Police, Crime, Sentencing and Courts Bill

Lord Carlile of Berriew Excerpts

Lords Hansard - Part 1 & Report stage
Wednesday 8th December 2021 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, we have more and more life sentences and less and less judicial discretion. The point made by the noble Baroness, Lady Fox, that deterrence is not a factor in this really should not be glossed over; it is very important.

[Lord Carlile of Berriew (CB)]

My Lords, I am puzzled by the mechanism that the Government are trying to use to increase sentences, which, in some cases, should rightly be higher, in relation to the deaths of emergency workers. After a long period of development, we created a completely new mechanism: the Sentencing Council. Judges must have regard to sentencing guidelines in every case, and those guidelines are complex. They give examples of levels at which sentences should start in certain circumstances.

I see a number of noble Lords around this Chamber who have either acted as police officers or have prosecuted and defended manslaughter cases. In my case, I have done, on one side or the other, a number of one-punch manslaughter cases, in which there was a conviction, and perhaps a sentence of three or four years’ imprisonment. One can imagine circumstances in which that could have arisen where the person who died was an off-duty emergency worker trying to help someone, and the perpetrator of the offence had no idea that that person was an emergency worker.

Surely the better mechanism is to use the flexible, living instrument of the Sentencing Council, and the sentencing guidelines, and not to inhibit the discretion of judges. The Sentencing Council and the judges will, of course, respond to the pressure that rightly arises from the awful case that has given rise to this discussion and this amendment. With great respect to the Minister, relying on “exceptional circumstances”, a description that is always determined in a restrictive way—rightly so—by the Court of Appeal, seems to be the wrong mechanism to achieve the right result.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, on these Benches we share the shock and revulsion at the death of PC Harper and the way that it came about. We support the principle that a life sentence should be available, and even possibly the norm in serious cases, for the manslaughter of an emergency worker. But where we part company with the Government is in sharing the concerns of the noble Viscount, Lord Hailsham, and everybody else who has spoken. We are unhappy with the proposal that such a sentence should be mandatory unless a judge can find “exceptional circumstances”.

The word “exceptional” has been seen in the past as requiring circumstances that are quite out of the ordinary. Frankly, I took issue with the Minister when he treated the word as allowing more latitude than the usual interpretation of “exceptional” would permit. The MoJ press release uses the phrase “truly exceptional” to describe what is required. In that connection, the noble Baroness, Lady Fox, rightly made the point about legislation by press release—a point echoed by the noble Lord, Lord Carlile, when he talked about the knee-jerk nature of this type of legislation in particular cases.

We would have far preferred the amendment to permit judges the discretion to depart from the life sentence where the circumstances and the interests of justice required. The Government’s determination to prevent judges exercising discretion, as seen throughout this Bill, is frankly depressing. This is despite Victoria Atkins MP saying in the other place only yesterday, in answer to a question from my right honourable friend Alistair Carmichael MP, that:

“Fundamentally, the judiciary and magistrates should be trusted in their sentencing decisions.”—[Official Report, Commons, 7/12/21; col. 206.]


Frankly, we agree. I made these arguments in Committee in connection with my amendments to the minimum fixed sentence provisions in Clause 101—now Clause 102 —and I will make them again when we come to debate my amendments later on Report.

The Explanatory Note to these provisions asserts that they require a court to impose a life sentence on an offender who is convicted of unlawful and dangerous act manslaughter against an emergency worker. That is misleading. There is no requirement in the proposals that the manslaughter be dangerous, in the sense that there was danger to the life of the victim, as there so obviously was in the Harper case. The requirement for danger in the case of unlawful act manslaughter, on the cases and in the CPS guidelines to prosecutors who apply those cases, it is very limited indeed. It is necessary only that the unlawful act exposed someone—not even necessarily the victim who died—to the risk of “some harm”.

I take a hypothetical case, similar to that mentioned by the noble Viscount, of a bad-tempered 17 year-old suspected by a shopkeeper of shoplifting. The shopkeeper accosts him. A row ensues, which turns into a fight—not serious, but serious enough to draw a passing police officer to come into the shop to intervene. The officer tries to arrest the youth. The youth resists arrest. He throws a punch at the officer—not hard, but plainly an assault on a police officer in the execution of his duty and enough to be obvious to everyone that it could cause some harm. The officer falls backwards and sustains an injury that turns out to be fatal.

All the elements of unlawful manslaughter are there. The guideline sentence would probably be two to four years. The required sentence under these proposals would be life imprisonment. Are these circumstances “exceptional,” as that word is known to the law? No. is the sentence just for that 17 year-old, whose very bad behaviour had such tragic consequences? I would suggest clearly not, when one considers the overall criminality of the offence and the offender. Of course, the death of the victim would significantly aggravate the sentence. That is true for all manslaughter cases. And of course, the fact that the victim was a police officer acting in the course of his duty would be another seriously aggravating factor. But should those circumstances lead to detention for life for a 17 year-old?

The manslaughter excluded from the operation of these provisions is, as the Minister helpfully explained, manslaughter by gross negligence—a very sensible exclusion—or manslaughter mentioned in certain sections of the Homicide Act or the Coroners and Justice Act, which cover diminished responsibility by reason of a recognised mental condition, suicide pacts and loss of control, reducing murder to manslaughter if the specified conditions are met. But that leaves the whole area of unlawful act manslaughter within the provisions, and any such manslaughter of an emergency worker would attract the mandatory life sentence.

The current sentencing guidelines mentioned by the noble Lord, Lord Carlile of Berriew, which came into force as recently as 1 November 2018, suggest a range of sentences for manslaughter of between one and 24 years. They divide culpability into four ranges, from A at the top to D at the low end. The factors indicating lower culpability are as follows:

“Death was caused in the course of an unlawful act … which was in defence of self or other(s) (where not amounting to a defence) OR … where there was no intention by the offender to cause any harm and no obvious risk of anything more than minor harm OR … in which the offender played a minor role,”


or where the

“offender’s responsibility was substantially reduced by mental disorder, learning disability or lack of maturity.”

Those factors, or some of them, could quite easily be present in many cases of manslaughter of an emergency worker. So these sentences might—perhaps even often—cause serious injustice.

A further point was alluded to by the noble Lord, Lord Pannick. When a life sentence is passed, the release date is ultimately in the hands not of the courts but of the Home Secretary. Any Home Secretary, not just this one, is subject to political pressures. Were a victim, for example, the holder of a Queen’s Police Medal, and there was a campaign to keep the offender in custody on that account, how easy would it be for this or a future Home Secretary to succumb to pressure to keep the offender subject to a life sentence in custody, for far longer than would be just?

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[Lord Carlile of Berriew (CB)]

I am grateful to the Minister for giving way. One point he has not dealt with, as I understand it, is why the Sentencing Council and sentencing guidelines are not seen as an adequate and flexible mechanism for dealing with cases of this kind. We need a reasoned explanation for the rejection of that proposition.

[Lord Wolfson of Tredegar (Con)]

The reasoned explanation is that the Government believe that this is an offence which should be marked by a life sentence—a mandatory life sentence. The amount of time the person serves can be set by the judge in a tariff.

[Lord Carlile of Berriew (CB)]

The Minister has just given the game away by his slip of the tongue. He said it is a case which should be marked by “a life sentence”, and then he said, “a mandatory life sentence”. He was right before he made the slip of the tongue. That is exactly what judges can do and exactly what the Sentencing Council can deal with. I am afraid that I do not accept that his explanation so far has been reasoned.

[Lord Wolfson of Tredegar (Con)]

We are now having precisely the opposite debate to the one we had in Committee. In Committee, when someone said to me—I think it was the noble Baroness, Lady Jones—“this is a mandatory sentence” and I said, “but there are exceptions”, it was said to me, “no, it is mandatory”. Now, when I am trying to point out that it is not mandatory, in the sense that it is a mandatory life sentence but it does not mean you serve life in prison, that is said to be a slip of the tongue. I absolutely meant what I said: this provision sets out a mandatory life sentence, because the Government believe that is the right way to mark society’s horror at the killing of emergency workers, in the same way that we do for murder.

However, with murder, and in this case, the trial judge will have the ability to set an appropriate tariff. Also, unlike with murder, the trial judge can, in exceptional circumstances, depart from the sentence entirely, something which society and Parliament does not enable a trial judge to do in any murder case. With great respect to the noble Lord—

[Lord Carlile of Berriew]

I am sorry to interrupt again, but the Minister has said something completely untenable. He said that under “exceptional circumstances”, the judge has the power to depart from the sentence entirely. That is absolutely not the case. If the sentencing guidelines in front of any judge sitting in a criminal court lead to the conclusion that the starting point for the sentencing process is a life sentence, but there are circumstances at which different levels can be set, they will operate on that basis. This provision is unnecessary if we trust the judges. The Government are telling us, on the basis of belief, as the Minister said—which I do not necessarily regard as reasoned—that they do not trust judges to pass appropriate sentences in these cases, on the basis of one or two instances, when there is a perfectly good living instrument for dealing with this.

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[Lord Wolfson of Tredegar]

I am very happy to be accused of all sorts of things, but I hope that nobody in this House believes that I act either towards it or towards any of its Members with discourtesy. We may have disagreements, but they are always, I hope, courteous. I am not in the least embarrassed about going back to the Ministry of Justice with or without anything. My task, as I see it, is to set out the Government’s position in this House and then the House has to take a view.

With great respect to the noble and learned Lord, I do not accept that this is a question of tweaking the provision or making it better. The points that have been put to me are really points of principle—people do not agree with this at all, while saying, “Of course we agree.” The matter ought to be presented to the House and dealt with by it today.

[Lord Carlile of Berriew (CB)]

Following on from the remarks of the noble and learned Lord, Lord Falconer, can the Government agree to the House being adjourned for half an hour or so, so that there can be a discussion between the usual channels and between the groups in the House as to how this should continue? We would be very grateful and it would be seen as a matter of utmost but necessary courtesy.

[Baroness Jones of Moulsecoomb (GP)]

I have an alternative suggestion; perhaps the clerk can tell us whether it is legal. Is there anything to stop any of us calling for a vote once—

Police, Crime, Sentencing and Courts Bill

Lord Carlile of Berriew Excerpts

Lords Hansard - part one & Committee stage
Wednesday 17th November 2021 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I rise to speak in place of my noble friend Lady Bennett, who has tabled Amendment 221. As the noble Baroness, Lady Chakrabarti, said, it is perhaps a softer option that your Lordships might find acceptable.

I strongly support the amendment in the name of the noble Lord, Lord Dholakia, and the noble and learned Baroness, Lady Butler-Sloss. The only qualm I have about Amendment 220 is that it sets the age at 12 and not 14. Quite honestly, we treat our children in the criminal justice system absolutely abysmally, with demonstrably disastrous results and a recidivism rate of 40% within a year. This demonstrates that the courts are not working to address the issue of these children. As we have already heard, the Children’s Commissioner has described the youth justice system as “chaotic and dysfunctional”, and the children caught up in it are disproportionately from ethnic minority communities.

We are world leading in the awful way in which we treat children. At 10, we have the lowest age in Europe—far below the suggestion from the UN Committee on the Rights of the Child of a minimum appropriate age of 14. That is the average across European countries, but even China and Russia—where the UK rightly often has cause to point out human rights abuses—have higher ages of criminal responsibility than we do. And we do not have far to look—we can go to Scotland to see exactly what happens there. There the age is 12, and I would prefer it to be 14.

This is not a moral question but a scientific one. Children’s brains do not develop as quickly as people might think. Children below the age of 14 are still developing the capacity for abstract reasoning. Their frontal cortex is still developing; therefore, they are unlikely to understand the impact of their actions. I think there is some political will in Westminster to take this evidence on board and, to use a phrase so loved by the Government, “level up” our youth justice legislation. In 2020, the Justice Committee recommended that the Ministry of Justice review the minimum age of criminal responsibility. Unfortunately, the Government seem to have chosen once again to renew their ideological commitment to being tough on law and on youth crime, even when it is committed by children. This is not an acceptable status quo either on human rights or on scientific grounds. Children are being failed by antiquated government standards. This is an outrage, and reform is needed.

If the Government cannot accept Amendment 220—which they absolutely should—Amendment 221, in the name of my noble friend Lady Bennett, might be a soft option. Both she and I hate putting softer options to the Government, but, in this case, it might work. It would ensure a legally binding commitment on the UK Government to at least consider whether our abnormally low age of criminal responsibility is tenable, given international norms and expert opinion. My noble friend Lady Bennett would, of course, be happy to discuss a revised text for Report. Personally, I would tough it out and potentially vote for Amendment 220 and for our Amendment 221.

[Lord Carlile of Berriew (CB)]

My Lords, I apologise to the noble Baroness who has just spoken. It is a pleasure, on this occasion at least, to follow her. I do not necessarily agree with some of the language she used. I do not feel a sense of outrage about this issue. I feel shame and sadness and I agree strongly with the speech of my noble and learned friend Lady Butler-Sloss, and other noble Lords who have spoken on this issue.

The noble Baroness, Lady Jones, used the term “outlier”. That is what I had scribbled down on the piece of paper in front of me. We are the outliers on this. As the noble Baroness said, in Russia the age of criminal responsibility is much higher. Indeed, the general age of criminal responsibility there is 16, with 14 for exceptionally serious offences. I have visited a number of countries in central and eastern Europe and looked at the way in which young children who have committed serious offences are dealt with, and I do not notice a higher level of disorder in a single one of these countries. I do not know any country with a higher age of criminal responsibility in which children roam the streets committing crime to a greater extent than—very occasionally, fortunately—happens here, and I can see absolutely no empirical reason for turning down this amendment.

I have also observed how children behave when they are sent to Crown Courts. I am happy to note that far fewer children are being dealt with in Crown Courts than used to be the case and that the Crown Prosecution Service is being much more sensitive than it used to be at one time as regards the joinder of children with adults in Crown Court trials. The CPS has recognised that, wherever it is possible, children should be dealt with in the youth court. That has led to a reduction in the number of Crown Court trials.

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[Lord Falconer of Thoroton (Lab)]

My Lords, that was my fault. I was not for one moment suggesting that the noble and learned Baroness, Lady Butler-Sloss, was saying that the Bulger case did not require enormously sensitive handling, nor that she was in any way underestimating the seriousness of it. I was seeking to say that the fact that there were tabloid campaigns about it and that people were very concerned about it was absolutely legitimate. What they were asking for was not necessarily legitimate, but there was very real concern. Obviously, there must be anonymity, but if the matter is dealt with entirely in the care system, without any public element of how the law is dealing with it, then the community never gets satisfaction in relation to what is happening. By satisfaction, I mean that there must be some recognition within the justice system of the appalling nature of what has happened.

[Lord Carlile of Berriew (CB)]

Surely the noble and learned Lord is not saying that the public aspect of this, which he describes rightly, must be dealt with by a criminal trial. Numerous other mechanisms can be used. An inquiry, for example, can ventilate all the public factors that need to be discussed without the artifices of a criminal trial for 10 year-olds.

[Lord Falconer of Thoroton (Lab)]

I agree that it does not need to be dealt with in a criminal trial, but there needs to be some process. Before one increases the age of criminal responsibility from 10 to 12, which we should do, this must be looked at. This is why I rather favour the second amendment, tabled by the noble Baroness, Lady Chakrabarti, which is a review of this, because broadly the case is made in relation to it. It probably should not be something ad hoc, as is the nature of an inquiry, but it should have some recognition that cases such as the Bulger case, which have a significant effect on not only the local but the national community, must be dealt with in a special way.

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Rather than reinvent the wheel, the Government should give local authorities the opportunity to tender for these secure establishments. I must say that this sounds like dogma—the dogma which says that “academy” can mean only something which is not local authority. For goodness’ sake, the important thing here is the service that is to be provided and not the name it is called. The definition of “academy” in this manner may suit the Government but it does not suit the interests of children, who need the best services so that they can get the best form of education in a secure environment and come out of that with an opportunity for their lives in front of them.

[Lord Carlile of Berriew (CB)]

My Lords, it is a pleasure to follow the noble Lord, Lord German. I know that he has an immense amount of experience in matters around education, from both his personal experience of teaching in earlier decades and his work in the Welsh Assembly Government. I probably support his amendment, but I am much less interested in the amendments here than in achieving a shared purpose, which is that children who are in custody have the chance of a quality education which will enable them to go on to higher education, where appropriate, good apprenticeships and other forms of training which will give them a decent chance in life—most of them not having had a chance in life. I am afraid it is a truism, at least in my experience of visiting many institutions holding children, that for many of them, that institution is the most comfortable and secure place, emotionally, that they have ever lived. That is a sad commentary on their situation.

I carried out some voluntary work for the Howard League some years ago, and it involved visiting Oakhill, Rainsbrook and, indeed, Feltham—a place which has been through good and bad patches over the years but, from what I hear from people who work there, is at the moment pretty challenging and not providing children with a particularly good education.

The ambition that we surely all share is that there should be a consistent level of good education throughout those institutions. I will give an illustration of why. When I was doing the voluntary work for the Howard League, of which the current president is another Member of your Lordships’ House, the noble Lord, Lord Macdonald of River Glaven—I am very happy to see him in that role—I went to one of the institutions that I have named. I was taken around and a boy of about 16 asked me to go into his room, as he called it. I went into his room and all over the wall there were maths certificates, including a grade A GCSE maths certificate. I said something really silly like, “You must be very good at maths.” He said, “I love it, sir. I want to be a maths teacher when I leave this place.” I do not know what happened to him, but he certainly had the ability to be a maths teacher. The reason he got that maths GCSE was because there was one really inspired teacher in that institution who spotted his talent at maths and had taken it to that level. I said to this boy, “Did you like maths when you were at school before you came here?” He replied, and I will never forget these words: “I never went to school, sir.” The capacity of education in these institutions and the opportunity it provides are enormous, but it has to be consistent.

Charlie Taylor, who has been referred to in this debate, did some very valuable work. I was very fortunate in that I was a consultee for him from time to time. He absolutely shares the views I expressed in the last few minutes. I ask the Government to accept that the ambitions I have expressed are shared by the Government too and that, whatever we call these institutions, whoever runs them—I do not really care, to be frank, as long as they reach the requisite standard—will try to reach standards that have been reached in the past. Noble Lords will remember Peper Harow, which was a very fine institution run in the voluntary sector by a number of trustees who would have been familiar in some way or another to Members of your Lordships’ House. It came to a slightly abrupt end because there was an accident there, but people who left Peper Harow, having had their education, commonly went straight to university and achieved university degrees, or did other training that gave them a good life after custody.

I say to the Minister: please can we have an assurance that we are not getting bogged down in process and the name we give to these educational institutions, and that we are actually trying to achieve a gold standard of quality with young people who are bored of being in an institution and for whom education is a really welcome change if it is good enough?

[Baroness Chakrabarti (Lab)]

My Lords, I am sorry, I was looking around the Chamber to see who was poised and trying to be too polite. It is an absolute pleasure to follow the noble Lord, Lord Carlile of Berriew, who many members of the Committee will associate with his legal expertise, but it is to be remembered that he has a considerable track record, to say the least, in matters of penal reform.

It is also a pleasure to have my name associated with this amendment in the names of the noble Lords, Lord German and Lord Marks of Henley-on-Thames. It seems totally anomalous that local authorities should be excluded from giving this provision, for all the compelling reasons given by the noble Lord, Lord German, about the expertise that they have accumulated in relation to education, children, care and so on. It can be only an ideological justification—I must not be too smug about ideology because I have a little of my own. Although there are always political debates about the role of the state in relation to all sorts of goods and services, most people, across politics and across the Committee, have some sort of notion of the irreducible core of the state. Personally, I think that, as with policing and the Army, incarceration ought in general to be a primary responsibility of the state itself, for obvious reasons to do with the vulnerability of those incarcerated and the responsibility, including democratic responsibility, of politicians, whether at local or national level, in relation to powers of coercion and the incredible vulnerability of people who, of course, cannot even vote.

Police, Crime, Sentencing and Courts Bill

Lord Carlile of Berriew Excerpts

Lords Hansard - part two & Committee stage
Wednesday 10th November 2021 Lords Chamber

[Lord Paddick (LD)]

Forgive me for the delay, my Lords—so many amendments, so little time, as it were.

I am grateful to Transform Justice for its briefing on this issue and for its assistance in drafting this amendment. Currently, simple cautions with no conditions attached are considered “spent” within the meaning of the Rehabilitation of Offenders Act 1974 as soon as they have been given. This means that they do not have to be disclosed to potential employers. The Government propose to abolish simple cautions, so those who would previously have received a simple caution, which do not have to be disclosed, could potentially receive a diversionary caution, which, like conditional cautions currently, have to be disclosed for three months after the caution is given. Given the Government’s commitment to reform rehabilitation periods elsewhere in the Bill, we suggest that the rehabilitation period for diversionary cautions should be removed. In Part 11, Clause 164 already sets out various changes to the rehabilitation periods for different sentences. Removing the diversionary caution rehabilitation period should be added to the list of those changes.

The Government argue that a three-month spending period is required for a diversionary caution to support protection of the public. There is strong evidence that employment is one of the most, if not the most, important factors in enabling people to cease offending behaviour and to move on to crime-free lives as productive members of society. A three-month rehabilitation period is short enough to have little impact on public protection, but its existence will require people in employment or seeking employment to declare the caution and risk losing their job or be refused employment. It will also act as a barrier to those seeking education and volunteering opportunities. Research has found that employers discriminate against people with criminal records and that most do not differentiate between a caution and a conviction. Introducing a spending period for the diversionary caution will therefore hamper people’s efforts to gain employment while doing little for public protection. Diversionary cautions should follow the spending regime for the existing simple caution and end at the point at which the caution is given. I beg to move Amendment 189ZA.

[Lord Carlile of Berriew (CB)]

My Lords, I support the noble Lord’s amendment. If I may, I will elasticate the rules of order slightly by referring to some other issues relating to the spending of cautions and of convictions.

In 2013 and 2014, an ad hoc committee of Members of this House and of the other place reported, sponsored by the National Children’s Bureau and the Michael Sieff Foundation, on the youth courts. I was part of that group, as was the noble Lord, Lord Ponsonby, who was very valuable member, and as was a certain Back-Bencher called Robert Buckland, who later became Secretary of State for Justice and Lord Chancellor. To be fair to him, despite having gone to the other side of good behaviour by becoming a member of the Cabinet, he always remained personally committed to what we had found. Our second recommendation was this:

“Children who have committed non-serious and non-violent offences, who have stopped offending, should have their criminal record expunged when they turn 18.”


I believe that that is a very important principle for which there is supporting evidence around the world. I am disappointed that the Bill is a touch pusillanimous in not picking up that recommendation—and I am grateful to say to the Minister that a number of our recommendations have been picked up.

If the noble Lord were to speak to Charlie Taylor, who held a very important position in the Ministry of Justice at that time, as chairman of the Youth Justice Board, and who is of course now Her Majesty’s Chief Inspector of Prisons, he would find that he is also very supportive of that recommendation, with his huge experience of dealing with young people, first as a teacher and then in the criminal justice sphere.

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Moved by

[Lord Carlile of Berriew]

208: Clause 109, leave out Clause 109 and insert the following new Clause—
“Power to refer high-risk offenders to High Court for consideration of referral to Parole Board in place of automatic release
(1) The Criminal Justice Act 2003 is amended in accordance with subsections (2) to (10).(2) In section 243A (release of prisoners serving sentences of less than 12 months), after subsection (2) insert—“(2A) Subsection (2) does not apply if—(a) the prisoner’s case has been referred to the High Court or the Board under section 244ZB, or(b) a notice given to the prisoner under subsection (4) of that section is in force.” (3) In section 244 (general duty to release prisoners), after subsection (1) insert—“(1ZA) Subsection (1) does not apply if—(a) the prisoner’s case has been referred to the High Court or the Board under section 244ZB, or(b) a notice given to the prisoner under subsection (4) of that section is in force.”(4) After section 244 insert—“244ZB Referral of high-risk offenders to High Court in place of automatic release(1) This section applies to a prisoner who—(a) would (but for anything done under this section and ignoring any possibility of release under section 246 or 248) be, or become, entitled to be released on licence under section 243A(2), 244(1) or 244ZA(1), and(b) is (or will be) aged 18 or over on the first day on which the prisoner would be so entitled.(2) For the purposes of this section, the Secretary of State is of the requisite opinion if the Secretary of State believes on reasonable grounds that the prisoner would, if released, pose a significant risk to members of the public of serious harm occasioned by the commission of any of the following offences—(a) murder;(b) specified offences, within the meaning of section 306 of the Sentencing Code.(3) If the Secretary of State is of the requisite opinion, the Secretary of State may refer the prisoner’s case to the High Court.(4) Before referring the prisoner’s case to the High Court, the Secretary of State must notify the prisoner in writing of the Secretary of State’s intention to do so (and the reference may be made only if the notice is in force).(5) A notice given under subsection (4) must take effect before the prisoner becomes entitled as mentioned in subsection (1)(a).(6) A notice given under subsection (4) must explain—(a) the effect of the notice (including its effect under section 243A(2A), 244(1ZA) or 244ZA(3)),(b) why the Secretary of State is of the requisite opinion, and(c) the prisoner’s right to make representations (see subsection (12)).(7) A notice given under subsection (4)—(a) takes effect at whichever is the earlier of—(i) the time when it is received by the prisoner, and(ii) the time when it would ordinarily be received by the prisoner, and(b) remains in force until—(i) the Secretary of State refers the prisoner’s case to the High Court under this section, or(ii) the notice is revoked.(8) The Secretary of State—(a) may revoke a notice given under subsection (4), and(b) must do so if the Secretary of State is no longer of the requisite opinion.(9) If a notice given under subsection (4) is in force and the prisoner would but for the notice have become entitled as mentioned in subsection (1)(a)—(a) the prisoner may apply to the High Court on the ground that the prisoner’s release has been delayed by the notice for longer than is reasonably necessary in order for the Secretary of State to complete the referral of the prisoner’s case to the High Court, and (b) the High Court, if satisfied that that ground is made out, must by order revoke the notice.(10) At any time before the High Court disposes of a reference under this section, the Secretary of State—(a) may rescind the reference, and(b) must do so if the Secretary of State is no longer of the requisite opinion.(11) If the reference is rescinded, the prisoner is no longer to be treated as one whose case has been referred to the High Court under this section (but this does not have the effect of reviving the notice under subsection (4)).(12) The prisoner may make representations to the Secretary of State about the referral, or proposed referral, of the prisoner’s case at any time after being notified under subsection (4) and before the High Court disposes of any ensuing reference under this section.But the Secretary of State is not required to delay the referral of the prisoner’s case in order to give an opportunity for such representations to be made.(13) Upon hearing a reference, the High Court must determine whether the prisoner would, if released, pose a significant risk to members of the public of serious harm occasioned by the commission of an offence under subsection (2) and either—(a) allow the Secretary of State’s reference, or(b) dismiss the Secretary of State’s reference.(14) If the High Court allows the Secretary of State’s reference, the Secretary of State must refer the prisoner’s case to the Parole Board.(15) If the High Court dismisses the Secretary of State’s reference, section 243A(2), 244(1) or 244ZA(1), as applicable, of the Criminal Justice Act 2003 applies to the prisoner.244ZC Proceedings following reference under section 244ZB(1) This section applies to a prisoner whose case has been referred to the Parole Board under section 244ZB.(2) If, in disposing of that reference or any subsequent reference of the prisoner’s case to the Board under this subsection, the Board does not direct the prisoner’s release, it is the duty of the Secretary of State to refer the prisoner’s case to the Board again no later than the first anniversary of the disposal.(3) It is the duty of the Secretary of State to release the prisoner on licence as soon as—(a) the prisoner has served the requisite custodial period, and(b) the Board has directed the release of the prisoner under this section.(4) The Board must not give a direction under subsection (3) in disposing of the reference under section 244ZB unless the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.(5) The Board must not subsequently give a direction under subsection (3) unless—(a) the Secretary of State has referred the prisoner’s case to the Board under subsection (2), and(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.(6) For the purposes of this section, the “requisite custodial period” means the period ending with the day on which the prisoner would have become entitled as mentioned in section 244ZB(1)(a).”(5) In section 246(4) (exceptions from power to release early subject to curfew), after paragraph (f) insert— “(fa) the prisoner’s case has been referred to the Board under section 244ZB,(fb) a notice given to the prisoner under subsection (4) of that section is in force,”.(6) In section 255A(2) (duty to consider suitability for automatic release following recall of certain prisoners) (as amended by the Counter-Terrorism and Sentencing Act 2021), for “or a serious terrorism prisoner” substitute “, a serious terrorism prisoner or a prisoner whose case was referred to the Board under section 244ZB”.(7) In section 255C(1) (prisoners whose release after recall is not automatic), for the words from “who” to the end substitute “—(a) whose suitability for automatic release does not have to be considered under section 255A(2), or(b) who is not considered suitable for automatic release.”(8) In section 260(5) (powers and duties of Secretary of State that continue to apply to prisoner removed from prison pending deportation), after “244,” insert “244ZB,”.(9) In section 261(5)(b) (application of release provisions to returning deported prisoner), after “244,” insert “244ZC,”.(10) In section 268(1A) (meaning of “requisite custodial period” in Chapter 6 of Part 12), after paragraph (c) insert—“(ca) in relation to a prisoner whose case has been referred to the Parole Board under section 244ZB, the requisite custodial period for the purposes of section 244ZC;”.(11) In Schedule 1 to the Crime (Sentences) Act 1997—(a) in paragraph 8(2)(a) (provisions relating to release continuing to apply to prisoner transferred from England and Wales to Scotland), for “, 244,” substitute “to”;(b) in paragraph 9(2)(a) (provisions relating to release continuing to apply to prisoner transferred from England and Wales to Northern Ireland), for “, 244,” substitute “to”.(12) In section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (power to alter test for release on licence at direction of Parole Board)—(a) in subsection (2), after paragraph (b) insert—“(bza) a prisoner whose case has been referred to the Parole Board under section 244ZB of the Criminal Justice Act 2003 (power to refer to Parole Board in place of automatic release),”;(b) in subsection (3), before paragraph (ab) insert—“(aaa) amend section 244ZC of the Criminal Justice Act 2003 (proceedings following reference under section 244ZB of that Act),”.”

[Lord Carlile of Berriew (CB)]

My Lords, this amendment stands in my name and the names of other noble Lords. In one way, this amendment is modest, although I regret that it is not modest in length. Indeed, I think it is the longest amendment on the current Marshalled List, winning that dubious honour, by only a short head, over Amendment 259C tabled by the noble Lord, Lord Marks of Henley-on-Thames.

Our amendment leaves intact the legislative intention of Clause 109 to provide a safeguard against the early release of a prisoner serving a determinate sentence who presents a significant risk to members of the public. The amendment’s less modest intention is, quite simply, to preserve the separation of powers—not to give a Secretary of State the power to in effect change and lengthen sentences. It transfers the initiation of the safeguard that is sought from the Executive to the judiciary. It will enable a full hearing of the facts before a prisoner has their case referred to the Parole Board. A Secretary of State who is using this power appropriately has absolutely nothing to fear from this safeguard. It preserves the necessary separation between an elected politician and an individual prisoner who has been sentenced.

I am grateful to the noble and learned Lord, Lord Garnier, the noble Baroness, Lady Prashar, and the noble Lord, Lord German, for co-signing the amendment. The noble and learned Lord, Lord Garnier, was kind enough to get in touch with me this morning to say that he had a professional engagement elsewhere. I checked that he had not picked up a returned brief in the Virgin Islands from a Member of another place, and I am sure that that is not what happened. I am also particularly pleased that the amendment is tabled with the support of the Sentencing Academy, the Prison Reform Trust and Justice—all highly respected and thoughtful organisations.

At the heart of Clause 109 lies an assessment of dangerousness. The clause is aimed at a small number of prisoners who have been underclassified at the point of sentencing. The scenario cited in the White Paper concerns people who are assessed as presenting a terrorist threat, but who are in prison serving a sentence for a non-terrorism-related offence, and offenders who are deemed to present a significant danger to the public for other reasons but whose offending behaviour and assessment of dangerousness at the point of sentencing did not meet the threshold for a finding of dangerousness. One can think of many examples, but familiar to me because of my interest in terrorism offences is people who have been sentenced for quite mundane crimes but who are radicalised in prison and present a high degree of dangerousness at a time when they otherwise might be released.

--- Later in debate ---

For those reasons, although I understand the impetus behind the amendment, I suggest that, far from making the mechanism better, it would make it significantly worse. I therefore respectfully invite the noble Lord to withdraw the amendment.

[Lord Carlile of Berriew (CB)]

My Lords, I am very grateful to those who have intervened in this debate. I pay particular tribute to the noble Lord, Lord German, who has had the courage to climb on to the head of the pin occupied by a number of broad-shouldered and big-elbowed lawyers. He made some very good points in doing so, particularly his straightforward point about the gatekeeping role that we say in this amendment should be carried out by the High Court.

I thank the noble Viscount, Lord Hailsham. I was around in the other place in the heady days when he was a Minister at the Home Office. I suspect that his experience of the Home Office as he described it was as instructive as such experience would be today. What is required in these cases is a clear exercise of judgment before they reach the Parole Board, fully expressed and in a justiciable way. A lot has been said about the adequacy of reasons in relation to this issue. I think we are all agreed—certainly, the noble and learned Lord, Lord Falconer, and the Minister agreed—that we are concerned about the adequacy of reasons.

I am puzzled by what the Minister said about the utility of judicial review in these cases. He knows—all those of us who have been in judicial review cases, and some of us have been judges in them, know—that the test of judicial review is not an ordinary merits test; it is not a test of what is right. The test in judicial review, if you are to win, is: would no reasonable Minister have made this decision? It is quite different from the test on the merits which would be applied by the High Court. I will say a word in a moment in answer to points that have been made about the High Court. I say to those who have suggested that judicial review is an adequate remedy—of course, it is a possible remedy—that it does not fit the bill because it does not mean that there will be a merits test with the adequacy of reasons that has been discussed.

The noble and learned Lord, Lord Falconer, is an absolutely excellent and much-admired advocate, at least by me, but like other great advocates is sometimes wrong, and I venture to suggest that he may have been wrong on this occasion. What this amendment argues for is two quite different stages which are carried out without the intervention of the Executive, save to refer a case. The High Court makes the first assessment. I take what was said by the noble Viscount on drafting as something that needs to be considered, so I will just use the present tense: is there a risk that there is a danger of a particular sort? If so, the case is referred to the Parole Board. That is a decision based on the evidence, on merits, after a proper hearing. It goes to the Parole Board and a quite different assessment is made, which is the one the Parole Board expertly carries out all the time and is about release provisions—whether a person should be released or detained in custody.

It has been an interesting debate and I will reflect on what has been said. I will of course reflect on the comments made by the Minister. I am grateful to him for analysis, which naturally merits further thought, but for the time being I beg leave to withdraw the amendment.

Amendment 208 withdrawn.

Police, Crime, Sentencing and Courts Bill

Lord Carlile of Berriew Excerpts

Lords Hansard - part one & Committee stage
Wednesday 10th November 2021 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I agree with the points that the noble Lord, Lord Paddick, just made. I also think that Mr McAra should be very grateful to my noble friend Lord Brooke for raising the points about the lack of a formal record of the cost of the incidents. I agree with the noble Lord, Lord Paddick, that it seems very unlikely that anyone would get a caution for this sort of offence. Even if it got to court, there would be an obligation on the sentencing court to consider compensation, because one has to consider this whenever one sentences an individual. Nevertheless, my noble friend has raised an interesting question and I look forward to the Minister’s reply.

[Lord Carlile of Berriew (CB)]

I hope I can be forgiven for intervening slightly out of order. I have been thinking as I listen to this debate about the very troubling case which the noble Lord, Lord Brooke of Alverthorpe, raised, but I am not sure that what he is looking for is germane to this clause. However, there is an issue of general principle about unrecovered, uninsured losses arising from a serious crime of violence which does not cause considerable personal injury.

If there is an injury that would attract damages of £1,000 or more, some ancillary costs are payable under the criminal injuries compensation scheme. This raises in my mind that perhaps the Government should look at something like the Pool Re reinsurance scheme, which applies to claims which are uninsured as a result of terrorism events. The underinsured or uninsured person can go to this entity, which has been set up jointly by the public and private sectors, and recover the cost of damages for what has occurred outside the insurance scheme. I suggest to the Minister, who is an extremely experienced lawyer, that perhaps the Government should look at the criminal injuries compensation scheme and the Pool Re scheme and try to produce something which would deal with quite a significant number of cases which probably do not involve a massive amount of money, but in which people who are not very well resourced suffer a great deal, and disproportionately, as a result of the kind of offence that the noble Lord described.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, this group of amendments, proposed by the noble Lord, Lord Brooke of Alverthorpe, seeks to require that reasonable steps be taken to obtain and take into account details of any financial costs incurred by the victim as a result of the offence when deciding on the conditions to attach to a caution and when deciding on the amount of the financial penalty.

I will begin with the particular instance that the noble Lord set out. Both he and the noble Lord, Lord Paddick, used the word “distressing” and I agree with that entirely. I would go further and say that it was appalling; it is a horrific set of circumstances and I am sure everyone in the Committee would share that approach. I extend deepest sympathies to Mr McAra. I am very pleased to hear that his local MP has been helpful and supportive; I was also pleased to hear that she is a Conservative, although one of the glories of our parliamentary system is that all MPs from all parties extend that sort of support to their constituents. It is very good to hear that the system is working.

I also tend to agree that this would be unlikely to be a caution case. I am hesitant to say any more, because prosecuting decisions are independent and a matter for the CPS. I defer in this regard to the experience of the noble Lord, Lord Paddick, but it sounds to me as though this would be more than a caution case.

The Bill states that both the diversionary and community cautions must have conditions attached to them. Those may include rehabilitation and reparation conditions, financial penalty conditions or conditions related to certain foreign offenders. I assure the noble Lord, Lord Brooke, that I give this amendment and the points that he made a sympathetic hearing, as he wanted, but I will explain why as a matter of principle we cannot accept it. This is not because we disagree with the point that underlies it but for the reasons which I will set out. The starting point is that Clauses 79 and 88 already provide for the authorised person to make reasonable efforts to obtain the views of any victim of the offence and take those views into account when deciding on the conditions to be attached to a caution. This includes obtaining their views on financial costs incurred and any decisions on seeking compensation.

Under the current cautions regime, the code of practice for conditional cautions makes clear provision for this in specifying that financial compensation may be paid to a victim. In addition, where the offending has resulted in damage to community property—I appreciate that in the case we have discussed the damage was to personal property—reparation may also take the form of repairing the damage caused, reparative activity within the community more generally or a payment to a local charitable or community fund, which might be more helpful if an offender does not have the financial means to pay. The current code also states that compensation for the victim should be prioritised ahead of other costs or financial penalties.

As is the case with the current code of practice for conditional cautions, the code of practice for the new diversionary and community cautions is the appropriate place to set out further detail on how the conditions attached to a caution may be decided. Again, that will include obtaining and considering any financial losses and requests for compensation. The code will be drawn up under the delegated powers in the legislation. We will consult widely, as the noble Lord would expect, and it will be laid under the affirmative procedure.

Consulting victims goes beyond just cautions. It is a key principle of the victims’ code, point 6.7 of which says:

“Where the police or the Crown Prosecution Service are considering an out of court disposal you have the Right”—


that is, the victim has the right—

“to be asked for your views and to have these views taken into account when a decision is made.”

As I have sought to explain, that will encompass the financial circumstances as well.

Finally, without wishing to be too particular on the drafting but just for the record, I point out that, although the parts of Amendments 177 and 186 relating to Clauses 81 and 90 share the same underlying intention, those clauses relate to financial penalties paid to a court, which are punitive and are not the same as the rehabilitative or reparative conditions, which I know are really the focus of the noble Lord’s amendment.

Police, Crime, Sentencing and Courts Bill

Lord Carlile of Berriew Excerpts

Lords Hansard - part one & Committee stage
Monday 1st November 2021 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

If I might attempt to answer the noble Viscount’s question, paramount importance is given to the interests of the child because evidence has shown that, where there is abuse of children and where mothers are imprisoned, you pass on criminality to a new generation. That is the distinguishing factor. I therefore very much hope that we can look at these amendments for the principle. I am possibly not as keen as others on the detail, for the reasons I have given, but we need to show that one of the fundamental principles of sentencing is to take into account, through the interests of the carer, the interests of the child.

[Lord Carlile of Berriew (CB)]

My Lords, I agree entirely with my noble and learned friend who has just spoken that there is a principle here that needs to be considered rather than the granularity of these amendments. Indeed, I would say to the noble Viscount that, although we should try to achieve the protection of all people who are vulnerable, you cannot do everything at once. It is the whole of the life of the child in front of them that is affected if a parent is in prison.

The right reverend Prelate moved these amendments eloquently. I will say, very respectfully, that I think she omitted one or two key elements. These may lead one to the conclusion that we do not need quite complicated amendments but can achieve her aims, which I share, by a simpler method that is more evolutionary in its process. I might perhaps raise a couple of specifics. First, the information that the right reverend Prelate referred to is sometimes simply not before the court. That is because legal aid does not now provide solicitors with the earning potential—and it is not a high earning potential—to go out and investigate the reality of a child’s position. This means that the necessary information may not get in front of the court at all.

I had a conversation some time ago with somebody who was working as a manager of excluded primary school children in one of the London boroughs. She told me that she often rang the solicitors for 11 year-olds right at the top of the primary sector, or sometimes when they had just moved from the primary sector, to ask if they were aware of certain aspects of the child’s life—and they had no idea. They do not have the resources to make those inquiries. Furthermore, when cases come before the court, it is nowadays very rare in the Crown Court for a solicitor to be there instructing counsel in such cases, and, in the nature of the profession and the fees payable, counsel may have received the brief only the night before, and it may be a very junior counsel. These are the practical issues that judges encounter all the time.

I want also to say something about judges; I have a family interest in this, which I will not go into in great detail, despite the urgings of my noble and learned friend Lord Garnier. It is this: judges should be given credit for understanding the problems that the right reverend Prelate raised; she perhaps did not quite get there. Judges, many of whom are mothers themselves, hear these cases and understand perfectly well. They do not need a statute to tell them that it is not in the interests of a child for that child’s mother to be sent to prison .They do everything they can—on the basis of the information they are given, which may give rise to the real problem—to ensure that, if at all possible, a woman who has primary caring responsibility for a child is not sent to prison.

[Lord Falconer of Thoroton (Lab)]

I apologise for interrupting. The right reverend Prelate’s Amendment 215 says:

“A court must make inquiries to establish whether the offender is a primary carer for a child”,


and, if those inquiries suggest that the defendant is a primary carer, then, according to the amendment, the court has to direct a pre-sentence report on the circumstances of the child. Does the noble Lord object to that burden on the courts?

[Lord Carlile of Berriew (CB)]

I do not object to that burden on the courts, but I am surprised that it has to be placed upon the court. My view is that that sort of report should be part of the process when a young mother, for example, appears before the court. Mechanisms already exist that can ensure that such information is given. I am saying that we can achieve the same purpose more simply—for example, by the use of the Sentencing Council, if it is asked to concentrate on these issues.

I simply add this. The last statistics I have seen for women in prison, for 2020, show that 3.4% of prisoners are women. This is the lowest percentage it has ever been, and it is continuing to fall because the courts absolutely understand what those who tabled these worthy amendments are saying.

When the Minister replies, I hope he may be able to provide reassurance that the ends of these amendments will be achieved but in a more flexible way that can evolve over time, rather than by slightly clunky statutory provisions that, in my view, should not be necessary. Do we really need an Act of Parliament to ensure that courts give proper account to the paramount interests of children, which my noble and learned friend referred to a few moments ago?

Assisted Dying Bill [HL]

Lord Carlile of Berriew Excerpts

2nd reading
Friday 22nd October 2021 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, I admire greatly many who have conscientiously proposed and supported this Bill and similar legislation over many years, but they must remember that this is their fourth attempt to introduce such legislation in recent years. On every occasion, there have been serious granular concerns about the safeguards provided in the draft legislation for the many particularly vulnerable people who could face the choice being offered. Therefore, it is my view that we are entitled to expect the proponents now to have dealt with all those matters. I am going to address just one legal matter that they have failed to address.

Clause 1 requires the consent of the Family Division of the High Court before suicide can be assisted. If you read it carefully, you see that tests requiring detailed and potentially complex evidential analysis are set out, which inherently raise the possibility of objections by family members, doctors and others. The Bill is silent as to whether one Family Division judge should hear these cases, or a group. One of the consequences of approval, as set out in Clause 4(4)(c), involves active euthanasia by a health professional who would

“assist that person to ingest … the medicine”.

The Bill therefore asks a Family Division judge to approve something that no judge has ever been asked to do since the abolition of the death penalty—namely, intentionally bring to an end the life of another person of full mental capacity and competence.

Have the judges been asked? There are but 20 Family Division judges; they have a heavy workload, much of it concerned with daunting questions of the welfare of children. They are busy men and women, of good conscience. I have heard no evidence at any stage of their opinions being sought, let alone analysed, whether through official channels or otherwise. Why have they not been asked, in a proper way? Why have we not been provided with any evidence of the supposed viability of the proposal?

Let us suppose that 25% of those judges objected to the jurisdiction on grounds of conscience, which would have to be respected, and that there were 1,000 cases a year—a very conservative estimate, given that legislation of this kind tends to create its own culture change, as experience elsewhere has shown. Each case would be bound to take two or three days before the court. In a sentence, the Family Division would be swamped by those cases; it would not be able to do anything else—and this is something that has been wholly and dangerously overlooked, even without asking those judges.

In my view, parliamentary Bills founded on such fragile safeguarding and analysis, especially after years of trying to produce acceptable safeguards, should really not be troubling your Lordships’ House.

Hillsborough: Collapse of Trials

Lord Carlile of Berriew Excerpts

Monday 14th June 2021 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, we will of course keep this point of law under consideration but not for the reasons the noble Lord gives, if I may say so respectfully. The Prime Minister has already confirmed that the Covid inquiry—if I can call it that—will be established on a statutory basis with full formal powers. That means that Section 35 of the Inquiries Act 2005 will apply. That makes it an offence to commit acts that tend

“to have the effect of … distorting … altering … or preventing … evidence”

from being given to a statutory inquiry.

[Lord Carlile of Berriew (CB) [V]]

Will the Minister confirm that the DPP himself advised on charges brought in the trial and on the surprising decision not to appeal the trial judge’s terminating ruling? Will the DPP follow the practice of publishing his advice in important cases? Will the Minister explain why alternative charges of misconduct in public office were not brought against all three defendants, as they could have been?

[Lord Wolfson of Tredegar (Con)]

My Lords, the CPS sought advice from senior Treasury counsel pre-charge. Decisions on appropriate charges were made after consideration of that advice. Those decisions were taken in 2017, predating the current director’s term of office. As far as misconduct in public office is concerned, that charge was not available for Mr Metcalf, the solicitor for South Yorkshire Police’s insurers. The allegations against the two officers were related closely to his conduct. Therefore, it was considered that the same charge against each was appropriate. The CPS did not appeal the decision because, having carefully considered it, it concluded there was not a proper basis to appeal to the Court of Appeal. As for the point about the director publishing advice, he does not sit under the Ministry of Justice, as the noble Lord will be aware, but I will pass that point on to the director, whom I note is appearing before the Justice Select Committee tomorrow.

Queen’s Speech

Lord Carlile of Berriew Excerpts

Tuesday 18th May 2021 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, I join in the congratulations to the noble Baroness, Lady Fullbrook, on her excellent maiden speech. With her wide experience, she will clearly be an asset to your Lordships’ House.

For a time I was privileged to be the president of the Howard League for Penal Reform. That and other experience, including my 50 or so years as a criminal lawyer, have left me completely unpersuaded that increasing sentences and the population of prisons in general, and filling an ever more challenged prison estate, achieves any public good whatever.

When I was in another place in the 1980s, many of us were horrified that the prison population had passed 35,000. That horror attracted people in all parties at the time. It has now more than doubled, without any obvious sign of the country facing less crime, whether serious or not. Is the United Kingdom a better place because there are now more than 80,000 people in prison? I confidently say no, and there is no intellectual basis for saying that it is.

I urge Her Majesty’s Government to focus not on building more prison cells but on creating more and constructive opportunities for offenders to achieve a lawful life without serving time. I commend strongly the work already done by the right reverend Prelate the Bishop of Gloucester, who spoke very eloquently in that regard.

I will add something that I and the noble Lord, Lord Ponsonby, agree on—that young offenders should be able to graduate out of their criminal records. We heard a wonderful speech earlier from the noble Lord, Lord Bird, who has been able to reach your Lordships’ House, which I suppose is some height of achievement, despite having had a record as a youngster. But most youngsters do not reach your Lordships’ House. They cannot even get a job because when they apply for a job—for example, in the public sector—their old prison record is available to those who wish to employ them. Should that really happen to a 30 year-old found guilty of possessing cannabis when he or she was 15 or 16? I think not and I am astonished that the Government have ignored this device over a long period.

I turn next to treason, which has not yet been mentioned in this debate, but does arise from the gracious Speech. The Government wish to restore the law of treason in some amended form. It has not been used since the conviction in 1946 of William Joyce—Lord Haw-Haw, as he was known, although he was not a Member of your Lordships’ House. The motive for reintroducing treason is completely oblique and disreputable and the Government must recognise this. It is to avoid—to circumvent—the necessity of proving a specific crime or criminal intent by foreign terrorist fighters, such as the likes of Shamima Begum.

I regard as extremely serious and reprehensible the decisions and actions of British people who become foreign terrorist fighters. The noble Baroness, Lady Stowell, mentioned a somewhat eccentric jury decision. It will be nothing compared with a jury faced with the option of convicting someone for treason who has been a foreign terrorist fighter. Indeed, I have heard it said—I may even have said it myself to juries over the years—that the most democratic thing most jurors ever do is serving on a jury. They are not going to let it happen in cases like that.

As a coda I will add this: both the noble Lord the Minister who opened this debate and the noble Baroness the Minister who will close it are very good listeners. I think we should listen to them. During the past year we have had the luxury of voting in huge numbers against everything, but we have seen the mandate the Government have. I urge your Lordships that we should now be responsible and go for the art of the possible, not the luck of the improbable.

Counter-Terrorism and Sentencing Bill

Lord Carlile of Berriew Excerpts

3rd reading
Thursday 11th March 2021 Lords Chamber

[Lord Carlile of Berriew (CB) [V]]

My Lords, I echo the verbal applause given so eloquently by the noble and learned Lord, Lord Falconer of Thoroton, for the contribution and consultation given by Ministers. I have one regret about the Bill, which is that the potential role of the Parole Board is not recognised properly in it. However, with some confidence I express the hope that, outside the time pressures to complete the Bill in this Session of Parliament, Her Majesty’s Government will talk to the Parole Board at the most senior levels to ensure that best use is made of the board’s skills and of its long and successful rollout of relevant training on terrorism matters to its members. The Government should not forget that the Parole Board holds a high degree of accountability in public confidence.

I support the proportionate use of polygraphs, and I am heartened to hear that the Liberal Democrats have become converted to that use. I support it as one, but only one, of a larger set of psychological and neurological tools in assessing the risks presented by terrorist prisoners if they are released. I support the extension of TPIMs to the standard formerly available through control orders. When I was Independent Reviewer of Terrorism Legislation, I repeatedly opposed the dilution of those orders in 2010-11 by the coalition Government, and I only regret the passage of 10 years to reach today’s position. I recognise with acclaim the work of my noble friend Lord Anderson of Ipswich on raising the length and standard of proof of TPIMs to a sound and realistic level. What I believe is the now achieved compromise, the limit of five years, is acceptable, but as long as prosecution always remains the preferred option.

I could but will not say much more, other than recognising that your Lordships’ House has left a better Bill than we started with. Of course, in the years to come, we shall scrutinise the operability of the Act and not hesitate to suggest further changes.

Counter-Terrorism and Sentencing Bill

Lord Carlile of Berriew Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 26th January 2021 Lords Chamber

I understand that Mr Hall’s review announced yesterday will clearly be important in updating our understanding of the challenges and that a government strategy would clearly be informed by that and, to some extent, the timing of it. However, it is not credible nor right that the Government should seek to extend sentences for terrorists without a parallel determination to improve rehabilitation and deradicalisation programmes. I very much hope that the House will support this. I beg to move.

[Lord Carlile of Berriew (CB) [V]]

My Lords, I give my strong support to both amendments in the group: that moved by the noble Lord, Lord Hunt of King’s Heath, and the one that will be spoken to later by my noble friend Lord Ponsonby of Shulbrede.

I want to start by thanking the joint strike force on the Government Front Bench—the noble Lord, Lord Wolfson, and the noble and learned Lord, Lord Stewart—who have brought a refreshingly clear and responsive attitude towards debates on quite complicated legal issues. I can say of both of them that their engagement with Members has been exemplary; the noble Lord, Lord Wolfson, has specialised in short, 20-minute conversations that cover everything in a relatively short time. I just hope that the noble Lords will not get over the open consultation they are giving to other Members of your Lordships’ House. It is very welcome.

I too want to reflect on what was said by the Independent Reviewer of Terrorism Legislation, Jonathan Hall QC, yesterday. Obviously, he is very concerned about the efficacy, if such efficacy exists, of deradicalisation programmes in prisons. I am given to understand that the successor to my short-lived appointment as Independent Reviewer of Prevent will soon be appointed. I wonder whether this afternoon, as a piece of instant gratification to us all, the noble and learned Lord, Lord Stewart, in replying to this debate may be able to tell us who that is going to be and announce the appointment. I am given to understand that it may literally be imminent.

During my time in that role, just as I came to the end of it as a result of an unwelcome judicial review, I was about to start the sort of examination that has been announced by Jonathan Hall. There is a background to it. A whistleblower came to see me from the prison where Usman Khan, the Fishmongers’ Hall terrorist, was held. On my advice, that person immediately spoke to officials at the Home Office and the Home Office was made aware of the problems. It is clear that deradicalisation programmes in prisons are not working at all well. Maybe some are working but nobody knows which ones are working and on whom.

I draw your Lordships’ particular attention to proposed new subsection (2) in Amendment 35 from my noble friend Lord Ponsonby, which sets out six criteria that need to be examined to see how these programmes are working. When I was the Independent Reviewer of Prevent, I had a review carried out of all the academic literature on Prevent, including these programmes. It exposed that no real measurement is being made of such programmes—no surprise given that the Fish- mongers’ Hall terrorist was thought to have been totally reformed. Before the programmes are put in place, they need to be carefully analysed and verified by proper, academic and, where possible, neurological research in which polygraphs are not an answer in themselves but a legitimate neurological tool as part of the armoury of an assessor.

I hope that the Government will recognise that these two amendments raise some serious issues that require the closest of examination.

[The Deputy Chairman of Committees (Baroness Henig) (Lab)]

The noble Lord, Lord Ramsbotham, has experienced computer problems, so we must move on to the noble Baroness, Lady Hamwee.

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[Lord Faulks (Non-Afl) [V]]

My Lords, the Bill has been broadly welcomed, in light of the Fishmongers’ Hall and Streatham attacks, by noble Lords across the House. One could add to that sad litany of attacks the murder of three men in Forbury Gardens, Reading. Noble Lords accepted the need for legislation such as this with something of a heavy heart. There have been anxieties expressed in Committee today and at Second Reading about some aspects of the Bill. I particularly noted the comments at Second Reading of the noble Baroness, Lady Prashar, and the noble Lord, Lord Ramsbotham, who described himself as “horrified” by the reduced role of the Parole Board.

I share, I am sure, with all noble Lords very considerable respect for what the Parole Board does. Decisions about serious offenders are particularly challenging. The boards, which have enormous experience, are given a great deal of material to make their decision, which they do with scrupulous care. I do not see that the purpose of the Bill in any way excludes or marginalises the board. The purpose, surely, is to ensure that serious terrorist offenders spend longer in prison and longer on licence, and it is that fact that removes the Parole Board from the picture, not any lack of respect for what it does.

I listened carefully to what the noble Lord, Lord Anderson, said about the statistics on reoffending by terrorist offenders who are released, and I am sure that he is absolutely right to make that point. I would add just one gentle caveat, in the sense that a terrorist who commits another offence, maybe of the most extraordinary gravity, is not comparable to, say, a burglar who breaks into a house repeatedly, serious though that can be.

The offenders who will no longer be susceptible to review by the Parole Board will have their licence condition, when they are released, set by prison governors on behalf of the Secretary of State. As I understand their position, prison governors will be informed by the probation service, the multi-agency public protection panels, and presumably by information gathered about the prisoners in the prison or prisons where they have served their sentence, which will be something of an incentive for them to behave well. Prison governors have much experience of this process.

The Bill is certainly concerned with the protection of the public. Keeping the most serious offenders in prison for longer and removing their opportunity for early release is what causes the reduced role of the Parole Board. The removal of its involvement for what I understand is likely to be a very small cohort of 50 or so—perhaps the Minister can help—seems to be justified in the public interest.

[Lord Carlile of Berriew (CB) [V]]

My Lords, I agree with the noble Lord, Lord Faulks, that we are dealing with the determination of licence conditions in the context of terrorist prisoners having been sentenced to longer sentences. However, I agree with the noble Baroness, Lady Prashar, who has very considerable and relevant experience, and with my noble friend Lord Anderson of Ipswich that the Parole Board has an important potential role to play in these cases.

It is said that the determination of licence conditions can adequately be dealt with by prison governors. That may be true in some cases, but prison governors do not have the range of expertise, the judicial discipline and the clear legal accountability of the Parole Board. It is therefore my view that this task should be undertaken by the Parole Board, which has all the relevant qualifications to do it. If the Parole Board was placed in that position it would command the confidence of the public. Indeed, those who believe that too much control is being taken of prisoners by government would be able to see that there was a thoroughly independent, accountable, quasi-judicial organisation dealing with these cases empirically and on their merits.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, this amendment incorporates significant changes to Clause 27. In particular, as pointed out by the noble Baroness, Lady Prashar, with all her experience of the Parole Board, and by other speakers, the suggested replacement for Clause 27 would preserve the Parole Board’s role. I regard the amendment as entirely helpful on the basis that, with some exceptions, the Parole Board has had an extremely good record of balancing the safety of the public with the need to rehabilitate offenders in society.

I will largely cover what I have to say on the principles involved in this amendment in my part in the next group. However, it seems to me that the noble Baroness, Lady Prashar, made the very important point that Clause 27, as drafted, involves automatic release on licence without any assessment of the safety of that release by the Parole Board. I accept that prison governors would be involved, but that, in my view, is no substitute.

In summary, it is my view that this amendment would be an entirely acceptable way to address the problems with Clause 27 as drafted, the most important of which are its removal of the involvement of the Parole Board from the release process altogether and the concomitant results that offenders under Clause 27 would be automatically released, less likely to be rehabilitated and also more difficult to manage while in prison.

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, I welcome the noble Lord, Lord Wolfson of Tredegar, to our House. It is brave of him to start his parliamentary career in your Lordships’ House by going up against so many noble and learned Lords. It is going to be absolutely fascinating watching that.

I congratulate the noble Lord, Lord Ponsonby of Shulbrede, for bringing this amendment. I wish I had signed it, because it is very good. It is about whether we want to rehabilitate prisoners and bring them back into society or just want them to rot away and hope they disappear.

I am sure noble Lords will know that the new independent reviewer of Prevent has been announced. It is William Shawcross, whom I do not know at all. As somebody who is a critic of Prevent—I have seen the good and the bad in it—I would say that the optics are not good. Having a white man from Eton and Oxford is possibly not the message that this Government should be sending out when you have critics of a programme that could have been fantastic.

I saw one case of a Prevent programme—in Birmingham, I think—where a young man had been recovered, or rehabilitated, from a radical programme. He had been a right-wing activist, but he responded to being found a job and a house. I am not saying it is always this easy, but rehabilitation was based on taking him out of poverty and deprivation. That is something that we do not see enough of.

However, to return to the amendment, it would require the Government to review the situation and report to Parliament, and I support it very strongly.

[Lord Carlile of Berriew (CB) [V]]

My Lords, the town of Tredegar is noted for its town clock, which was erected, or at least its plinth was, as a result of funds collected at a bazaar. I believe that information to be correct—and from my position in my home I think I can see the noble Lord, Lord Wolfson, nodding in agreement with those facts. The Tredegar clock is always regarded as a symbol of the stability of the town—a town that has been through thick and thin, having been a place where coal was mined and steel manufactured.

The Parole Board has become one of the pillars of our prison system, and the board is seen as being as reliable as that town clock as it has developed over the years. I therefore join the noble Lord, Lord Ponsonby of Shulbrede, in being really rather determined to persuade Ministers that they should take another look at the role of the Parole Board in the sentencing and licence provisions provided for by this important Bill, which I support in principle, as someone who believes that the sentences for terrorism should be long but subject to a proper, just and reasonable form of review that gives reasons if it finds against a prisoner.

I am happy to support the amendment tabled by the noble Lord, not for its content but for the principle that it raises, and I invite the Minister to reflect accordingly.

[Lord Paddick (LD) [V]]

My Lords, I apologise for any inconvenience caused by my noble friend Lady Hamwee and me not speaking in the last group, where our names were included in the speakers’ list in error.

The amendment in the name of the noble Lord, Lord Ponsonby of Shulbrede, addresses the serious question of the impact on prisoners who have no prospect of being released early or of being released at all, something that the noble Baroness, Lady Prashar, spoke about in an earlier group, as did my noble friend Lord Marks of Henley-on-Thames.

Some indication of the potential impact comes from a report in the Times, dated 20 January 2021, on inmates at the only remaining isolation unit for extremist prisoners in Her Majesty’s Prison Frankland. These isolation units were designed to keep the most dangerous ideological prisoners away from the general prison population so that they could not radicalise vulnerable inmates, as other noble Lords have mentioned in today’s debate. One of those units was mothballed before it was opened, another is empty, and the one at Frankland houses five prisoners out of a capacity of eight. There are currently about 200 terrorist prisoners in the UK.

According to the Times, a report by the independent monitoring board at the prison says that inmates in the unit have become more entrenched in their views, that they are refusing to co-operate or to engage in activities and programmes—except for the gym—and that they are distinguished from other prisoners by a lack of progression. They display antagonism and hostility to staff, with one of the prisoners responsible for a serious assault on a prison officer in the centre.

Locking people up with no incentive to behave or co-operate is likely to be counterproductive, and the Times report supports that assertion. We support the amendment.