Criminal Justice and Immigration Bill

My Lords, I am most grateful to the noble and learned Lord. I asked the noble Lord, Lord Kingsland, what he thought about his own amendment, in a sense, because, as the noble and learned Lord, Lord Lloyd, suggested, and I said in Committee, we think that it would not achieve what he seeks, and would restrict IPPs in a way which he would not want. I think that there is general agreement about that. Clause 13 amends Section 225 of the Criminal Justice Act 2003 by setting out two new conditions, one of which must be met before the court can impose an IPP. One of those conditions is the two-year threshold; the other is a previous conviction for one of the shortlist of extremely serious offences set out in new Schedule 15A to the Criminal Justice Act 2003, which can be found in Schedule 5 to this Bill. The amendment of the noble Lord, Lord Kingsland, would remove entirely the threshold condition, in new subsection (3B), without making any further consequential amendment. It leaves the other condition intact. Our reading of it is that it leaves a statute whereby a court may impose an IPP where only the first condition is met; that is, that the offender must have a previous conviction for one of the shortlist of extremely serious offences set out in new Schedule 15A. A substantial number of IPPs have been given out by the courts. It was certainly not foreseen by the Government that high numbers of IPPs would be given with very short tariffs. I said in Committee that about 30 per cent of offenders receive a tariff of two years or less. The average tariff for all IPP sentences is 38 months and, as the noble and learned Baroness, Lady Butler-Sloss, said, the shortest tariff recorded so far is just 28 days. That clearly raises serious questions about whether the sentences can provide an appropriate degree of risk management for those offenders who have received only a very short tariff. On a practical level, as a number of noble Lords have already observed, such sentences can create great management difficulties. I do not need to go into great detail, but they present an enormous challenge to the service, which is a matter of considerable concern to noble Lords. Prison staff are under instructions to prioritise indeterminate sentence prisoners with short tariffs and to move them as quickly as possible to establishments where their offending behaviour needs can be addressed so that they can go through the structure and their case can then be considered appropriately by the Parole Board. We have also increased provision. The number of core offending behaviour courses has risen from 14,000 in 2004-05 to 18,000 in 2006-07, and additional funding has been given for the implementation of offender management in prisons. However, welcome as those improved measures are, they are clearly not enough to deal with the problem that we face. That is why we are proposing that the statute be changed to ensure that courts are able to make more targeted use of the sentences. The noble Lord, Lord Kingsland, suggested that the seriousness of the trigger offence bore no relation to the degree of risk presented by the offender. The noble and learned Baroness, Lady Butler-Sloss, responded in vigorous terms that I can only endorse. We think there is an association between the assessment of an offence and the risk of future offending and causing future harm, which is reflected in the sentence, although it is but one factor in the risk assessment undertaken in the courts. The noble Lord, Lord Kingsland, referred to the comments made by the noble Lord, Lord Neill. IPPs per se have not been held incompatible with the ECHR. We certified that they were compatible on introducing the 2003 Bill. The noble Lord, Lord Kingsland, may have had in mind the judgment in the Divisional Court in the case of Walker and James that the Secretary of State for Justice had acted irrationally in failing to provide the necessary resources to support the delivery of offending behaviour programmes for IPP prisoners so that they can be considered for release by the Parole Board as soon as their tariff has expired. The Court of Appeal upheld that judgment—I am sure the noble Lord, Lord Kingsland, knew that—and made a declaratory statement. It also indicated that if an IPP prisoner were held in custody for an unreasonably long time after a tariff that was not defined by the court, he would have a case for a judicial review under Articles 51 and 54 of the ECHR. Walker and James did not receive the remedy of release as they were not considered to have exceeded their tariff by an unreasonable time. As the noble Lord, Lord Kingsland, raised the question of risk, I shall point out that there is an exception to the seriousness threshold where offenders have previous convictions for certain very serious offences. We believe that in certain cases it may be advisable to impose a public protection sentence even though the threshold has not been reached for the current offence. Those cases are where an offender has already demonstrated that he or she is capable of very serious crimes. The relevant offences are those that invoke the ““two strikes”” or ““automatic life”” provision of the Powers of Criminal Courts (Sentencing) Act 2000, which was incorporated in 2005 into the dangerous offenders legislation. The list includes soliciting and conspiring to commit murder, manslaughter, grievous bodily harm with intent, robbery with firearm, and possession of firearm with criminal intent. The sexual offences covered are rape, rape of a child, and other offences involving very serious sexual activity without consent. These additional sexual offences were introduced in the Sexual Offences Act 2003. I should also make it clear that public protection sentences are not the only risk-management tool that protects the public from sexual and violent offenders. We believe that there is sufficient discretion and that the courts will still be able to give IPPs where they are needed. I listened with great care to the speech the noble and learned Lord, Lord Lloyd, made on his amendment. He welcomed the changes that the Government have put down, but would prefer to go further in the way that his amendment suggests. Rather like the debate on the custody threshold in relation to youth justice, it is a question of judgment whether the Government have this right or whether the noble and learned Lord has. He met my right honourable friend the Lord Chancellor to discuss this, which was very helpful, but after careful consideration we think that the minimum two years in custody is the most appropriate threshold because it equates to a headline sentence of four years. We do not think that is an inevitable sentence. It would be unusual to receive a four-year sentence for a trivial offence. We are trying to strike a balance between ruling out cases that are not serious enough to be considered in this light and allowing the court to detain worrying offenders, even if their immediate offence is not so serious as to deserve an extremely weighty sentence. Under the regime prior to the 2003 Act, four years was the cut-off point in length of sentence between the offender being automatically released at the half-way point and being released at the discretion of the Parole Board. Of course, we are now talking about a different system, but my reflection of the previous regime shows that four years with two years’ actual custody was considered a threshold beyond which risk management came more into play, which is one of the rationales for the period that the Government have chosen. I realise that this is a matter of judgment. I understand that a number of noble Lords feel that we have not gone far enough. The noble Lord, Lord Kingsland, feels we have gone too far. I happily put the proposition that maybe we have the balance right. I hope that if he is determined to press his amendment to the vote, it will not receive the support of the House.