Baroness Bennett of Manor Castle
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Lord Hope of Craighead (CB)
My Lords, I could not possibly improve on the speeches that we have heard so far, but my reason for speaking is that I think I am the only Peer here with previous judicial experience to have actually conducted a statutory resentencing exercise. Perhaps I could explain how that came about and what it meant for me.
When I became the Lord Justice General of Scotland —that is, the Chief Justice—in 1989, it was not the practice of judges to state a tariff when imposing a life sentence, whether discretionary or mandatory; that was simply open-ended. It was my job, as Chief Justice, to advise the Secretary of State when the time had come for the prisoner to be referred to the Parole Board for consideration for release. It was done in a system whereby civil servants sent the papers to me and I then had to conduct a paper exercise and, in effect, tell the Secretary of State how much longer the prisoner would have to serve before it was time for him to be released.
It was a different world, and the prisons were not crowded. Usually, they came to me when the prisoner had served about 11 years. My advice was to extend it by three or four years, so that they were being referred to the Parole Board quite early compared to what happens today. It was a paper exercise and I found it extremely difficult. There were about 50 life prisoners I had to consider. I was provided with enormous files, which described their conduct in prison, as well as the original offence itself. In order to equip me to understand them, I visited all the prisons in Scotland except one, which was too far away. I also spent several sessions attending the Parole Board to understand how it worked. I had to equip myself fairly well to understand the job I was doing.
About three years into my office, the law was changed. In the interest of transparency, it was decided that the Chief Justice in England and Wales and me in Scotland should establish a tariff. That brought to an end the system I was using, because, from then on, judges were going to produce a tariff when they passed their first sentence. That was a system that I worked with for a while and had to give up.
It is with that background that I am extremely interested in the very well-crafted amendment that the noble Lord, Lord Woodley, has advanced, supported by the noble Baroness, Lady Jones. I have looked at it rather carefully and it seems that it requires the resentencing judge to look at four issues. First, what should the notional determinate sentence have been for the offence or offences which were committed, thereby identifying the tariff which would be applied for the purposes of reference to the parole board? Secondly, there is the additional point of whether a hospital order should be substituted, which is a very important safeguard in working through the system that he is describing. Thirdly, if the prisoner might appropriately have received a life sentence, is there a risk of committing a further serious offence resulting in serious harm if the prisoner were released; and, fourthly, if that is the case, should the IPP sentence simply be confirmed?
As I say, it is very carefully crafted and it has public safety in mind, as well as the interests of the prisoner. However, I think we have to be quite careful as to what this would mean for the resentencing judge. He or she would need to be equipped with a great deal of information, not only about the original offence but about what has happened to the prisoner since then, considering whether a hospital order is required or, if it is a life sentence, whether the safety of the public requires that the IPP sentence be confirmed. The Minister might also like to bear in mind the workload of the judges when considering what to make of this proposal. I suspect that the volume of material would be very considerable, and therefore judicial time needs to be found for that evidence to be assimilated and understood, and then a decision taken.
What is not clear at the moment—I think this is for the committee that the noble Lord, Lord Woodley, has suggested we set up—is how the exercise would be conducted. I assume that it is going to be a paper exercise rather than a hearing in court, but that is to be determined. I assume that it would require a written decision to be given—that was not required of me at that time, but I suspect that nowadays a written decision would need to be given—and of course there is always the risk of appeal or judicial review. So the decision-taking exercise has to be very carefully conducted.
In my case, in dealing with the cases I had to deal with, I had to give up two weeks of judicial time to conduct the exercise which I had to carry out. One has to assume that at least one day of judicial time per case would be needed here, because, otherwise, the decisions would be open to being set aside because they have not been properly considered. The whole point of the amendment from the noble Lord, Lord Woodley, is that the safety of the public is being protected by the care which would be taken in this exercise. So one has to bear in mind not only the nature of the exercise but the time that the judiciary would have to commit to it.
I am not suggesting that this is not a very good way of finding an answer to the problem we are faced with. However, if the Minister is not inclined to adopt it, I would very much adopt the proposal from the noble and learned Lord, Lord Thomas of Cwmgiedd, and, if that does not succeed, there is of course the amendment from the noble Lord, Lord Moylan, which I would also support.
I hope that what I have said has been of interest, to give some background to the amendment from the noble Lord, Lord Woodley, which has my support. I suggest that it has to be seen in its full context and what it really means for the judges who have to conduct the exercise.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a pleasure to follow the expert contribution of the noble and learned Lord, Lord Hope. My noble friend Lady Jones of Moulsecoomb signed Amendment 89 and I would say that that judicial time, if it is necessary, needs to be allocated. Society and the Government have a responsibility to people whom we have put in this impossible situation to find a way out and that amendment implements the Justice Committee’s recommendations.
It is a great pleasure to follow all the noble Lords who have taken part in this debate thus far, many of whom are veterans, as the noble Lord, Lord Blunkett, said, in trying to sort out this mess. I did not speak on this group at Second Reading and I apologise for that. However, as I said, my noble friend Lady Jones of Moulsecoomb signed Amendment 89. She very much regrets that she has to be somewhere else at the moment and so your Lordships’ House gets me instead. I did speak on the issue of IPP prisoners at Second Reading of the Victims and Prisoners Bill in 2023. I said then that it was an extremely knotty and long-running problem. That is what we have heard and what has been reflected here.
However, we can see from that debate in 2023 and today the power and force of the contributions. The noble and learned Lord, Lord Thomas, someone perhaps not usually given to such language, spoke about “blood on our hands”. The noble Lord, Lord Woodley, spoke about “creating gulags”. We abolished this sentence in 2021 because it was wrong, yet the people subjected to it are living with its consequences every day and we have a responsibility to sort this out. There is also the practical point that, if the Government want to reduce the prison population, here is a group who should be at the forefront of looking at how to do that. Instead, far too many of them are in prisons that are wholly unsuited to their progression—30%, according to the latest figures. We cannot claim to be serious about reducing the prison population while leaving this situation to fester. There are other amendments in this group that take us some way forward, but Amendment 89 is the best one. This is the bare minimum of justice for a relatively small group of people who were handed a sentence that Parliament has already acknowledged was a mistake.
I will make one final reflection. What is behind this tragedy is a reflex that we have seen from far too many politicians over far too many years. Under pressure, the reaction is, “Lock ‘em up” or “Lock ‘em up for longer”. That is a reflex that we cannot allow to run loose in future.
Baroness Ludford (LD)
My Lords, I will say a brief word and apologise that I have another commitment in 15 minutes, so may not hear the Minister.
I back up what all speakers have said this afternoon—in particular the passionate and convincing words of the noble and learned Lord, Lord Thomas. We all believe that the Minister’s heart is in the right place and we need to encourage him to go back to anyone who is putting constraints on what he can do and ask them to read the speeches from this afternoon. As the noble and learned Lord, Lord Thomas, said, the state has recognised other cases—the Post Office Horizon scandal, infected blood, to some extent Hillsborough, and others—where it has created a major injustice and has tried to make up for those miscarriages. This is not a technical issue, it is an ethical issue, and we are all begging the Minister to deliver the justice that has been called for from all sides of the House this afternoon.
Baroness Bennett of Manor Castle (GP)
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?
Baroness Bennett of Manor Castle (GP)
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.
Lord Marks of Henley-on-Thames (LD)
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.