Criminal Justice and Immigration Bill

moved Amendment No. 93: 93: Clause 29, page 20, line 14, at end insert ““, subject to the agreement of a Crown Court judge”” The noble Lord said: I shall also speak to the other amendments in this group. The approach we have taken to Clauses 29 and 31 is to conclude that there is insufficient involvement by the judiciary in the decisions that have to be made. Accordingly, in the case of Clause 29 we have tabled several amendments which contain the expression, "““subject to the agreement of a Crown Court judge””," and in the case of Clause 31 we have inserted, "““with the approval of the Lord Chief Justice or a judge designated by him””." Clause 29 deals essentially with three categories of offenders. The first is offenders serving a determinate sentence for offences that are neither violent nor of a sexual nature. If such prisoners, having been assessed as not presenting a risk of harm to the public, are recalled, the Bill says that that will be for a fixed period of up to 28 days, at which time they will automatically be rereleased. The second group is determinate sentence prisoners serving sentences for crimes of a sexual or violent nature, or who have been assessed as unsuitable for automatic rerelease because they present a risk of serious harm, or have already served one fixed-term recall and as a result are no longer eligible for automatic rerelease. The Bill allows for such prisoners to be rereleased through two routes. In the first the Secretary of State has discretion to examine the case and determine whether rerelease should occur. That involves determining that the offender is safe to be released. A decision will be taken by the Secretary of State alone on the basis of an up-to-date risk assessment provided by probation staff. If the Secretary of State is not satisfied on the matter, there remains the option, as exists now, of the Parole Board. A third and final category in the amendment, which also replicates the original clause, is those sexual or violent offenders who are serving extended sentences. Such prisoners will be rereleased only if the Parole Board recommends it. If the board does not consider it safe to rerelease them following their recall, they could be held until the end of their sentence. At the outset I said that my main concern about the treatment of all these categories was the absence of any judicial input or discretion. That applies in two different ways depending on which category we are looking at. In the first category, which is offences that are neither violent nor of a sexual nature, what the Bill requires is too automatic; in every case, irrespective of the nature of the offence or the conduct of the individual, there will be a straightforward return to prison for 28 days and then automatic release. That simply does not take account of the specific circumstances of the matter. It treats all breaches as having exactly the same seriousness. There should be a discretion here for the judiciary as to whether to recall to prison and for what period. What should determine the length of the prison sentence to which the individual returns should be the nature and seriousness of the breach. Nothing in the Bill allows that to happen. On the other hand, when one looks at category 2, one finds that the Secretary of State is given an exclusive right to determine what should happen. We consider this wholly inappropriate. If somebody other than the judge should be given that discretion, it ought in all cases to be the Parole Board. As far as Clause 29 is concerned, these problems would be cured if the agreement of a Crown Court judge was required before the matter was finally determined. A rather different consideration is at issue in Clause 31, the explanatory title of which—““Recall of life prisoners: abolition of requirement for recommendation by Parole Board””—is misleading. Under Section 32 of the Crime (Sentences) Act 1997, the Home Secretary already has the power to recall a prisoner serving a life sentence released on licence without a prior recommendation from the Parole Board. Although the Home Secretary is normally required to follow the board’s recommendation, Section 32(2) of the 1997 Act provides that the Home Secretary may recall a prisoner without a prior recommendation in exceptional cases, "““where it appears to him that it is expedient in the public interest to recall that person before such a recommendation is practicable””." Rather than enable the Home Secretary to recall life prisoners without a recommendation—a power he already has under Section 32(2)—the true effect of Clause 31 is to free the Home Secretary from the requirement to have regard to the public interest when exercising this power in exceptional cases. As far as I am aware the Government have put forward no evidence to show that the current provisions have ever inhibited the Home Secretary’s ability to recall a life prisoner where he or she has deemed it necessary to do so. Nor is there any evidence to show that the current power to recall without a recommendation in exceptional cases has ever proved insufficient. In the absence of such evidence, we see no sound policy reason why the Home Secretary should be freed of the requirement to act in the public interest when recalling a prisoner. In the absence of such a safeguard it is clear that an elected politician would be susceptible to public disquiet and anger about individual cases. The liberty of the subject, even that of a prisoner convicted of the most heinous of crimes, is too important to be left vulnerable to such pressures. I beg to move.