My Lords, this has been an excellent and very well informed debate, with contributions from sources well versed in the law and experienced in criminal law, and sources who had occasion to come into contact with the law and its implications. I am grateful for all those contributions, many of which were extremely economical—I congratulate noble Lords on their restraint in allowing the House to proceed—but powerful.
We return to this subject of IPP prisoners who remain in prison despite the fact that the sentence has now been abolished and may not be imposed on offenders convicted after December 2012. We debated a very similar amendment at length in Committee so I do not intend to rehearse the entire debate we had then. Noble Lords are well aware of the Government’s position and we do not think it would be right or appropriate to retrospectively alter IPP sentences that had been lawfully imposed prior to the sentence’s abolition, particularly because these sentences were imposed with public protection issues in mind. However, I recognise, as many noble Lords have said, that fairness—an elusive concept though that is—should be at the forefront in considering these issues, as should the equally elusive concept of justice that is vital in considering issues of this sort. I am also painfully aware of the implications of keeping any prisoner one day longer than he or she ought to be kept in prison because of the expense involved, expense that we can ill afford, but the Secretary of State has to balance concepts of fairness and justice with his duty to protect the public.
Perhaps I may make one or two observations about the history which has been summarised by noble Lords in the course of this debate. While echoing the worthwhile
tributes paid to the noble and learned Lord, Lord Lloyd, for his tenacity in this area, I cannot quite agree with his assessment of the disparity in position between short-tariff IPP offenders sentenced before the 2008 reforms and those sentenced afterwards. It is not the case that, prior to 2008, courts were without any discretion in imposing IPP sentences. It was in the court’s discretion to judge whether the offender met the high risk threshold set out in the 2003 Act—did he present a significant risk of serious harm? The presumption that he presented such a risk if he had committed a previous Schedule 15 offence was a rebuttable presumption, and the court was free to disregard it if it was not a reasonable view in the individual case. I do not deny that, where they found the offender to meet the dangerousness threshold, courts were indeed obliged to impose IPPs on eligible offenders, and that was plainly Parliament’s intention.
I should also stress that it remained possible to receive an IPP with a lower tariff than two years until IPPs were abolished by this Conservative-led Government by the LASPO Act 2012 where the offender had a serious previous conviction, and in fact a number continued to get short-tariff IPPs. It is likely that some of those sentenced to IPPs with short tariffs between 2005 and 2008 would have remained eligible for an IPP, and perhaps received an IPP after the 2008 reforms. I cannot agree, therefore, that this group of IPP prisoners can be presumed to be less dangerous than other IPP prisoners.
As I have said before, it is right that offenders serving indeterminate sentences of imprisonment for public protection—a species of preventive detention, as the noble and learned Lord, Lord Brown, said—should continue to be detained post tariff if their detention is necessary for the protection of the public and they are therefore not safe to release. The noble and learned Lord, Lord Lloyd, and a few others have seen an analysis of management information, prepared last year, relating to the situation of IPP prisoners who were sentenced prior to July 2008 with tariffs of under two years, who remained in prison and whose tariff had expired.
It is true that initially the cost of providing the information, which has been accurately summarised by the noble and learned Lord, was considered too high but, such was his tenacity and, as I understand it, such was the respect that the Ministry of Justice had for him, the information was provided and has been summarised by the noble and learned Lord. The position is that my colleague the Prisons Minister, Andrews Selous, has agreed with the House authorities that the information can be lodged in the House Library. It will take one week for this to appear but I confirm that he has requested that it be put in the Library. However, I can also confirm that the figures that the noble and learned Lord announced were accurate, so they have informed the debate in terms of the numbers and the periods in prison.
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In my view, this information provides clear evidence that the continued detention of short-tariff IPP prisoners remains justified, and the Parole Board still considers
that they pose an unacceptable risk to the general public and to themselves in many cases. In 2013, a sample of 100 prisoner cases from this group was subject to thorough analysis. Of these, the majority—80—were assessed as being at high risk of serious harm. None was assessed as being at low risk of serious harm.
We have recently provided further data on this group to the noble and learned Lord, Lord Lloyd. A total of 121, or 16%, of prisoners from the group that remained in custody as of 31 March 2013 achieved release during the 12-month period to 31 March 2014. Of those remaining in custody, the proportion of prisoners who are at high or very high risk of serious harm has increased to 83% of the group—again, with no prisoners assessed as being at low risk of serious harm.
It may be helpful if I briefly explain how the risk scores work in the data that some noble Lords will have seen. These data include OGRS scores, which deal with the risk of reconviction, and RoSH scores, which deal with the risk of serious harm. Although a proportion of IPP prisoners are at low risk of reconviction, the degree of harm that they are likely to cause if they reoffend is in most cases high or very high, in other cases medium but in no cases low. The fact that a substantial number were, in fact, approved for release clearly also demonstrates that, where the risk has reduced enough to be safely managed in the community, short-tariff IPP prisoners are being approved for release by the Parole Board using the current release test.
All IPP prisoners, irrespective of sentence length, must have their parole review upon tariff expiry, and at least every two years following that, before the independent Parole Board. As of 31 March 2014, 650 IPP prisoners were, as the noble and learned Lord said, still in custody, having received a tariff length of less than two years prior to the changes brought about by the 2008 Act. In accordance with policy, all these offenders should have had a parole review on their tariff expiry and subsequent reviews at least every two years. This means—this is an important point—that almost all, if not all, will have received at least three parole reviews concluding that they were not safe to release on grounds of risk of harm and public protection.
The noble and learned Lord, Lord Brown, and others say that this amendment would cause Parliament to bypass the Secretary of State. It would also cause it to bypass the decision-making by the Parole Board, which comes to its decisions on grounds of public protection. To release all of these prisoners now would be to run an unacceptable risk to the public. It would amount to a blanket judgment that goes against the repeated independent advice of the Parole Board, which has examined each case on an individual basis and decided that the risks to the public of release would be unacceptable.
I am sorry that the noble Lord, Lord Beecham, is unable to be more specific on why the party opposite will not be following the noble and learned Lord, Lord Lloyd, if he chooses to divide the House. However, it may be that the argument that would persuade his party is the protection of the public and the fact that
these prisoners—short tariff though they may have had—have been assessed by the Parole Board in accordance with the test.
There has been reference to Section 128 of the LASPO Act, which gives the Secretary of State a power to change the Parole Board’s release test for IPP prisoners. We have no current plans to use this power. The figures that I have just referred to suggest that the current system is operating properly to ensure that the most dangerous are not released and that those whose risk can be managed in the community are able to attain release. Greater numbers of IPP prisoners are now achieving release as they succeed in reducing their risk. As I have said to Parliament on a number of occasions, courses are increasingly being made available to IPP prisoners. The fact that a prisoner attends a course may assist in their assessment but it is no guarantee that he or she will become more suitable or eligible for release. Similarly, the fact that they do not attend a course does not preclude them from being assessed as suitable for release.
I shall now address the text of the amendment of the noble and learned Lord, Lord Lloyd. It would effectively, as I read it, lead to these prisoners being automatically released as it would mean that there would be no discretion for the Parole Board to do other than direct release. That is not the Government’s policy, as noble Lords are aware, and I would be unable to accept the amendment on those grounds. However, in my view, there would be difficulties with the amendment as it stands, regardless of the acceptability of the principle.
The amendment would add a subsection to Section 128 of the LASPO Act directing the Parole Board to release indeterminate prisoners who have a tariff of less than two years and who were sentenced prior to the 2008 changes to the Criminal Justice Act 2003. Section 128 gives the Secretary of State a power to change the Parole Board’s release test by order. The amendment appears to force the Parole Board to direct release of these prisoners without use of any discretion, even if it thinks it unsafe.
The retention of a Parole Board role in the process is presumably designed to align as much as possible with the current statutory arrangement. However, I think it would be problematic to give responsibility for release to the Parole Board if in fact there were no discretion for the Parole Board under this proposal. In addition, the use of the phrase “indeterminate sentence” leaves it doubtful whether life sentences that fit the criteria would also be caught, which I assume is not the intention.
I have already discussed the role of the Parole Board and I think that it was sufficiently covered during earlier debates. Whatever the difficulties the Parole Board is currently facing, the reality is that IPP prisoners continue to achieve release where they are able to show that any ongoing risk is capable of being managed effectively in the community. Since 2010, the number of IPP prisoner releases has grown, and we saw more than 400 IPP prisoner releases in 2012 and 2013.
Despite the force of the arguments, I hope that my response has persuaded the House that, highly well
intentioned though the amendment is, it is not one that we should support. I therefore ask the noble and learned Lord to withdraw it.