Lord Russell of Liverpool:

Moved by Lord Russell of Liverpool

114: Clause 29, page 56, line 5, leave out “both” and insert “more”Member’s explanatory statementThis Amendment, linked to another in the name of Lord Russell of Liverpool, enables an additional condition to be added for consideration by the Secretary of State, when determining if an offender should not be released at the end of the section 255BA automatic release period.

My Lords, I will speak to Amendment 118 and the related Amendments 114 and 115 in my name. I thank the noble Baronesses, Lady May of Maidenhead and Lady Jones, and the noble Lord, Lord Polak, for adding their names to these amendments. I am concerned that the provisions in Part 2, which allow the automatic re-release of recalled offenders after 56 days, will put victims of domestic abuse at serious risk of harm if, as drafted, perpetrators of domestic abuse remain eligible for automatic re-release.

These amendments have the full support of Nicole Jacobs, the Domestic Abuse Commissioner. She stated her concerns directly to the Secretary of State, David Lammy, in a letter on 11 November.

For victims and survivors of crimes such as domestic abuse and stalking, their perpetrators know everything about them: where they live and work, where their children go to school, and all their regular routines. They remain fixated on their victims, and escalations in the risks they pose are consistently in relation to particular individuals. If we think about this provision from the perspective of a domestic abuse victim, they are already likely to have been subject to years of abuse before reaching the point where their perpetrator is convicted and sentenced.

SafeLives data indicates that victims experience, on average, three years of abuse before they access support. They begin to rebuild their life, and then their perpetrator is released from prison. The perpetrator begins to harass the victim over the phone, constantly calling and texting them and threatening to turn up at their house, and in light of this escalating risk, the perpetrator’s probation officer decides to recall them to prison. But after 56 days, the perpetrator is released, and the next day turns up at the victim’s front door, threatening violence against them. The perpetrator’s probation officer once again recalls them to prison, a mere 24 hours after their original release, and after 56 days they are once again released and once again turn up at the victim’s house—but this time they make their way inside.

It is critical that recall remains an option available to probation to ensure that perpetrators who continue to pose a risk are swiftly returned to prison to safeguard the victim in the short term. However, as I have just described, automatically releasing these offenders will create a cycle of ever-increasing risk for their victims.

The Government have rightly included mitigations, such as exclusions for offenders managed under MAPPA categories 2 and 3, as well as for offenders recalled because they have been charged with a further offence. However, these do not go far enough to safeguard victims of domestic abuse. Many domestic abuse perpetrators will not be managed under MAPPA. Research and evidence from services that support victims indicates that MAPPA is not being used nearly enough to manage domestic abuse offenders; nor would the exclusion of offenders charged with a further offence capture the Majority of domestic abuse perpetrators, even those who breach orders which carry a criminal sanction.

We can take as an example one of the most widely used protective orders for domestic abuse victims for which a breach is a criminal offence: a non-molestation order. In 2019-20, 32,075 non-molestation orders were issued, and in the same year, 11,900 breaches were recorded by police. Even of those recorded, only 35% of cases resulted in a charge. Of course, most of these orders in the official statistics will not be in relation to offenders on licence in the community. But if, overall, 65% of recorded breaches do not result in a charge, it is unlikely that most domestic abuse perpetrators being recalled to custody because they posed an increased risk to their victim would have been charged with a breach-related offence. On top of this, domestic abuse-related offences take longer to reach an outcome than non-domestic abuse-related ones. It is therefore unlikely that domestic abuse perpetrators who have committed a further offence will be charged in time for the further offence exclusion to take effect within the 56 days of fixed-term recall. So the cycle continues.

Our amendments seek to fill these gaps by ensuring that any offenders who are recalled on the basis of contact with their victim are not automatically released after 56 days, but rather are risk assessed and held in custody until their risk to the victim has reduced and can be safely managed in the community.

If we take the example of the victim I described earlier, under these amendments, rather than the perpetrator being released automatically after 56 days, instead, a holistic risk assessment process would first be completed, perhaps unearthing that the perpetrator had been trying to contact the victim from inside prison—which happens quite frequently. Deemed unsafe to release, the perpetrator would be held in custody, ideally with provisions put in place to disrupt their offending behaviour through a behaviour change programme delivered in prison. When the perpetrator is released, this would be done with a much higher degree of certainty that their risk to their victim has demonstrably reduced.

These amendments also address some of the concerns senior policing leaders and probation officials have raised about the knock-on impact of the Bill on resources within their crucial services by breaking the cycle of recall and holding serial perpetrators in custody until they can be safely managed in the community. Finally, they provide the Government with the opportunity to hold true to their commitment to halve violence against women and girls by ensuring that victims do not pay the price for the capacity crisis, while still managing pressure in prisons.

I look forward to the Minister’s response, and I hope that all of us involved in this look forward to working with the Government and colleagues across the House to ensure that the Bill’s reforms—which I think we all agree are desperately needed—do not bring undue harm to victims and survivors in the process. I beg to move.

My Lords, I will speak to Amendment 118, to which my noble friend Lady Jones of Moulsecoomb has attached her name.

I will start by referring to the basic intention of the Bill, which is to use our prison places more effectively and to focus custody on those who most need to be there—an aim that many support. We all want a system that is proportionate and effective and that reduces the pressure on the prison estate, but we cannot pursue those aims at the expense—whoops, I think I am speaking to the wrong amendment. Are we discussing Amendment 118?

Yes.

I thought so, but I got confused.

Amendment 118 responds to a serious problem: automatic release after 56 days of individuals who have been recalled specifically because they breached the licence condition relating to the victim of the original offence. In other words, they have shown, as the noble Lord, Lord Russell, said, that they are willing, even while on licence, to breach restrictions designed to keep that victim safe. This is a behaviour that may indicate continuing risk, which, under Bill as it stands, will not be assessed before release.

The victims, overwhelmingly women in these circumstances, must not be put in this potential danger. The amendment is essential to ensure that if there is a victim-related breach, the individual is not released automatically. If necessary, the case must go before a parole board—an expert independent body whose very purpose is to assess risk. The Government have been very clear through the Bill that their aim is to ensure that public safety remains paramount. This amendment seeks to deliver on that aim.

My Lords, I wish to speak to my Amendments 111 to 113. When asked by the Deputy Chairman, I said that I did not wish to do so, but that was because I did not realise that we had jumped an Amendment.

These three amendments concern recall for a fixed term. The first point is the question of whether recall should be for a maximum of 56 days rather than a fixed period of 56 days. As presently structured, recall to prison is to an automatic release date 56 days after the recall occurs. The purpose of my three amendments is both to make the 56-day period a maximum period, not a fixed period, and to make automatic release subject to the exclusion in those cases where it applies—and in that it has much sympathy with the amendment moved by the noble Baroness, Lady Bennett, on behalf of the noble Baroness, Lady Jones of Moulsecoomb. The process for determining the period will need to be fixed by regulations, but the intention is clear, and I am happy to discuss how substituting a flexible period for a fixed period might be implemented.

The fact is that recalls happen for a number of reasons, some of which may be relatively trivial breaches of conditions. I am concerned—as was my Honourable Friend Jess Brown-Fuller, the MP for Chichester, who moved similar amendments in the other place—about the effect of a blanket fixed period of recall irrespective of the seriousness or otherwise of the breach that brought about the recall, and believe it may be inappropriate.

It may be that 56 days or eight weeks, which is quite a long time, is far too long for a prisoner who faces recall for missing a probation appointment, for example. It would almost inevitably interfere with work where an offender had found work. It could interfere with housing and educational or rehabilitative programmes in the community. Community programmes are, I understand, typically held open for four weeks, so eight weeks would mean that they were closed. An eight-week recall might have a damaging effect on mental health treatments which a recently released prisoner was undertaking. Addiction programmes might be undesirably affected. A shorter recall might avoid that.

Furthermore, an unnecessarily long recall for a minor infringement of conditions would do nothing to reduce the prison capacity shortage as it continues, while a shorter recall would mitigate it. Other recalls may be much more serious. In such cases, 56 days may be too short a period. The 56-day automatic release provision in our Amendment 113 would take effect subject to the provision excluding automatic releases in serious cases, so that those who had committed more serious offences would not be automatically released at the 56-day point. That might be particularly appropriate if an offender who had been guilty of domestic abuse or stalking had been recalled for intimidating, harassing or stalking their victims. While they would presently be required to be released under the proposals as I understand them, our amendment would rectify this.

My Lords, the Amendment in the name of the noble Lord, Lord Russell of Liverpool, would make the cause of an offender’s recall a necessary consideration when determining whether the offender should be released at the end of the automatic release period. This is a prudent approach. We do not want people with a record of breaking probation conditions given the chance to do so again after just 56 days. We therefore support the aim of the noble Lord’s amendment.

I thank noble Lords for these amendments and for providing me with the opportunity to clarify the Government’s position on recall reforms. The policy in this Bill is designed to support rehabilitation and reduce the need for future recalls, but recall remains an essential safeguard to protect the public when risk increases. The 56-day period provides more time to undertake a thorough review of an offender’s release plans and licence conditions, ensuring that needs and risks are managed. There is a specific focus on mitigating risks against known victims.

I turn first to the Amendment tabled to Clause 26 by the noble Baroness, Lady Jones. The existing recall test set out in operational guidance already provides a clear and robust framework for decision-making. It ensures that recall is used appropriately when risk can no longer be safely managed in the community. Legislation is a blunt and inflexible tool and would create barriers to recall where swift action was needed to protect the public. Let me give a brief illustration. An individual on licence for stalking and harassment begins to show a marked deterioration in their mental health. They commit breaches, entering an exclusion zone and making indirect contact with a victim online. None of those incidents taken alone would have met a rigid statutory test such as imminent risk or persistent non-compliance but, viewed together, they clearly indicate escalating risk.

It is important to note that the clause already includes a power for the Secretary of State to amend the recall power in Section 254 of the Criminal Justice Act 2003, specifically to make provision about the circumstances in which a person may or may not be recalled. This means that there is already flexibility to adjust the recall framework in future should evidence show that further refinement is needed. For these reasons, it is not necessary to legislate to amend the recall threshold at this time, but I am keen to review what more can be done beyond the Bill to bear down on the use of recall and ensure that it is really the last resort.

The offences listed in Amendment 121, tabled by the noble Lord, Lord Marks, and the noble Baroness, Lady Hamwee, are extremely serious. While some of these cases would fall within the scope of the new recall model, many of the perpetrators of the offences referenced are excluded. This is because they will have received life sentences or extended determinate sentences and therefore remain subject to standard recall arrangements. This means that their re-release will be subject to approval by the Parole Board or the Secretary of State.

I also fully acknowledge the risks posed by the offenders highlighted in the amendments tabled by the noble Lord, Lord Russell, and the noble Baroness, Lady Jones. However, we must balance that recognition with the need for a sustainable system that ensures that our prison capacity is focused on those who present the most significant threat to public safety. The new recall system reflects this balance. It is designed to ensure consistent and proportionate responses to risk and non-compliance across all offence types. Introducing the exemption posed by these amendments would undermine that consistency and may not reflect an individual’s actual risk level. As I mentioned earlier, before any recalled offender is re-released, the Probation Service will undertake a thorough review of their release plans and licence conditions. This will ensure that needs and risks are managed, with a focus on mitigating risks against known victims. This will take account of any patterns of behaviour.

Recall remains an important public protection tool where risk escalates. Offenders who pose a greater risk are already excluded from these changes. I remind noble Lords that in this area the Bill goes further than David Gauke’s Independent Sentencing Review and specifies that certain groups must receive a standard recall. This cohort includes those recalled on account of being charged with a further offence, such as in relation to a breach of a civil order. It also includes those subject to multi-agency supervision levels 2 and 3, which apply to many sexual, violent and domestic abuse offenders.

Moreover, the framework already provides sufficient flexibility without further legislative change. The Bill allows the Secretary of State to keep the offender in custody past 56 days in exceptional circumstances by overriding automatic re-release and converting a fixed-term recall to a standard recall. This would apply if further information after recall revealed that the offender now fell into one of the exclusion categories or if the offender would pose a risk of significant harm to the public by committing murder or specified violent or sexual offences once released.

Let us consider an example involving an individual eligible for the 56-day recall period. They return to custody after attending an address from which they had been specifically prohibited and behaving in an aggressive and confrontational manner. Shortly afterwards, the probation officer is informed by the police that the individual has now been charged with breaching a civil protective order. As this charge places the individual within an exclusion category, we can convert the recall to a standard recall.

Let us consider another example. New intelligence is received during a 56-day recall period indicating that an individual intends to make threats to kill upon release. It is assessed that the individual would present a significant risk of harm if automatically released at the end of the 56 days. Like in the example before, we can convert the recall to a standard recall, preventing automatic release.

The Secretary of State has the power to cancel a recall if satisfied that the offender has complied with their licence condition. This is unchanged by the Bill. I am confident that the safeguards already built in to the Bill provide the necessary assurance to address the noble Lords’ concerns. I therefore respectfully ask them not to press their amendments.

My Lords, can I ask for a bit of advice on the procedure, because we got slightly out of order in this group? Mistakenly, the first four amendments in the group were not moved but were then spoken to. I stood up first and spoke to Amendment 114, so I am not quite sure whether it is me who is meant to reply to the Minister, but if everyone is happy and Jake the clerk is happy, then I am happy.

I thank the Minister for his response, but the Domestic Abuse Commissioner feels that she has genuine reasons for concern. It would be helpful, if the Minister agrees, for him to meet us between now and Report. We feel strongly enough that if we are not able to resolve this to her satisfaction, we will certainly want to bring it back on Report and may take it to a Division.

I am very happy to meet as suggested. It is a very good idea.

I thank the Minister. On that basis, I beg leave to withdraw the Amendment.

Amendment 114 withdrawn.

Amendments 115 to 117 not moved.

Clause 29 agreed.

Amendments 118 and 119 not moved.

House resumed. Committee to begin again not before 8.30 pm.