualified under section 146 or 147 and to impose a custodial sentence for the same offence, the court may not in relation to that disqualification take that custodial sentence into account for the purposes of subsection (2).

(5) In this section "suspended sentence" has the same meaning as in section 147A.""

90Q: Schedule 15, page 166, line 39, at end insert—

"(4A) If a period determined under paragraph (4) includes a fraction of a day, that period is to be rounded up to the nearest number of whole days."

90R: Schedule 15, page 167, line 14, at end insert—

"91B Effect of custodial sentence in other cases

(1) This Article applies where a person is convicted of an offence for which a court proposes to order the person to be disqualified under Article 91 for holding or obtaining a driving licence and—

(a) the court proposes to impose on the person a custodial sentence (other than a suspended sentence) for another offence, or

(b) at the time of sentencing for the offence, a custodial sentence imposed on the person on an earlier occasion has not expired.

(2) In determining the period for which the person is to be disqualified under Article 91, the court must have regard to the consideration in paragraph (3) if and to the extent that it is appropriate to do so.

(3) The consideration is the diminished effect of disqualification as a distinct punishment if the person who is disqualified is also detained in pursuance of a custodial sentence.

(4) If the court proposes to order the person to be disqualified under Article 91 and to impose a custodial sentence for the same offence, the court may not in relation to that disqualification take that custodial sentence into account for the purposes of paragraph (2).

(5) In this Article "custodial sentence" and "suspended sentence" have the same meaning as in Article 91A.""

Amendments 90B to 90R agreed.

Clause 128 : Dangerous offenders: terrorism offences (England and Wales)

Amendment 91 not moved.

Clause 129 : Dangerous offenders: terrorism offences (Northern Ireland)

Amendment 92 not moved.

Schedule 16 : Treatment of convictions in other member States etc

Amendment 92A

Moved by Lord Thomas of Gresford

92A: Schedule 16, page 168, line 18, at end insert—

"( ) This section does not apply if the defendant can show that his or her conviction was imposed outside England and Wales and resulted from a trial that would have, if the trial had taken place in England and Wales, breached Article 6 of the Convention rights within the meaning of the Human Rights Act 1998 (c. 42)."

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General 9:45 pm, 28th October 2009

My Lords, the purpose of the amendments in this group is to insert in Schedule 16 the proviso that the section does not apply if the defendant can show that his or her conviction was imposed outside England and Wales and resulted from a trial that would have, if the trial had taken place in England and Wales, breached Article 6 of the convention rights within the meaning of the Human Rights Act. We are concerned about the quality of justice in certain countries. The purpose of these amendments is to ensure that the courts can take into account the fact that a trial was in breach of Article 6 of the convention rights. I beg to move.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, Schedule 16 implements the council framework decision of July last year on taking account of convictions in EU member states in the course of new criminal proceedings. Courts will be required to treat previous convictions of other member states in the same way as previous UK convictions. To a large extent, this merely sets out what can and does already happen. For example, overseas convictions can already be adduced as evidence of bad character or taken into account in sentencing decisions.

As I said in Committee, these amendments are obviously well intentioned but we do not think that they are necessary. The effect of the amendments as drafted would be that we would fail to comply with the provisions of the framework decision. This is because the amended legislation would oblige courts not to take into account other EU convictions to the extent that domestic convictions are taken into account since a separate assessment of whether to admit those EU convictions would be required beforehand.

Moreover, it would be an impracticable, if not impossible, task for the courts in every case. As drafted, the amendments would oblige courts to determine whether a conviction resulting from a trial in another jurisdiction would,

"if the trial had taken place in England and Wales", have breached Article 6. However, different rules of procedure and evidence apply between countries. For example, evidence admissible in some EU states would not be admissible in England and Wales, and it would often be difficult to predict accurately how such cases would have proceeded here, taking this into account, before any assessment of Article 6 compliance could be made.

All EU member states are subject to Article 6, which guarantees the right to a fair trial. The framework decision is predicated on compliance with the convention and states that it shall not have the effect of amending the obligation to respect fundamental rights. It will not be necessary for courts to consider the procedural proprieties of trials in other member states. Despite differences in national legal systems, convicted persons throughout the EU will have had recourse to the same framework of rights by which to challenge the previous conviction if it was procedurally unsound. We do not think it practicable or proper in implementing the provisions in the framework decision for our courts to be required to undertake a separate assessment of Article 6 compliance, and it would not be necessary because of the safeguards already in place.

As regards convictions from countries outside the EU, no provision in the schedule makes any material change in respect of non-EU convictions. The amendments proposed only clarify the existing law, which already applies to all convictions wherever obtained. Those clarifications concern the "bad character" provisions of the Criminal Justice Act 2003 and related Northern Ireland provisions. Under those provisions, it will, as now, be open to the defence to argue that a conviction is unfair by Article 6 standards. A court could continue to exclude evidence of a conviction that was shown to have resulted from an unfair trial. The court may, for example, exclude evidence under Section 101(3) of the Criminal Justice Act 2003 if such evidence would have a sufficiently adverse effect on the fairness of the proceedings; and, under Section 78 of the Police and Criminal Evidence Act 1984, the court may refuse to allow evidence to be given on which the prosecution proposes to rely if it appears to the court that, having regard to all the circumstances, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court should not admit it. I hope with that explanation that the noble Lord, Lord Thomas, will withdraw his amendment.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General

My Lords, your Lordships will recall that I spoke at considerable length in Committee on this issue, and I have attempted, having regard to the time, to limit what I said tonight. However, it is unfortunate that the amendments in the Bill ensure that convictions in an EU member state can be used to take into account evidence of the bad character of the defendant, to impose a presumption against bail, to consider whether a person should be tried summarily or indicted, and in sentencing. It is going a little far to say that the judges must automatically take at face value any conviction in any EU state, regardless of any arguments that may be advanced about the quality of the defendant's trial at the time. At this hour, however, I do not propose to divide the House. I beg leave to withdraw the amendment.

Amendment 92A withdrawn.

Amendments 92B to 92G not moved.

Amendments 93 to 95

Moved by Lord Bach

93: Schedule 16, page 173, line 27, leave out paragraph (b) and insert—

"(b) in paragraph (b)—

(i) after "service disciplinary proceedings" insert "(other than proceedings for a member State service offence)", and

(ii) for "that Act" substitute "the Armed Forces Act 2006", and"

94: Schedule 16, page 176, line 41, after "offence" insert "committed after the relevant date"

95: Schedule 16, page 177, line 6, at the end insert—

"( ) "relevant date" means—

(i) where the corresponding UK offence was a class A drug trafficking offence, the relevant date referred to in section 110(2A)(b), and

(ii) where the corresponding UK offence was a domestic burglary, the relevant date referred to in section 111(2A)(b)(ii);"

Amendments 93 to 95 agreed.

Clause 142 : Criminal Defence Service: enforcement of order to pay cost of representation

Amendment 95A not moved.

Consideration on Report adjourned.