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Coroners and Justice Bill

Volume 712: debated on Wednesday 15 July 2009

Committee (8th Day) (Continued)

Clause 114 : Monitoring

Amendment 190

Moved by

190: Clause 114, page 71, line 38, at end insert—

“but nothing in this subsection shall entitle the Council to comment on the sentences imposed by individual judges”

I can deal with this very shortly, mainly because I have left my notes behind. The amendment may seem unnecessary, but it may be more necessary than at first appears. The reason for this is the experience that the United States has had in relation to sentencing guidelines of this kind.

The United States has had sentencing guidelines for many years—since 1984, I think—but not long ago, in about 2002, the Prospect Act, I think it was called, was passed, under which it was possible for Congress to monitor the performance of certain courts in the United States to see whether they were consistently sentencing within the guidelines or whether some courts were sentencing consistently below the guidelines. That is very similar to what is proposed in the clause that we are now discussing.

Certain remarks were made by a great United States judge, Chief Justice Rehnquist, drawing attention to the inherent danger in this approach to sentencing. I shall read two or three passages from the remarks that he made on 5 May 2003, which he repeated in his last end-of-year report to Congress in 2004. He said:

“The second topic I would like to address is the recent efforts by some in Congress to look into downward departures in sentencing by federal judges, in particular our colleague Judge James Rosenbaum. We can all recognise that Congress has a legitimate interest in obtaining information which will assist in the legislative process”.

We all agree with that. He continued:

“But the efforts to obtain information may not threaten judicial independence or the established principle that a judge’s judicial acts cannot serve as a basis for his removal from office”.

Later he said:

“The new law”—

the Prospect Act, although I cannot remember its exact name—

“also provides for the collection of information about sentencing practices employed by federal judges throughout the country. This, too, is a legitimate sphere of congressional inquiry, in aid of its legislative authority. But one portion of the law provides for the collection of such information on an individualized, judge-by-judge basis. This, it seems to me, is more troubling”.

Finally, he said:

“There can be no doubt that collecting information about how the sentencing guidelines, including downward departures, are applied in practice could aid Congress in making decisions about whether to legislate on these issues. There can also be no doubt that the subject matter of the questions, and whether they target the judicial decisions of individual federal judges, could amount to an unwarranted and ill-considered effort to intimidate individual judges in the performance of their judicial duties”.

In an age when one can obtain information about almost anything either under the Freedom of Information Act or through other means, it worries me that it might become possible for statistics to be created about how individual judges have performed—whether above or, normally, below the guidelines. If that became possible, it would be a serious interference with the independence of judges. It would intimidate them from performing the function that they are there to perform. That is the danger. The purpose of this amendment is, so far as it is possible, to obviate that. I beg to move.

I agree with the amendment put forward by the noble and learned Lord, Lord Lloyd of Berwick. I am concerned that one of these days the sentencing council might be under some pressure, particularly from press reporting. It might have to respond to that in a way that is similar to the problem that Chief Justice Rehnquist pointed out in that important passage read by the noble and learned Lord.

Amendment 191 is mixed with this. We spent some time before the dinner break on consistency and its importance. Here is an area of obvious inconsistency: the non-judicial disposal of cases, ones that used to go to the magistrates’ court and are now being dealt with by the police and prosecutors and never get to court. It is estimated that anything up to 55 per cent of all cases are not ever getting to court. There is a real danger of lack of consistency between police forces or prosecutors in different parts of the country.

Amendment 191, in my name and the names of the noble Earl, Lord Listowel, and the noble Viscount, Lord Tenby, proposes that the council should be able to monitor what is going on on the ground in creating out-of-court disposals, fixed penalty notices, penalty notices for disorder and conditional cautions. At the end of the day, somebody who accepts one of these has a criminal mark against them for the rest of their lives, particularly for certain circumstances such as dealing with children. I suspect a conditional caution would be enough to come within the vulnerable persons legislation for being on the register.

It is important that there should be some review of the way in which the police and prosecutors—the CPS—deal with people who never actually get to court. There should be some recognition that this is going on to a large degree and there should be some monitoring. The only organisation that could properly monitor it would be the sentencing council. I appreciate that this might give it a fairly large extra duty, but it is highly desirable that the police and prosecutors should know that the way in which they are working in one part of the country may be wholly different from the way in which they are working in another part. As the Government are so rightly concerned with consistency in court, they ought also to be concerned with non-judicial disposal out of court.

I follow my noble and learned friend in supporting Amendment 191. Indeed, the Minister of Justice has said:

“For courts to work in the interests of communities, the justice they dispense must be open and visible”.

All sentences imposed are open to public scrutiny and a matter of public record. However, there is an increasing trend for the police and prosecution to use out-of-court disposals, as my noble and learned friend has said. Data collected by the Magistrates’ Association show that there is serious inconsistency in the use of such disposals, a lack of proper recording and misuse for inappropriate offences. These disposals are not subject to public, judicial or any other type of scrutiny.

The Justice Secretary has also said:

“Open, visible justice, is therefore a means of ensuring judicial accountability through professional and public scrutiny. It gives legitimacy to public institutions; increasing understanding and dispelling myths about the ways in which they operate”.

The police and Crown Prosecution Service are such public institutions, and should be subject to proper record and scrutiny of how they use these disposals. I therefore look forward to the Minister’s response.

I shall speak to other amendments in the group, Amendments 191ZE to 191ZG. Amendments 191ZE and 191ZG are essentially probing amendments. We wondered why “demand” was used in relation to prison places and “resources required” in relation to probation provision and youth justice services. The former sounds more imperious and as if it is more likely to be provided. Indeed, that is the expectation, as we have never reached a position in which our prison places have been officially declared as full, however much we may have been above the certified normal accommodation. There is a far greater need for resources for probation and youth justice services, for which the demand is great and the provision far below what is needed. Is there an assumption that, whatever the demand, prison places will be met and the rest can go hang? If that is the case, it is exactly the opposite of what it should be, in terms both of need and of justice. Will the Government be so kind as to explain what is meant in that subsection?

Amendment 191ZF is another probing amendment. Clause 118(1) says:

“This section applies where the Lord Chancellor refers to the Council any government policy proposal, or government proposal for legislation, which the Lord Chancellor considers may have a significant effect on one or more of the following”.

This is followed by the list including,

“demand for prison places … resources required for probation provision … resources required for … youth justice services”.

The clause does not make it a duty for the Lord Chancellor to refer such matters to the sentencing council. It does not even make it a permissive power, by saying “it may refer”. Why was it drafted in this way and what effect will it have on the actions of the Lord Chancellor in referring such matters to the council? This is interesting, in that potentially it implies challenges to government proposals for legislation in relation to effectiveness and a connection between proposals for legislation and how they may work, which would be a most constructive departure.

I shall speak only on Amendment 190 in the name of the noble and learned Lord, Lord Lloyd of Berwick. I agree fully with the noble and learned Lord and with the noble and learned Baroness, Lady Butler-Sloss. It seems rather worrying that the council might be able to move on and comment on individual judges. I am sure that the Minister will be able to assure us that we have missed something in the Bill that makes it clear that they cannot comment on such things. I look forward to an assurance from him that that is the case.

This group of amendments and, indeed, the next two groups deal with the functions of the council in relation to monitoring and making assessments of the impact of sentencing, sentencing guidelines and government policy on prison, probation and youth justice. These functions are contained in Clauses 113 to 118.

The Government believe that these functions are an important development. The Gage working group identified a key role for the council in making these independent assessments to improve clarity and understanding about sentencing and to assist the Government in their planning to meet the demand for prison places, probation and youth justice services.

We believe that an independent scrutiny of the impact of sentencing guidelines and of government policies and legislation is an important development in the way we deal with penal policy. It is a role designed to increase transparency around the impact of changes in criminal justice policy and legislation.

On Monday when we considered whether the council needs statutory purposes, the noble and learned Baroness, Lady Butler-Sloss, suggested that we might not need Clauses 113 to 115. With the greatest respect to her, we disagree. We believe that the new duties are so important that the Bill should spell out exactly what is required and avoid any confusion between the respective roles of the council, government and Parliament.

Amendment 190 of the noble and learned Lord, Lord Lloyd of Berwick, supported by the noble Lord, Lord Henley, and the noble and learned Baroness, Lady Butler-Sloss, deals with the council’s duty to monitor the operation of sentencing guidelines. The amendment seeks to ensure that the monitoring duty does not entitle the council to make comments on individual sentencing decisions. I understand the intent but we do not believe that this amendment is necessary, following changes already made to Clause 114 in the other place. The provisions of Clause 114 do not refer to individual sentencing decisions. They refer to the operation of guidelines and to the frequency with which courts depart from guidelines, not to the decisions in individual cases.

It is clear that the consideration of the legitimacy of a sentencing decision is for the Court of Appeal and not for the sentencing council. I have no doubt that the sentencing council, the majority of which will be made up of judicial members including members of the Court of Appeal, will have no difficulty in recognising the division of functions between monitoring the frequency of departures from guidelines and the legitimacy of that individual sentencing decision. I hope that that will reassure those who support that amendment. Our belief is that it is unnecessary.

Amendment 191 was spoken to by the noble Earl and the noble and learned Baroness, Lady Butler-Sloss. It seeks to add to Clause 114 an additional duty on the council to monitor the operation of, and comment on, the use of out-of-court disposals, such as penalty notices for disorder and conditional cautions. I cannot accept the amendment. Let me explain why. First, Clause 114 relates to the monitoring of “sentencing” guidelines. Out-of-court disposals are by their very nature not sentencing decisions. Indeed, penalty notices involve no admission or finding of guilt and fall outside the functions conferred by this Bill on the sentencing council. That is why they are not covered by sentencing guidelines.

Secondly, and with slightly more comfort to the noble Earl, I suggest that the clause is unnecessary. This is because Clause 117 already places a duty on the council to consider and report on non-sentencing factors, some of which are included in the Bill, which could have a significant effect on the resources needed to give effect to sentences imposed by the courts. Although this would be a matter for the council, I suggest that changes in the use of non-court diversions could be a factor and indeed are likely to be a factor that the council would wish to consider in its report under Clause 117.

On the amendments spoken to by the noble Baroness, Lady Linklater, I can, I hope, please her to some extent. Without making any promises, it seems to me worth looking again at the wording she objects to in Amendment 191ZE, and the parallel wording in Amendment 191ZG. Without making any promises at all, if the noble Baroness withdraws her amendments tonight, I am prepared to take them away and look at them again. It may be that we think that we have the best form of words already. However, she has persuaded me that it is worth looking at again.

She has not persuaded me, alas, on Amendment 191ZF, which would convert the discretion conferred on the Justice Secretary to refer particular policies and legislation to the council into a duty to do so, so that he must refer any policy or legislation that could have a significant impact on resources. The committee will be only too aware of the volume of legislation that Parliament considers. Most legislative changes are unlikely to have a significant impact on correctional services. We have to ensure that the council is not overburdened in carrying out unnecessary assessments.

The discretion of the Justice Secretary to refer some policy and legislative proposals to the council is meant to allow this new duty for the council to be as practical as possible. That is why the Justice Secretary acts as a single point of reference for the whole of the Government and why he exercises his discretion only to refer policies and legislation that are likely, from the information he has, to have an impact on prison and probation resources.

Government departments will continue to make impact assessments of policies throughout the policy development process. Those assessments will inform the Justice Secretary in deciding whether a policy is likely to merit reference to the council either because it will clearly have a significant impact or where those assessments have highlighted potential difficulties in making accurate assessments of what the impact will be.

I hope that it will reassure the noble Baroness if I also point out that there is nothing to stop the council reporting on policies and legislative changes under Clauses 116 and 117 when it makes assessments of the impact of sentencing and non-sentencing factors.

I thank the Minister for his replies. I am glad that he is able to accept one element. In the mean time, I will not be moving my amendments.

Lord Ramsbotham: On behalf of my noble and learned friend, who has been called away on important domestic business, I beg leave to withdraw the amendment.

Amendment 190 withdrawn.

Amendment 191 not moved.

Clause 114 agreed.

Clause 115 : Promoting awareness

Amendment 191ZA

Moved by

191ZA: Clause 115, page 72, line 10, leave out “may” and insert “must”

Amendment 191ZA refers to a requirement for the council to promote matters relating to sentencing, thereby encouraging greater understanding as well as information; Amendment 191ZB refers to the inclusion of the words, “custodial and non-custodial” sentences. These are all logical extensions of our previous amendments, which I have spoken to at greater length earlier.

Amendment 191ZD and the provision that we wish to insert, which we originally discussed under the third purpose of the Bill, is outlined here in the briefing. The role of the council must not only be to promote awareness. The council should have a new duty to extend and develop its role to go beyond simply providing and publishing information when it sees fit. It should have a specific educational, as well as informative, role, which would involve active engagement with the public. This has real possibilities for closing the gap between the system and the public for the first time, and enormous potential for and importance in demystifying and communicating the realities of the sentencing process, as well as promoting the Government’s desire for transparency. This is much more than just producing the occasional report which is likely to be destined to lie on a shelf. It involves reaching out to the community.

We have already discussed how the public are systemically misinformed about sentencing practices and believe that the courts are much more lenient than they actually are; that sentencers are too soft; that judges and magistrates are out of touch in their courtrooms; that courts are unlikely to use prison for serious crimes such as burglary, robbery, rape and so on. Inaccurate media representations of sentencing, such as I read out earlier, feed into public misconceptions.

The amendment offers a real opportunity to correct these misconceptions. For this to come from the council itself would carry with it the authority that it uniquely has about what it does and how it does it. This role is not totally unique, as other councils have held it in other parts of the world, but it would be quite new to us.

They key thing is the element of real engagement with the outside world, which could take a number of forms but would essentially involve representatives of the council—or council members themselves, which would be best of all—going out and about in the community and holding, for example, “Any Questions?”-style meetings, seminars or town hall events to communicate what they actually do, while getting feedback from the public. It would involve developing and implementing a public information and education strategy, targeting all sectors of the population and the mass media. It would, of course, be a challenging task, but commensurate with the importance and significance of the opportunity.

I have had the experience of organising a comparable series of meetings around England between sentencers and other agencies, notably the Probation Service and other providers of programmes for offenders. This was during the course of the Rethinking Crime and Punishment initiative that I chaired for seven years. All I can tell your Lordships is that the results were like an epiphany—in this case for both the judges and those that they met and talked to. It opened their eyes—and these were largely professionals—to the realities of what was available as disposal to them in their own patch on the one hand, and gave insights into how the judges thought and worked on the other. It offered a chance to discuss the issues of common concern and did much to promote understanding and confidence all around.

This proposal offers something not dissimilar for the wider public: to hear from sentencers and have their eyes opened. Another, similar programme now runs all over the country, organised by the Magistrates’ Association, in which magistrates and probation officers do regular presentations to local groups about what they do inside and outside court, using real-life examples. It is called Local Crime, Community Sentence and, for the first time, the public get a real insight into what is being done in their name and the name of justice. They are also invited to participate in the decision-making exercises. This was also started as part of my Rethinking Crime and Punishment initiative; I promise Members of the Committee that there was and is a lot of rethinking. It is now so well established that there are regular award schemes among the different areas each year, run by the Magistrates’ Association, for the best groups. It is really impressive.

I have expectations that the council members would be able to do something similar and equally well. It has now become a necessity. I do not need to explain to the Committee that, with public misunderstanding so extensive and confidence in the criminal justice system as low as it is, something urgently needs to be done. The sentencing council will be uniquely well placed to start a process of communication and education for its own, as well as for the community’s, sake. I really hope that on this occasion the Government have ears to hear. I entreat them to take the amendment seriously. I beg to move.

This group of amendments relates to the duty on the council to promote an awareness of matters relating to sentencing. Amendment 191ZA changes the requirement on the council so that it “must” promote awareness rather than that it “may” do so. It is worth noting that there is a distinction between subsections (1) and (2) of Clause 115. The duty on the council in Clause 115(1) means the council “must” publish information on sentencing whereas Clause 115(2) provides that the council “may,” promote awareness of matters relating to sentencing. This difference is deliberate. The first is a straightforward duty to publish sentencing data. The promotion of awareness is, however, a much more abstract concept and it is, in our view, less appropriate to tie an independent body to such a statutory duty.

The Government recognise the importance of promoting an awareness of sentencing issues. We also recognise, however, that the council’s central function is to produce guidelines and to make assessments of the impacts of those guidelines. This will be a significant piece of work. The primary role of the council in setting guidelines means that there is—in fact, there has to be—a significant judicial membership of the council. We should not seek to compromise the independence of those judicial members by placing them in a position where they could be considered to be, or even perceived to be, undertaking a political role. I have in mind, for example, difficulties that might arise if the council’s role is considered to be to promote one kind of sentence over another or to suggest to the public alternatives to custody. It seems to me sensible, therefore, to give the council some discretion as to how it promotes awareness, respecting the role of the Government in setting out penal policy and the resources assigned to correctional services, and the role of Parliament in setting the sentencing framework.

Amendment 191ZB amends the illustrative list of information the council may use to promote awareness to read “custodial and non-custodial sentences” rather than just “sentences”. I do not think this is a necessary clarification for the council. Given its membership, I am sure it will appreciate that “sentences” includes the entire range of sentences from absolute discharges via fines and community orders to life imprisonment.

Finally, Amendment 191ZD makes suggestions about how the council should go about promoting awareness, including programmes of education and making grants to bodies to carry out educational programmes. There are many ways in which the council may promote awareness, including the ways set out in this amendment, but the Government do not believe that it is necessary to spell these out as the council already has discretion to undertake these types of activities. The Government do not want to discourage the council from promoting an awareness of sentencing. We want the council to undertake this role—in fact, we actively encourage it—which is why we have set it out in the Bill. What we are concerned about, however, is that this particular role is tying the council to a duty that it may consider inappropriate and impossible to deliver, which would negate any benefits to be gained from the duty. That is why we think the council needs discretion in this particular regard. I hope that in the light of this explanation, the noble Baroness, Lady Linklater, will agree to withdraw her amendment.

I thank the Minister for his reply which fills me with great disappointment. I feel that he has not understood and appreciated what I have been trying to suggest, and he has quite significantly misunderstood the complications about compromising council members.

I gave two illustrations of members of the judiciary and the magistracy engaging with the public and explaining their work. That was highly successful and completely non-political as the people concerned simply analysed their jobs. It was a quite different process from what the Minister imagines. I hope that he will read what I have said and follow up the evidence. We have lots of evidence with which to illustrate our case. There is no question of members of the council claiming that one sentence is preferable over another. Their role is educational, not political. It is entirely inadequate and inappropriate to construct or perceive it as anything other than that.

I understand the objections to the amendments concerning custodial and non-custodial sentences. The Government may have a point there. However, I definitely wish to consider the matter further because in the light of the experience of the past seven years I feel very strongly that what I am suggesting represents a real opportunity if it is looked at dispassionately. In the mean time, I beg leave to withdraw the amendment.

Amendment 191ZA withdrawn.

Amendments 191ZB to 191ZD not moved.

Clause 115 agreed.

Clause 116 : Resources: effect of sentencing practice

Amendment 191ZE not moved.

Clause 116 agreed.

Clause 117 agreed.

Clause 118 : Duty to assess impact of policy and legislative proposals

Amendments 191ZF to 191ZK not moved.

Clause 118 agreed.

Clauses 119 to 121 agreed.

Clause 122 : Interpretation of this Chapter

Amendment 191ZL

Moved by

191ZL: Clause 122, page 74, line 31, at end insert—

““the category range” has the meaning given by section 107(4)(b);”

Amendment 191ZL agreed.

Clause 122, as amended, agreed.

Clause 123 agreed.

Amendment 191A

Moved by

191A: After Clause 123, insert the following new Clause—

“Imprisonment and detention for public protection

(1) Sentences of imprisonment or detention for public protection under section 225 or 226 of the Criminal Justice Act 2003 (c. 4) (“indeterminate sentences”) shall not be imposed after the date on which this Act is passed.

(2) Indeterminate sentences imposed before that date shall, after the expiration of three months from that date, be treated (without prejudice to earlier release) as having expired at the end of the maximum term of imprisonment or detention which could have been imposed in the absence of a power to impose indeterminate sentences.”

I am delighted that Amendment 191A is supported by the noble Lord, Lord Ramsbotham. I am quite surprised to find myself moving this amendment because my practice when I was a barrister was entirely in the civil field and not at all in the criminal field. However, I became interested in this point when, in September of last year, a report on indeterminate sentences was published by the Chief Inspector of Prisons and the Chief Inspector of Probation. It is one of the most devastating reports that I have ever read.

I do not know the Chief Inspector of Probation but I have known the Chief Inspector of Prisons, Dame Anne Owers, for many years. I worked with her for a number of years when she was the director of Justice and I was the chair of its executive committee. People generally have the highest regard for her. I have absolute confidence that anything she writes is the truth.

The Criminal Justice Act 2003 created the indeterminate sentence for public protection, or IPP. It also created a similar sentence of detention for public protection, or DPP, which could be imposed on young people under the age of 18. These two types of sentence are very similar and, for convenience, I will mainly refer to both as IPP. The purpose of an IPP is to enable the courts to override the normal sentencing powers and impose an unlimited or indeterminate sentence on criminals who have been convicted of serious offences—mainly violent or sexual ones—and who appear, or are thought, to pose significant risk of serious harm in the future.

Ninety-five different offences were included in the list of potentially serious offences, conviction for which could trigger an IPP. The IPP can, however, be applied only if the criminal has at least one previous conviction, but that previous conviction could be for one of 153 different offences—not just the 95 that could trigger the IPP, but 58 lesser offences, including affray or criminal damage. Any such previous conviction creates a presumption that there is a serious risk of future harm. An IPP sentence contains a tariff which sets out the minimum time that must be served by the prisoner. The prisoner’s release, however, is dependent not only on their having served their tariff, but on satisfying the Parole Board that they have reduced the risk that they present to the public. If release is granted, it is on licence. An IPP is therefore, in many ways, similar to a life sentence.

IPPs came into effect in April 2005. By the end of 2006, more than 2,000 prisoners had received IPPs. By the end of 2007, 3,700 prisoners were IPP prisoners. It is estimated that 13 per cent—nearly 500—of these prisoners were by then beyond their minimum tariff. It is estimated that the number of IPP prisoners is increasing by 150 per month. As of February of this year, according to figures published by the Criminal Justice Alliance, there were more than 5,000 IPP prisoners. Some 1,487 were already beyond their minimum tariff, but as of four weeks earlier, only 47 of these prisoners had been released on licence. That amounts to only 3 per cent of those who had already passed beyond their tariff.

In September 2008 the report of the two chief inspectors was published. It points out the fundamental defects of the IPP system. First, the report pointed out that it is essential, if justice is to be done, for the court—before it sentences a prisoner—to have before it accurate reports assessing the extent of the serious risk of harm. The report concluded that many of the assessments were too high and that the courts had not been given sufficient information to guide their decisions. The part of the report on probation input states:

“Inspectors examined a sample of 48 cases of adult men, young adults and women sentenced to IPPs, to see whether pre-sentence reports (PSRs) properly addressed risk in order to assist the sentencing court. There had been little guidance to probation staff in carrying out this role. Inspectors found … Of the 45 cases with pre-sentence reports, fewer than half were informed by a full and accurately completed assessment of current and previous offending behaviour … Of those cases, 31 (over two-thirds) had at least one diverse need, such as mental health, substance misuse, ethnicity or learning difficulties. In only 14 cases did the report demonstrate an understanding of the relevance of the need to the offending or future risk … Of the 40 cases which had a risk of harm analysis, only half were judged to have given sufficient consideration to risk issues. Inspectors disagreed with the classification in 17 cases, judging it to be inflated in 16 (40% of cases) … Overall, the quality of the risk of harm assessment was not sufficient to assist the courts adequately in deciding whether to impose an IPP sentence”.

There is a lot more material which is equally condemning of the machinery by which IPPs are administered.

Once IPP has been imposed, the Parole Board will expect prisoners to have undergone relevant offender behaviour programmes before they can be released on licence. The arrangement for training is hopelessly inadequate, especially in local prisons, where no relevant training is available and which house hundreds of IPP prisoners. The size of the case load of the Parole Board increased by one-third in the first two years of IPP. That leads to great delays in listing and hearing, not least because, according to the report, only 38 per cent of dossiers arrive on time.

The report of the inspectors does not propose that IPP and DPP should be abolished. However, it is impossible to read that report without coming to the conclusion that abolition must be seriously considered. IPP has turned out to be both extremely expensive to the state and unjust to many prisoners, keeping prisoners in jail beyond the tariff period because release is delayed by inaccurate pre-sentencing reports, by the absence of proper training and by delays in access to the Parole Board. It is plainly a waste of public money and unjust to the prisoners, but the cost of remedying the defects would be enormous. It would need thorough and effective pre-sentencing reports on risks presented by those who are potentially subject to IPP. It would need proper offender behaviour programmes for all IPP prisoners and ensuring that all such prisoners should be allocated to prisons where the programmes are available.

The status quo is simply not acceptable, but I do not believe that, at a time of cutbacks in public spending, we would be justified in spending many millions on improvements to a scheme which might well not succeed in reducing crime at all. We should recognise that IPP and DPP are costing the Ministry of Justice money which would be better spent elsewhere and are keeping prisoners in jail who should not be there. IPP and DPP are experiments that have failed and should be brought to an end. For those already serving IPP and DPP sentences, those sentences should be replaced by the maximum sentence for the offence for which they have been convicted. The minimum tariff period would continue to be the same as at present.

This is a serious condemnation of our prison system and the time has come for us seriously to consider abolition. The Government should abolish the indeterminate sentence now and keep it abolished. I beg to move.

I support the amendment, to which I readily put my name, because I could not agree more with every word that the noble Lord, Lord Goodhart, has spoken, not least the tribute that he quite rightly paid to my successor, Dame Anne Owers, who has been a most distinguished Chief Inspector of Prisons.

As the noble Lord said, the report that she and the Chief Inspector of Probation produced is an absolutely devastating indictment of an appallingly ill-thought-through, ill-considered, expensive and inefficient introduction, which resulted in a grossly overstated, knee-jerk reaction to what was alleged to be a problem. What the noble Lord did not mention was that at about the same time another devastating indictment of IPP was published by the Sainsbury Centre for Mental Health, which reported in great detail on the results of the imposition of IPP sentences on people, not least on their families, who looked up what an IPP meant on the internet and saw that it meant a sentence of not less than 96 years. How stupid can we be? The only stupider sentence that I have come across was in the Cayman Islands, where I found a man who had been sentenced to life plus 56 years.

The noble Lord, Lord Goodhart, has quite rightly run through the figures. When this IPP was suggested, it was felt that it would apply to a few people—hundreds at the very most. The fact that the policy was not thought through was proved almost immediately by the acceleration of the figures to a level that is now totally and utterly unmanageable. What has always seemed totally extraordinary in a grossly overcrowded and under-resourced prison system is that the Prison Service and the Ministers responsible for it have not asked themselves what the cost of this is in terms of their budget.

There are thousands of prisoners who have been in prison for far longer than they should, and because of the nature of their alleged offence, they are held in the highest security prisons, at a cost of £65,000 a year each. Surely it stands to reason that if you do not have resources, you should look at the problem and decide what in your structure you can afford to cut and, therefore, produce the money that you need to do what has to be done with prisoners who have to be in prison.

Prisoners have already successfully taken the Ministry of Justice to court because they have not been provided with the courses to enable them to qualify to go to probation to be released and, therefore, there is a sort of revolving circle inside a revolving door. When is it going to come to an end? If you cannot prove that you can be released, you will be there for ever. If more and more IPP prisoners are added, and there are less and less resources to deal with them, you are totally unnecessarily choking the system.

The only way out of this IPP problem is to acknowledge that it was a hideous mistake and that before the IPP was introduced checks and balances existed in the system whereby if a prisoner was sentenced to life imprisonment—whatever the tariff was—the risk that they represented determined the time of their release. The people who really need to be kept away from the public can be assessed in the way that the noble Lord, Lord Goodhart, recognised and can be monitored by the prison authorities to make certain that they are released only when that risk is such that release is warranted. There should not be more than 5,000 people in the prison system whose risk is sufficiently serious to warrant the sort of procedures that are currently being applied to some people whose sentences are as short as 38 days. How can you have an indeterminate sentence based on a 38-day sentence? It is ludicrous.

If the Government really are serious about rehabilitating prisoners, they should make certain that the resources are there to do it and are not wasted on a system which is costing money for no good purpose and with no outcome for the prisoners in the system. I could not agree with the noble Lord, Lord Goodhart, more strongly.

I, too, very much support the amendment of the noble Lord, Lord Goodhart. Indeterminacy is a particularly difficult sentence for a person to deal with. You do not know what will happen to you, you do not know when anything will happen to you, and you do not know how you can act to influence what might happen to you. The official answer to indeterminate-sentence prisoners is, “You will be released when you have served your punishment and when you can show us that you have changed and are not likely to do whatever it was you did that got you the sentence in the first place”.

A number of people serving such sentences, or their relatives, write to me, as I am sure they write to other noble Lords. None of them argues about serving a punishment for the crime, whatever the crime was. All the letters are about the second proviso: you cannot get out until you show us you have changed and you are no longer likely to do it again. How are they to do that? Our method is to require prisoners to attend certain psychologically based courses. I make no comment at all on the method that we have chosen but the courses are not available in the numbers required and for them to be available would require considerable resources. The courts have found that unacceptable. It is also unacceptable as a way of administering justice to individuals who are told that their length of time in prison will be decided by certain methods but that those methods are not available to them.

The effect of such sentences on the prison system has also been highly undesirable. As time is short, I shall quote only two inspectorate reports. The effect on women should be mentioned. The latest inspectorate report on Downview prison says that there were five such prisoners there and each had met her offender supervisor but little else had happened. None of the offender supervisors had received any training about the sentence. At Gartree prison, prisoners given indeterminate sentences were now competing with ordinary lifers for scarce rehabilitative resources, leaving both populations frustrated. The problems with lack of programmes meant that the waiting list for enhanced thinking skills was up to a year, for healthy relationships was between one and two years, for cognitive self-change was for up to two years, and for CALM was between two and three years. The programmes could not be expanded because they had neither the staff nor the accommodation.

Prisoners, particularly IPP prisoners, frequently described to the inspectors frustration levels so high that they felt that the only way to be heard or to get a move was to resort to violence. Such findings are very common in inspectorate reports. These sentences have been very destabilising on the prisons which are already the most difficult prisons to run and they are very expensive. I wholeheartedly support the amendment.

We on these Benches, of course, support the amendment of my noble friend Lord Goodhart. The initial concept of crime and punishment was that people should be punished for what they had done, that they should be locked up for a period of time and that they should learn a lesson. Then it occurred to everyone that the sensible thing to do when they were locked up was to try to rehabilitate them so that, when they came out, they were not just given a postal order and let loose on the world without any resources at all, but that they had something behind them. Attempts have been made to rehabilitate.

We have moved on and this Government have introduced the concept of managing risk. Whereas managing risk is quite acceptable intellectually, if you start managing the risk of people who have not committed anything particularly serious, you need to provide the resources to do it and the Government have failed in that. It is impossible to see where they could ever get the resources to carry out such an ambitious programme. We are left with an intellectual construct that it would be a good idea to manage risk and not to let people out until we are quite sure they have ticked the boxes and gone through the necessary courses.

I have experience of prisoners as people and I think it would be difficult to see some of them sitting in a cognitive improvement course, or whatever the name of the course is. I cannot see that that would do them a great deal of good. It would be far better to teach them to read, to write, to count and to give them some skills, rather than put them in front of a psychologist and tell them to behave themselves in future.

I understand how ambitious the scheme was, but the resources have simply not gone into it. It is a failure, and the Government should recognise that, unless they are prepared to make that investment and put in the resources that such an ambitious programme requires. As a result of it, an awful lot of people are now locked up, frustrated because the courses are not provided, frustrated because the boxes cannot be ticked and staying in prison long beyond the period that the judge who sentenced them thought was reasonable. We are building up a cauldron inside those prisons with these IPPs—5,000, at the moment. If the trend continues, it will get worse.

The Government should go back to basics and get back to the concept of a sentence that lasts for a finite time, so that people know when they are coming out and they can be provided with the necessary courses and skills. That is how prison resources should be spent.

The amendment is intended to abolish sentences of imprisonment or detention for public protection, commonly known as IPPs and DPPs. As the Committee knows, those sentences were introduced by the Criminal Justice Act 2003 and commenced for offences committed on or after 5 April 2005. Under the 2003 Act, originally, the courts were obliged to pass such sentences on offenders who committed a serious sexual or violent offence—that is one carrying a maximum of 10 years’ imprisonment or more—if the court considered them to be dangerous. In this context, an offender might be assumed to be dangerous if they had committed a previous relevant sexual or violent offence.

The danger that the courts were, and are, required to assess is whether the offender poses a significant risk to members of the public of serious harm by committing further specified sexual or violent offences. The sentences are similar to a life sentence in the way that they operate: the judge sets a minimum period to be served—the tariff—for the purposes of punishment. Once the prisoner has served the tariff, he will be released only if the Parole Board considers him safe to be released into the community.

I suspect that the amendment has been partly prompted by the difficulties that have been encountered by the high number of public protection sentences imposed with short tariffs. It has been suggested that the Government failed to plan for the introduction of public protection sentences. We do not accept that.

I am, of course, aware of the fact, although I did not deal with it in my speech, that there was an amendment in the 2008 Act, the result of which is, I think, that the minimum tariff has to be two years. That does not alter the substance of what I said.

The build-up of the IPP population has been broadly in line with projections. Offenders who have received public protection sentences would, prior to the implementation of the 2003 Act, have received lengthy determinate sentences: they are not new prisoners.

The problems have been caused by the number of sentences with short tariffs. This has caused serious problems for the prison system which, in many instances, has been unable to prepare prisoners for parole in time for their first parole hearing. As the noble Lord, Lord Goodhart, just reminded us, we responded by legislating in the Criminal Justice and Immigration Act 2008 to confer judicial discretion in the imposition of IPPs and DPPs. The 2008 Act also removed the option of passing a public protection sentence for offences for which the appropriate tariff was less than two years in most circumstances. Those changes to the regime focus it on those offenders from whom the public needs most protection.

We have also put in place much improved systems to ensure that offenders are enabled to demonstrate their reduced dangerousness to the Parole Board and thus show that they are suitable for release. However, the individual prisoner is responsible for his own future. The Judicial Committee of this House has confirmed that the Secretary of State has no common law duty to individual prisoners to provide specific courses for IPP prisoners and that detention post-tariff was lawful.

The Government placed public protection at the centre of their sentencing reforms. The new sentences introduced in the 2003 Act for dangerous sexual and violent offenders are designed to ensure that they are not released until their risks are considered by the Parole Board to be manageable in the community. Those offenders whose risk decreases with time will be released subject to the recommendation of the Parole Board, but it is surely right that we do not release one-time dangerous offenders until it is safe to do so.

However, the amendment would revert to the position where there was a lack of sufficient sentencing options for offenders who had committed offences which do not carry life but who nevertheless had a high risk of committing a further offence that would cause serious harm to the public. The amendment goes further by providing for the automatic release of prisoners currently serving public protection sentences once they have served the maximum sentence for the offence committed unless they have been released earlier. No consideration would be taken of the risk they might still pose to the public. Is that really acceptable?

The Government legislated in the 2008 Act to restore judicial discretion. They also removed it as an option for offences for which the appropriate tariff was under two years. These changes apply to offenders sentenced on or after 14 July last year. In the first six months of 2008, 850 offenders were given an IPP sentence, an average of 141 per month. In the last six months of 2008, following the implementation of the Criminal Justice and Immigration Act, 420 offenders were given an IPP sentence, which is an average of 70 per month. So the number of offenders given such a sentence was reduced by one-half as soon as the 2008 legislation came into force.

We are seeing the impact of changes to the system for managing the indeterminate-sentence prisoners and of changes in categorisation, but this will take some time to have its full impact. By May 2008, the database showed 14 per cent of the IPP population in category C prisons, an increase on the 3 per cent in January of the same year.

NOMS has increased provision of accredited programmes, and in excess of £21 million is invested in the delivery of drug treatment programmes in custody. Overall, 64 per cent of IPP prisoners in custody have attended at least one programme in July 2009, compared to a figure of 52 per cent in June 2008 and 65 per cent in March 2009.

I do not intend at this stage to talk about Clauses 124 and 125. I invite the noble Lord, Lord Goodhart, to withdraw his amendment.

Clauses 124 and 125 are of course simply consequential on Amendment 191A. The noble Lord, Lord Bach, has made out a case which is basically fair enough on the assumption, which I believe is entirely false, that everything is going well. If things were going well, it would be understandable, although still unsatisfactory in many respects. However, the question of significant risk would be justified only if significant risk could be identified with any real prospect of success, which it simply cannot.

In the past, the risk of offences being committed by a criminal in the future was always dealt by the possibility of imposing anything up to the maximum sentence for that crime. The provision for lengthy determinate sentences has always existed, and has worked reasonably well because past criminal record is an important, central feature in determining the length of the sentence. The Minister’s statistics do not satisfy me that we have got anywhere near a satisfactory answer to all of the problems that have arisen.

In the circumstances, I will withdraw the amendment, but I am very grateful for the support that I have received from the noble Lord, Lord Ramsbotham, the noble Baroness, Lady Stern, and my noble friend Lord Thomas of Gresford. The present situation is a disgrace to the British penal system. Although I withdraw the amendment now, I may seek to bring it back on Report. I beg leave to withdraw Amendment 191A.

Amendment 191A withdrawn.

Schedule 14: Extension of disqualification for driving

Amendment A191AZZA not moved.

Schedule 14 agreed.

Clauses 124 and 125 agreed.

Amendment 191AZA

Moved by

191AZA: After Clause 125, insert the following new Clause—

“Confiscation ordersAppeals against certain confiscation orders (England and Wales)

(1) The Criminal Appeal Act 1968 (c. 19) is amended in accordance with subsections (2) and (3).

(2) In section 11 (supplementary provisions as to appeal against sentence), after subsection (3) insert—

“(3A) Where the Court of Appeal exercise their power under paragraph (a) of subsection (3) to quash a confiscation order, the Court may, instead of proceeding under paragraph (b) of that subsection, direct the Crown Court to proceed afresh under the relevant enactment.

(3B) When proceeding afresh pursuant to subsection (3A), the Crown Court shall comply with any directions the Court of Appeal may make.

(3C) The Court of Appeal shall exercise the power to give such directions so as to ensure that any confiscation order made in respect of the appellant by the Crown Court does not deal more severely with the appellant than the order quashed under subsection (3)(a).

(3D) For the purposes of this section—

“confiscation order” means a confiscation order made under—

(a) section 1 of the Drug Trafficking Offences Act 1986,(b) section 71 of the Criminal Justice Act 1988,(c) section 2 of the Drug Trafficking Act 1994, or(d) section 6 of the Proceeds of Crime Act 2002;“relevant enactment”, in relation to a confiscation order quashed under subsection (3)(a), means the enactment under which the order was made.”

(3) After that section insert—

“11A Quashing of certain confiscation orders: supplementary

(1) This section applies where the Court of Appeal—

(a) quash a confiscation order under section 11(3)(a) (“the quashed order”), and(b) under section 11(3A), direct the Crown Court to proceed afresh under the relevant enactment.(2) Nothing in this section prevents any sum paid by the appellant pursuant to the quashed order being a sum which is recoverable from the Secretary of State as a debt owing to the appellant, but the Court of Appeal may direct that any such sum is not to be repaid until such time as the Crown Court makes a confiscation order, or decides not to make such an order, when proceeding afresh pursuant to section 11(3A).

(3) Nothing in this section prevents an amount which would otherwise fall to be repaid as a result of the order being quashed being set against an amount which the appellant is required to pay by virtue of a confiscation order made by the Crown Court in those proceedings.

(4) In this section “confiscation order” and “relevant enactment” have the same meaning as in section 11(3D).””

My Lords, the new clauses that are inserted by Amendments 191AZA and 191AZB amend Section 11 of the Criminal Appeal Act 1968, and the equivalent legislation in Northern Ireland, so that where the Court of Appeal quashes a confiscation order, it may, as an alternative to making a new order itself, direct the Crown Court to consider whether a new order should be made, and if so what the order should be.

The reason for these provisions is a problem that has come to light in a recent case called Chambers that potentially affects a large number of other cases. These are cases in which confiscation orders may be liable to be quashed on appeal as having been inadvertently made by reference to regulations that had been superseded.

The error does not mean that no order can be made. There is a power under Section 11 of the 1968 Act for the Court of Appeal to,

“make such an order as the sentencing court would have had the power to make”,

and the court could use that power to make a substitute order by reference to the correct regulations, but there is concern that the burden of doing so in a significant number of cases might lead to unacceptable delays in hearing other, perhaps more important, appeals.

The amendment to Section 11 of the Criminal Appeal Act would therefore give the Court of Appeal the power to remit cases to the Crown Court, where a confiscation order is quashed as a result of a successful appeal by the defence. The Crown Court would then determine whether a new confiscation order should be made, and its terms.

The amendment ensures that, in doing so, the court would have to take account of any sums that may already have been paid under the terms of the original confiscation order. No fresh order made under Section 11 can treat the defendant more severely than the original one.

Amendment 221DA has the effect of making the new arrangements apply to appeals that are still pending when the Bill is passed. Amendment 222A is consequential on the main amendments. I commend these amendments to the Committee. I beg to move.

At this late hour, I think I can say that that sounds satisfactory, but I want to look carefully at what the Minister said and at the amendments. I therefore reserve the right possibly to come back with amendments to them on Report. For the moment, I do not oppose them.

Amendment A191AZA agreed.

Amendment 191AZB

Moved by

191AZB: After Clause 125, insert the following new Clause—

“Appeals against certain confiscation orders (Northern Ireland)

(1) The Criminal Appeal (Northern Ireland) Act 1980 (c. 47) is amended in accordance with subsections (2) and (3).

(2) In section 10 (supplementary provisions as to appeals against sentence), after subsection (3) insert—

“(3A) Where the Court of Appeal exercises its power under subsection (3) to quash a confiscation order, the Court may, instead of passing a sentence in substitution for that order, direct the Crown Court to proceed afresh under the relevant enactment.

(3B) When proceeding afresh pursuant to subsection (3A), the Crown Court shall comply with any directions the Court of Appeal may make.

(3C) For the purposes of this section—

“confiscation order” means a confiscation order made under—

(a) Article 4 or 5 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990,(b) Article 8 of the Proceeds of Crime (Northern Ireland) Order 1996, or(c) section 156 of the Proceeds of Crime Act 2002;“relevant enactment”, in relation to a confiscation order quashed under subsection (3), means the enactment under which the order was made.”

(3) After that section insert—

“10A Quashing of certain confiscation orders: supplementary

(1) This section applies where the Court of Appeal—

(a) quashes a confiscation order under section 10(3) (“the quashed order”), and(b) under section 10(3A), directs the Crown Court to proceed afresh under the relevant enactment.(2) Nothing in this section prevents any sum paid by the appellant pursuant to the quashed order being a sum which is recoverable from the Secretary of State as a debt owing to the appellant, but the Court of Appeal may direct that any sum is not to be repaid until such time as the Crown Court makes a confiscation order, or decides not to make such an order, when proceeding afresh pursuant to section 10(3A).

(3) Nothing in this section prevents an amount which would otherwise fall to be repaid as a result of the order being quashed being set against an amount which the appellant is required to pay by virtue of a confiscation order made by the Crown Court in those proceedings.

(4) In this section “confiscation order” and “relevant enactment” have the same meaning as in section 10(3C).””

Amendment 191AZB agreed.

House resumed.

House adjourned at 9.56 pm.