Remand on Bail (Disapplication of Credit Period) Rules 2008

The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach)
rose to move, That the draft rules laid before the House on 7 July be approved.

The noble Lord said: My Lords, the draft rules arise from Sections 21 to 23 of the Criminal Justice and Immigration Act 2008 which, when commenced on 3 November, will create new arrangements that will allow time spent on bail while subject to an electronically monitored curfew to be credited against a subsequent custodial sentence. These new arrangements give effect to a measure recommended by my noble friend Lord Carter of Coles in his review of prisons to help manage demand for prison spaces.

It may assist the House if I briefly explain how the credit will operate before I go on to explain the purpose of the rules. To qualify for the curfew credit, defendants must have been subject to an electronically monitored curfew, which I will refer to as tagged bail, for at least nine hours per day. Electronically monitored curfew conditions constitute a significant restriction to a defendant’s movements and compliance is rigorously monitored. But a curfew is clearly less arduous than being remanded to custody, and so to reflect the position that being subject to a curfew does not equal a deprivation of liberty whereas remand to custody clearly does, each day of tagged bail will provide a potential credit against sentence of no more than half a day. The court will have discretion, if it considers it just in the circumstances, not to count all or any of the available days and will be required to take into account the defendant’s compliance with the curfew. The sentencing judge must state in open court the number of days spent on tagged bail that will count as time served towards the sentence imposed. This is a sensible measure that will provide an incentive to those remanded on tagged bail to comply with their conditions as well as providing relief to the prison population.

The purpose of the draft rules is to set out specific circumstances in which the court must not grant credit under the new provisions. It is appropriate to restrict the credit given in particular circumstances where it would undermine public confidence in the provisions. The rules are consistent with the equivalent rules made by the Secretary of State in relation to crediting periods of remand in custody. We have consulted the judiciary on the content of the draft rules through the Criminal Procedure Rule Committee. All its comments have been taken on board.

Draft Rule 2 will prevent a court making a direction which would have the effect of counting twice the same period of time spent subject to tagged bail. This covers the situation, for example, in which a defendant spends a period under tagged bail in relation to two offences and is then sentenced at different times. Where the first sentencing court directs the time to count towards the first sentence, the rules will prevent the second court counting the same period toward the second sentence.

Draft Rule 3 will prevent the court making a direction in relation to days spent on tagged bail where the offender was also subject to an electronically monitored curfew as a consequence of early release from prison, or as part of a non-custodial sentence such as a community order with an electronically monitored curfew requirement. Similar provision can be found in rules made under Section 240 of the Criminal Justice Act 2003, where time spent remanded to custody at the same time as time spent serving a custodial sentence is prevented from being directed to count against any subsequent sentence. The draft rule will ensure that offenders who have been released early under the home detention curfew scheme and those who have been released on general licence subject to an electronically monitored curfew do not receive credit.

Draft Rule 4 deals with the unlikely event that a prisoner released from prison under temporary licence appears before a court on further charges during that period without first being returned to prison for breaching the terms of their licence. Prisoners who are charged with an offence during a period of temporary release will ordinarily have their licences revoked and be returned to prison quickly. The rule is simply a precautionary measure to make it clear that prisoners released from prison under temporary licence must not receive credit.

It would of course be open to the court to use its discretion not to grant credit in the specific circumstances set out in the draft rules. However, the rules will remove any doubt by providing the courts and defendants with absolute clarity about the circumstances in which a sentencer must not give credit. I commend this draft statutory instrument to the House. I beg to move.

Moved, That the draft rules laid before the House on 7 July be approved. 26th Report from the Joint Committee on Statutory Instruments.—(Lord Bach.)

Lord Henley
My Lords, I hope that I can brief. I thank the noble Lord, Lord Bach, for explaining the order, because, as I normally do with orders, I found it incomprehensible. I had problems even with the Explanatory Memorandum, but we have been assisted by the Minister. During the past 24 hours, we have seen two versions of the Minister in responding to things. Yesterday, we saw him dealing with the Motion of the noble Lord, Lord Trefgarne, on the European Parliament (House of Lords Disqualification) Regulations 2008, where he was apologetic on behalf of his department, admitted that it had got things wrong and said it should possibly have consulted more. Today, at Question Time, we had a slightly more robust noble Lord, Lord Bach, who was firm in his belief that there was no need for him to provide information for my noble friend Lord Onslow, who sadly is not here, despite being a member of the Government who introduced the Freedom of Information Act. We hope today that, of those two versions of the noble Lord, the Dr Jekyll and Mr Hyde, it will be the Dr Jekyll who triumphs, that we will get the apologetic, friendlier version of him and that he will assist us.

I must ask just one or two questions to guide me in our tour through the regulation. The minute I saw that it was related to the credit period, I suspected that it was another excuse for the Government, particularly in relation to the Times article that I mentioned today at Question Time, to keep the prison population down and thereby save money, even if its long-term consequence would be to increase the spend. I then discovered that, because the rules are related to disapplication of credit period, there must be some other motive in introducing them. I then looked carefully at the Explanatory Memorandum and listened to the Minister’s explanation, for which I am grateful. He explained that draft Rule 2 is related to double counting, draft Rule 3 to double counting in connection with early release, and draft Rule 4 to release on temporary licence. In other words, it is designed to put right the inadequacies of a Bill that we passed as recently as last summer and was going to come into effect on 3 November, and the Government have had to come back with the draft instrument to say, “On 3 November, when this comes into effect, it will only come into effect in one part and we’ll have to remove one part for it”.

If I can go back to the Dr Jekyll side of the Minister, I think that a brief apology on his behalf and that of the department for not getting it right with the 2008 Act is due. We made it clear that we did not particularly like the idea of the credit period, but if the department was going to have one, it might have got it right in the Bill, without the need to bring forward the rules. We suspect that, as it passed through this House, the Ministers involved did not spot this and did not deal with it as they should, and that is why we are dealing with the rules today. For that reason only, I hope again that the noble Lord, because he is very good at apologies late at night, would feel that he could apologise on behalf of his department for getting it wrong and wasting just a few minutes of the House’s time on these rules.

Lord Thomas of Gresford
My Lords, I was interested to hear a moment ago that my colleagues in another place were opposed to sheep tagging. I did not know that this was Liberal Democrat policy, so I made inquiries and discovered that, in so far as hefted sheep in Welsh upland areas are concerned, it was thought to be an unnecessary ramification, and my colleague, Mr Steve Webb, was demanding that the Government make yet another U-turn.

However, we have always supported the tagging on bail of offenders as an alternative to remanding an individual in custody. The benefits are obvious: the person is enabled to stay within the family, to retain his accommodation and to attend work and education. Since he is not to be held to be guilty until he is convicted, that is all very beneficial. Accordingly, although we join the noble Lord, Lord Henley, in criticising the Government for getting it wrong in the iniquitous criminal justice Bills that they so frequently pass, we support the rules being put forward today.

Since we are in favour of tagging during bail, I should be interested to know what the compliance rate is—if the Minister has that information—and whether technical problems have been overcome. I am aware of technical problems in relation to tagging in the early days, so I would be interested to know whether the Government are now satisfied that the tagging provisions work properly. Subject to that, we have no objection to the rules as proposed.

Lord Bach
My Lords, I thank both noble Lords for the approach that they have taken to this. In my best Dr Jekyll mood—he was the nice one—I shall say in the nicest possible way that there is no inadequacy in the Act at all. The order-making power was made clear in the primary legislation. The rules are entirely consistent with the remand rules created in 2005. We have always said that it would be at the discretion of the sentencer whether credit would be given and we have pointed out three situations in which credit cannot be given. That is all that we have done in these short but necessary rules.

The purpose of the draft rules is to set out the specific circumstances in which the court must not grant credit against a custodial sentence for time spent on bail subject to an electronically monitored curfew. The rules are entirely consistent with the equivalent rules made by the Secretary of State in relation to crediting periods of remand in custody.

The noble Lord, Lord Thomas of Gresford, asked how many of those tagged breach their bail. No data are held centrally on defendants’ return to court as a result of breach of bail conditions, including tagged curfews. Of course, individual courts take account of whether there has been a breach in deciding whether and how much credit should be given against custodial sentences. Data provided by the electronic monitoring contractors say that the number reported to the police as having breached is as high as 64 per cent—16,000 cases out of about 25,000. However, there are caveats to that: tight rules are applied and, if you are not at home within 15 minutes of the time when your curfew begins, there is a duty on the monitoring company to tell the police. Those are the occasions on which the police have been told, but it does not follow that each of those occasions is a breach demanding an immediate removal of bail or any punishment on its own. People can legitimately be late home. It would be dangerous to suggest that that 64 per cent somehow represents extra criminality. It does not. I hope that that is a clear answer to the noble Lord’s question.

As for whether this is a robust system, it was given a clean bill of health in 2006, when it was audited. It is a useful tool in the armoury to deal with those on bail. Again, I am grateful to both noble Lords for what they have said.

On Question, Motion agreed to.

House adjourned at 7.52 pm.