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Queen’s Speech - Debate (5th Day)

Part of the debate – in the House of Lords at 4:26 pm on 21st October 2019.

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Photo of Lord Hope of Craighead Lord Hope of Craighead Judge 4:26 pm, 21st October 2019

My Lords, there is an air of unreality about this debate. I cannot recall debates on a Queen’s Speech being held in a state of such uncertainty. Nevertheless, there are two issues that the gracious Speech raises that concern me and that are worth commenting on, lest they go further. The first arises from this sentence:

“New sentencing laws will see that the most serious offenders spend longer in custody to reflect better the severity of their crimes”.

At first sight, it is hard to disagree with this—if there is something wrong, it needs to be made better—but the background briefing tells us that the main elements of the proposed sentencing Bill include changing the automatic release point from half way to the two-thirds point for adult offenders serving sentences of four years or more for serious violent or sexual offences.

I have to confess that I am in two minds about this. On the one hand, I dislike the system of automatic release before the full sentence has been served. As a former judge, I believe that sentences should mean what they say. When I entered practice some 55 years ago, the system was that offenders had to earn their release before the end of the sentence by satisfying the Parole Board, once they became eligible, that they should be released. That was the position under the Criminal Justice Act 1991, which provided that offenders had to be half way through the sentence before they were eligible. It was to relieve the pressure on prisons caused by a relentless rise in the number of prisoners that the system was changed from one of eligibility to one of automatic release. To move this system to the two-thirds point, closer to what the judge was saying, has some attraction, but I have concerns.

The gracious Speech goes on to say that the Government,

“will work to improve safety and security in prisons and to strengthen the rehabilitation of offenders”.

To move the release point to two-thirds will mean an increase in the prison population, according to the Government’s own estimate, by about 3,000. It is no secret that England and Wales already have more people in custody that any other western European nation, and it is well known that many of our prisons are overcrowded. This has consequences. As the Royal College of Psychiatrists pointed out in its briefing note, prisoners are dying at an unprecedented rate from suicide and physical ill-health, and mental health teams are finding it difficult to access prisoners who need help. How, it asked, are prisoners supposed to be treated and rehabilitated and enabled to prepare themselves if they are required to spend longer in these conditions?

The longer prisoners spend in custody, the more they become institutionalised and the more difficult it becomes for them to face up to what will happen if and when they are released. During one of my many visits to prisons when I was Chief Justice in Scotland, I met prisoners who had long since forgotten how to use a knife and fork when eating their meals, and for mental health reasons they found it very hard to sit at a table with other people at mealtimes. Rehabilitation matters, and overcrowding is an obstacle to progress. I hope that the Minister will explain how increasing the prison population to such an extent can be reconciled with the aim, which of course I support, of strengthening the rehabilitation of offenders.

I have time to mention one other concern. The gracious Speech says:

“Laws will be introduced to ensure that the parole system recognises the pain to victims and their families caused by offenders refusing to disclose information relating to their crimes”.

But this is already the established practice. We are told that making this a legal obligation will reassure victims, but I dislike the rigidity of a statutory obligation. Judges know all about this when they are faced with rigid rules which have been fixed by statute when it comes to the matter of sentencing.

One has to bear in mind too that under the established practice of the Parole Board, very occasionally mistakes are made. For example, Victor Nealon, having been convicted of rape, spent 17 years in custody beyond his tariff release date because he refused to admit his guilt. He was eventually released when DNA evidence showed that he could not have committed the crime. For him, his repeated appearances before the Parole Board were a prolonged nightmare.

There may be a variety of reasons why a prisoner does not disclose information, some of which he cannot control. I fear that a legal obligation may increase the number of mistakes, especially if the measure extends to any failure, as the noble and learned Lord, Lord Keen of Elie, said in his opening speech. I would much rather leave this to the discretion of the Parole Board, with all the sensitivity that it can bring to bear, unless it can be clearly demonstrated that there is a real need for this change. I would be grateful if the Minister could explain what the need really is for this to be a statutory obligation rather than for it to be left to established practice.