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Criminal Justice Act 2003 (Suitability for Fixed Term Recall) Order 2024

Volume 837: debated on Monday 18 March 2024

Motion to Approve

Moved by

That the draft Order laid before the House on 22 February be approved.

Relevant document: 16th Report from the Secondary Legislation Scrutiny Committee

My Lords, in October 2023, my right honourable and learned friend the Lord Chancellor said in the other place that the Government would review the use of recall to ensure that the prison system is working effectively and consider how to safely manage any risk posed by offenders, while not having people in prison any longer than necessary. That is the purpose of this statutory instrument.

Recall, as your Lordships know, is a preventive measure available to the Probation Service to bring an offender managed on licence in the community, following release from prison, back into custody. There are two kinds of recall. The first is known as fixed-term recall, which is for a period of 14 days if the offender’s sentence is less than 12 months, or of 28 days if they are serving a sentence of over 12 months. The other is standard recall, where offenders are recalled to prison and remain in custody until the end of their sentence, unless released earlier by the Parole Board.

Unfortunately, pressures on the Parole Board mean that it is sometimes quite a long time before a prisoner’s further release comes up for consideration. In the case of offenders already serving less than 12 months, the delays in the Parole Board might mean that it does not get round to considering their case before they are due for release anyway. This means that in the case of offenders serving less than 12 months, a recall is quite a severe consequence.

Between 2017 and 2023, the number of people in prison on recall rose by about 85%. In that period, there was a major decline in fixed-term recalls—20% in general and 27% for those offenders serving less than 12 months. The purpose of this statutory instrument is to rebalance that situation and mandate the use of fixed-term recall for lower-level offenders—those on less than 12 months, subject to certain exceptions that I will come to—so that they are automatically recalled for 14 days and then rereleased. Of course, they would then remain on licence until the end of their custodial period being served out in the community.

That is the essential purpose of the statutory instrument. I accept that it is against the general background of pressure on the prison estate at the moment but, in the Government’s view, this measure is fully justified in its own right, in fairness to offenders serving less than 12 months and as a way of rebalancing the system in the way I described.

As your Lordships know, probation can recall offenders if their risk while on licence increases because they fail to keep in touch, do not observe the curfew, have been under the influence of alcohol if the conditions forbid alcohol, et cetera. However, as I said, for those serving short sentences, the reality is that one recall might mean that they serve the rest of their sentence, are held in custody for too long, and when they come out they are not on licence as their licence has finished. It is much better, in general, for the short-sentence offenders to remain on licence when they are released back into the community for the balance of the sentence period.

The order will apply to lower-level offenders aged 18 and over serving custodial sentences of fewer than 12 months and assessed as requiring recall. It will not apply to the more serious offenders who are managed under what is known as MAPPA at levels 2 and 3, or those who have been charged with a further serious offence under Schedule 18 to the Sentencing Act 2020.

As my right honourable and learned friend the Lord Chancellor and the noble and learned Lord, Lord Stewart of Dirleton, updated the Houses the other day in their Statements on “Prisons and Probation: Foreign National Offenders”, we are preparing the Probation Service to be ready for increased demand, introducing changes to operating procedures that will allow front-line staff to maximise supervision of the most serious offenders and to deal with intervention and engagement at as early a stage as possible.

I take the opportunity to express our deep gratitude to all those working in the criminal justice system, including in prisons, probation and the police. They deserve enormous credit for their commitment. They are under heavy pressure and managing magnificently. I hope that this statutory instrument will further ease that burden and rebalance the system in the way I hope I have described. I beg to move.

I can sort of see the rationale for this, but it is completely misguided. Every time the Government talk about tougher sentences and being tougher on crime and the causes of crime, they start packing out the prisons. Of course, there is now no capacity. This is a rather cynical move to clear out the prisoners so that we can pack other people in.

I have a much better idea, which I will come to in a moment, but I do not understand why the Government are wafting this statutory instrument through yet find it impossible to do something fairly fast for IPP prisoners. I would like an explanation from the Government.

Part of the problem is that we tend to send people who committed low-level drug abuse crimes to prison. I suggest a constructive way forward, which is that we automatically release anyone in prison for low-level drugs offences, because they are less dangerous to other people and really only dangerous to themselves. Please could we have some rationale about the prison system, which is crumbling with this Government and could be better?

My Lords, apparently it is my turn. In a way, this is a continuation of the Question put by the noble Earl, Lord Attlee. The Minister knows the crisis in our prison system. That crisis has been made partly by legislation that we have passed in this House over the last decades.

I remember that, when I went into government with the noble Lord, Lord Clarke—Ken Clarke, who I still consider my friend—we had some ideas about reducing the prison population, which had then crept over 80,000, double what the noble Lord had experienced 20 years before when he was Home Secretary in the early 1990s. We sent a little package across to the No. 10 Politburo, but the message came back: “Not politically deliverable”. That has been the problem with Governments of all shades over the last 20 years: not being able or willing to try to bring down our prison population.

The noble Baroness is right that this is gesture politics, but it is a gesture in the right direction and therefore we support it. There is a concern that it is another example of central government moving responsibility to local government and local voluntary services, which then find themselves under pressure. If more probationers are in society and still needing supervision, will there be any more help for the voluntary services?

Apart from pointing out the ridiculous idea of putting in prison too many prisoners who do not need to be there and could be better managed in society, my argument, going back to the Question put by the noble Earl, Lord Attlee, would be to look at the whole process of managing the way out for prisoners at the end of their sentences, which is expensive, difficult and almost impossible in an overcrowded prison. It came up in that Question—and the Minister indicated that it may already be happening—that some of the experience and wisdom of prison officers towards the end of their careers could be used in a management and mentoring role. Otherwise, we give this SI our support.

My Lords, I apologise for arriving late for the Minister’s introduction of this SI. We too support the SI as far as it goes, but I agreed with the noble Baroness, Lady Jones, when in the first part of her speech she pointed out quite rightly that, on the one hand, here we are reducing prison sentences while, on the other hand, other legislation down the other end of the corridor is increasing prison sentences. Of course, we have the overarching problem of a Prison Service running at capacity while the Government are struggling to build new prisons. That overarching problem will confront whichever party is in government; I need to acknowledge that.

The central point is about support for prisoners as they come out of prison, so that we do not have a revolving door. As the noble Lord, Lord McNally, said, various charitable and voluntary organisations working with local authorities can properly support prisoners as they come out of prison. As we also know, the most difficult cohort is prisoners who are on relatively short sentences; they are the prisoners most likely to reoffend.

As the Minister knows, I myself am a sentencer. I do short sentences—that is part of our bread and butter within the magistrate system—and it is always with great regret that I give an offender a short custodial sentence, but the reality is that we have found ourselves in a position where we have no alternative. Very often those offenders have been on multiple community sentences beforehand, so we as sentencers feel we have no choice.

The solution is support through the Probation Service. There has been some recruitment of probation officers, although I understand that there is a fairly high turnover and a problem with recruitment. There is a reinvigoration of probation, which I welcome as far as it goes, but surely the long-term solution is a renaissance for the Probation Service, where it can really do its true vocation—many of its officers feel a sense of vocation in their work—and try to get this group of prisoners, who are most likely to reoffend, to properly engage with the community so they do not do so. With regard to the specific SI, we support it.

I want to make a few comments. The renaissance should actually start somewhere else. It should start—I have certain experience with this—with all the naughty boys who later become naughtier boys and men; they should be addressed and supported. The noble and learned Lord, Lord Bellamy, and I have talked about this. What we are largely doing with our young now, although there are some wonderful projects and initiatives, is warehousing them. When I was a young person in the custodial system, if I wanted to climb Mount Everest then, as long as I did not rob an old lady on the way, they were happy to help me. They were happy to help me to do O-levels and that kind of thing.

We have to stop just responding to the problem as it is. There will always be a need to respond to an emergency, but you have to back it up with prevention. That means dealing with our children, largely from the same class that I come from, who fail at school. When I go to Pentonville, the first thing I ask is, “How many people did well at school?”, and only a couple of people put up their hands. The rot starts early on. These children are inheritors of poverty.

Until we have some thinking, we cannot deal with the emergency just by dealing with the emergency. We have to grow up and start creating a system that, first of all, helps the children who come through it. At the same time, we have to look at the social engineering that is necessary to stop producing children who fail at school and whose only inheritance is poverty.

My Lords, I compliment the noble Lord, Lord Bird, on his intervention. Personally, I think it is full of common sense. We know that a large number of people in prison, particularly in the male estate, are dyslexic. That almost tells you all you need to know about why they are in prison—they have fallen through the various protections. That is somewhat outside the scope of today’s debate, but it is a point well made that all Governments should be thinking about profoundly. We must consider how to tackle this problem as early as we can through a different way of approaching the social problems that lead to the situation that we are in. I thank the noble Lord for those comments.

I thank the noble Baroness, Lady Jones, for her comments too. I hope this is not a cynical move, although I entirely see the potential contradiction in some ways that we are involved in. The Government’s general policy, and probably that of most Governments, is to try to be tougher on the more serious offences but to think harder about how to tackle the less serious ones. Today, we are talking about the less serious offences.

We will come to IPP prisoners on Report of the Victims and Prisoners Bill—we discussed it the other night. Automatic release for low-level drug offenders is a very creative idea; it is some way away from the thinking of the present Government, but is another thing to put on our list of things to think about, if I may put it that way to the noble Baroness in thanking her for her intervention.

Finally, I thank the noble Lord, Lord McNally, who, with great distinction, discharged the office that I now hold, so I regard myself as his grandson in a way. His approach with my noble friend Lord Clarke of Nottingham was no doubt very sensible at the time but, as all Governments know, one has to deal with the political framework that one finds oneself in. In putting forward this order, the present Government are, I hope, producing a practical solution to a very pressing problem.

Of course, I agree with the noble Lord, Lord Ponsonby, that support for the Probation Service—perhaps even its renaissance—is something devoutly to be wished. We have to do what we can, as we can, with the resources we have, but the overall goal is, I think, one that most Members of this House share. So, unless there are any other points I have not dealt with, I now commend this order.

Motion agreed.