My Lords, this amendment relates to a group of 650 prisoners serving indeterminate sentences for the protection of the public under Section 225 of the Criminal Justice Act 2003. They are part of a much larger group of over 5,000 prisoners serving indeterminate sentences under that section. However, this amendment does not affect the larger group.
As your Lordships know, the IPP sentence has now been abolished. Mr Blunkett, who introduced the sentence in 2003, has accepted that although the idea was sound the implementation was disastrous—for which, I believe, he has apologised, a rare thing in politics. The problems became apparent very early on. As a result, Section 225 was amended in 2008. The amendment affected in two ways the group of prisoners with whom I am particularly concerned. First, the indeterminate sentence ceased to be available for those with a tariff of less than two years. Secondly, whereas the court was bound to assume under the provisions of the Act that the defendant was dangerous before 2008, that assumption ceased to apply after 2008. It was for the judge thereafter to decide in each case whether or not to impose an indeterminate sentence.
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So far, so good. But there was one great defect in the amending legislation, which I am afraid to say I failed to notice at the time. It made no provision at all for those who had already been given an indeterminate sentence with a tariff of less than two years before the amendment took effect. One therefore had this position: a defendant committing a minor offence—such as arson, wounding, or whatever it might be—before 2008 which merited a determinate sentence of, say, four years, would be given an indeterminate sentence with a tariff of two years, or half the notional determinate sentence. That was the way in which it was intended to work and did work. There was no alternative.
However, exactly the same defendant committing exactly the same offence after 2008 could not be given an indeterminate sentence; it was simply no longer available for him. He will have been given, correctly, a determinate sentence of four years. As a result, he will of course have been released years ago under the ordinary early release provisions entitling him to release at a halfway stage. Meanwhile, the 650 unfortunate defendants committing exactly the same offence before 2008 are still in prison. I suggest that it does not take much imagination to see the sense of injustice that that has created.
When we debated this matter in Committee, the picture was clear enough but the detailed figures were not available. Therefore, on 14 July, I put down a Question for Written Answer. On 1 September, not before time, I was told that the information,
“could be provided only at disproportionate cost”.—[Official Report, 26/9/14; col. WA 464.]
Happily, the Ministry of Justice had second thoughts and, last week, the figures were provided at last, just in time for this debate. Those figures have now been published. Your Lordships will not have seen those figures so I must ask the House to be patient as I summarise them. I think I can undertake that your Lordships will find them somewhat surprising. Eight
of these prisoners with whom I am concerned were given tariffs of less than three months. Twenty-two of them were given tariffs of less than six months; 27, tariffs of less than nine months; 64, tariffs of less than 12 months; 88, tariffs of less than 15 months; 114, tariffs of less than 18 months; and 327 of them, tariffs of less than 24 months. That makes 650 in all. The current assessment in relation to 500 of those 650 prisoners is that they present a very low or, at most, a medium risk of reoffending. The question arises as to how that can possibly have been allowed to happen. Those 650 are still in prison six, seven or even eight years after they completed those very short tariffs. How can that be justified?
I shall fast forward to 2012 when IPP sentences were abolished. On that occasion, the Government decided, rightly in my view, that something must be done about the backlog. By Section 128 of LASPO, the Lord Chancellor was given power to amend the release test for these IPP prisoners so that it was no longer necessary for them to satisfy the ordinary release test which applies in the case of life-sentence prisoners. In other words, the test needs no longer to depend on risk. Surely, it must be obvious that the Lord Chancellor was given that power for one purpose only; that is, in order to speed up the release of these IPP prisoners who are still in prison. There could, quite literally, have been no other purpose. Perhaps I may come back yet again to the 650 prisoners. Currently, they are being released at the rate of 120 a year. Therefore, it will be at least five more years before the backlog in their respect is cleared, in addition to the six, seven or eight years by which they have already exceeded their tariff.
This power was given to the Lord Chancellor by a Conservative Government when Ken Clarke was Lord Chancellor. However, the present Lord Chancellor has declined to exercise that power. The question is: why? He has given only two reasons in the correspondence that I have had with him. In February 2013, he said that it would not be right to interfere with the decision of judges who had taken risk management issues into account. That was just plain wrong. The judges who passed these sentences had not taken risk management issues into account. As already explained, they were bound to assume dangerousness until the Act was amended.
The second reason, which was given a year later, was no better. He said:
“It would be inconceivable and indeed irresponsible for the Government to release individuals that the … Parole Board … assess as continuing to pose risks to the public”.
He said that he could not “countenance such a change”. The difficulty with that as a reason is that it totally disregards Section 128 of LASPO. The whole purpose of Section 128 was to enable the Lord Chancellor to change the release test. Was it then irresponsible of Parliament to give him that power? Is it inconceivable that Parliament intended him to use that power? There surely must be some other reason why the Lord Chancellor has declined to exercise the powers which he has been given. But as to that we can only speculate. I hope that the Minister can enlighten us.
In March, a leader in the Times ended:
“The scandal Mr Grayling should address is that a process set out in law”,
has not been “followed in life”. It must be followed now. I suggest that “scandal” is not too strong a word in this context. The Lord Chancellor had a chance to address that scandal when we debated this amendment in July but he did not take it. The Minister, when he came to reply, gave the same reason—the first reason—that had been given by the Lord Chancellor. He pointed out that the power he had been given was discretionary, which of course is quite right, so it was said that he need give no reason at all, and that was it. I find that totally unsatisfactory.
The question then is: what should we do? As the Lord Chancellor has declined to exercise the discretion that he has been given by Parliament, it seems to me that we in Parliament must now take the matter back into our own hands and exercise the discretion ourselves. That is the sole purpose of the amendment.
Years ago, in a passage often quoted by the noble Lord, Lord Ramsbotham, Winston Churchill said that the one infallible test of any civilised country is the way it treats its prisoners. I suggest that the current Lord Chancellor would do well to keep that advice in mind. Thus any judge would tell you that justice as a concept is indivisible. Victims are of course entitled to justice, and so are members of the public, but so too are prisoners. Indeed, the prison system only really works when sentences are seen to be fair as between one prisoner and another. That is one of the basic principles of all sentencing. Otherwise there will surely be trouble.
Last week I attended a meeting of the Constitution Committee at which the Lord Chancellor gave evidence. He said much about his stewardship role over the judiciary but nothing at all about his duty as Lord Chancellor—indeed, his primary duty under Section 1 of the Constitutional Reform Act 2005—to uphold the rule of law in all its aspects, until he was gently reminded of that matter by the chairman. Nor did he say anything about the role of the Lord Chancellor as custodian of the constitutional values of this country. I found that surprising and very worrying. Fairness, as indeed he must know, lies at the very heart of the rule of law.
The purpose of this amendment is to bring back to some 650 of our prisoners a sense that they too are entitled to a measure of justice and fairness under the rule of law, which the Lord Chancellor is bound to uphold. I beg to move.