My Lords, this amendment concerns prisoners serving indeterminate sentences for the protection of the public under Section 225 of the Criminal Justice Act 2003. The section was repealed in 2012, but there is a backlog of some 5,200 prisoners still serving sentences under it, of whom 3,600 have passed their tariff. At the present rate of release, which is running at about 400 a year, it will be nine years before those 3,600 will be out of prison.
This amendment concerns a particular group of prisoners who were given short or very short tariffs between 2005 and 2007, before the 2003 Act was amended. There are 773 of them. There is also a smaller group, who were given tariffs of less than two years after the Act was amended in 2007 and are serving their sentences under different provisions, but this amendment is not intended to affect them. There are good reasons for distinguishing between these two groups: first, the 773 to whom I have referred have been in prison much longer; secondly, we know more about them; and thirdly, and most importantly, they were sentenced before the Act was amended, when judges had no real discretion as to the sentence. They were bound to assume dangerousness if certain conditions were fulfilled and were bound then to impose an indeterminate sentence. The word was “must” and not “may”.
I have a breakdown of how long the 773 have already been prison. It is dated March 2013, and they have of course spent a further 15 months in prison since then. On that basis, 275 of them are now more than six years over tariff, 291 are more than five years over tariff and 198 are more than four years over tariff. I remind noble Lords that these are all prisoners who were given tariffs of under two years, some as little as nine months or even less. I will give your Lordships examples of the sort of offences that these prisoners committed. In April 2005, Mr Lee was given a tariff of nine months for criminal damage to the flat in which his former wife and children were living. In November 2005, Mr Wells was given 12 months for attempted robbery of a taxi driver. In November 2005, Mr James was given a tariff of two years for unlawful wounding with intent. As it happens, all those three prisoners have since had a successful appeal to the European Court of Human Rights, and I mention them only as examples of the sort of offences—run-of-the-mill offences, your Lordships may think—which these short tariff prisoners committed.
I turn to Section 128 of LASPO, which is referred to in Clause 9(3). When Parliament repealed Section 225, it was well aware of the backlog to which I have already referred, so it provided the Lord Chancellor with a power to alter the release test for those prisoners. It need no longer be the same as the release test for life sentence prisoners, nor need it depend in any way on an assessment of risk. It must be obvious, therefore, that Parliament gave the Lord Chancellor those powers in order to speed up the release of those prisoners and so reduce the backlog. It could have been given for no other purpose. But the Lord Chancellor—unfortunately, in my view—has declined to exercise that power.
The reason he gave in February 2013 was that it would not be right to interfere with the decisions of judges, who would have taken risk issues into account. But that reason has no validity at all in relation to the group of 773, since, for the reasons I have mentioned, their sentences were imposed when judges were obliged to assume dangerousness. In any event, when it enacted Section 128 of LASPO, Parliament must have intended the Lord Chancellor to interfere with the sentences imposed by judges; otherwise, what purpose did Section 128 serve?
The second reason given by the Lord Chancellor is that it would be irresponsible, indeed inconceivable, for him to release prisoners whom the Parole Board has assessed as continuing to pose risks. But again, that was surely the whole point of giving him the power to alter the release test. Is it to be said, therefore, that Parliament was being irresponsible in giving the Lord Chancellor that power?
Finally, there is the reason given by the Minister in his letter of 30 April. He said that Parliament did not instruct the Lord Chancellor to change the release test; it gave him discretion to do so. Of course that is true but it is well settled that, where a discretion is given by Parliament, it must be exercised so as to promote and not frustrate the purpose for which it was given; that is a principle that I know my noble and learned friend Lord Brown of Eaton-under-Heywood will develop further. The Minister gave as the reason for not changing the release test that it would not reduce the risk to the public. Of course it would not reduce the risk to the public but that was not the purpose for which the power was given. The purpose, I say again, was to speed up the release of those prisoners, not to reduce the risk.
I suggest that the Lord Chancellor must give better reasons than these for not exercising the power that he has been given. If the real reason is that the release of those prisoners would not go down well with the public, he should give that as the reason openly and then it can be tested, if necessary in court. It would have been far better if the Lord Chancellor had exercised the power he has been given but he has not. The purpose of this amendment is simply to give the Lord Chancellor a gentle push in the right direction.
Of course, I accept that some of those with tariffs of less than two years will be more serious than others, but there is one thing that they all have in common. We know for certain the sentence that they would have been given if the IPP sentence, now abolished, had
never been invented: they would have been given determinate sentences equal to twice the length of their tariffs. We know that, because that is how the judges fix the tariff in the first place; that is, at half the appropriate determinate sentence. Indeed, one way of dealing with the backlog would be in the case of short and medium-tariff prisoners simply to substitute determinate sentences of twice the length of their tariff.
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It follows from what I have said that, if they had been given determinate sentences, they would have been out long ago. No doubt some of them would have committed further offences; perhaps some of them would have been a cause of harm to the public. That is surely a risk which we must take; it is inherent in the whole idea of determinate sentences. The risk involved in releasing these 773 prisoners now is no greater than it would have been if they had been given determinate sentences instead of indeterminate sentences. Indeed, the risk would be less if they were released now in the way that I am suggesting, because they would be released on licence, so that, if they showed any signs of reoffending, they could be recalled.
The prison system depends on punishment being seen to be fair as between different prisoners. That is definitely not the case with those prisoners who, with very short tariffs, are still in prison. I know this from the many letters that I and others have received, both from them and their families. I shall read something in that connection which was said in the report prepared for the Prison Reform Trust in 2010. At page 49 appear these words:
“It strikes us as fundamentally unfair to have two groups of prisoners with identical criminal histories, one group sentenced prior to July 2008, subject to indeterminate preventative sentences, and the other sentenced thereafter, and serving relatively short determinate sentences. The former group will watch the latter leave prison whilst they remain subject to indeterminate preventative detention—detention that was imposed in relation to offences which, by any measure, were of relatively low levels of seriousness”.
I agree with that comment, as I hope will the Committee. I even dare to hope that the Minister may agree with it, or at least give us some reason why he does not. I beg to move.