My Lords, in the absence of the noble and learned Lord, Lord Thomas of Cwmgiedd, who is abroad at the moment, I move this amendment and will speak to the others in this group, save for Amendments 146A, 174 and 175 which stand in the name of the noble Baroness, Lady Hamwee.
Clause 44 enables the Secretary of State to refer a decision of the Parole Board to release what is known as a top-tier prisoner for a judicial decision either to affirm or to quash a decision of the Parole Board. Top-tier prisoners are those who have committed the most serious offences. The Bill identifies the Upper Tribunal as the court to which referrals will be made, save in cases where there is sensitive material, in which case the court is the High Court.
The principal amendment in this group, which would amend Clause 44, is to propose that all referrals go to the High Court; in particular, a
“Divisional Court of the King’s Bench Division”.
The other amendments that we propose make necessary changes elsewhere. The reason for proposing these amendments is to ensure that the judicial decision is made by a court whose members are well equipped by experience to make the necessary assessment of risk.
The background is that the cases will necessarily involve serious offending and be referred by the Secretary of State because of at least an unease about the decision of the Parole Board. That Parole Board will be made up of individuals with considerable experience in evaluating risk in the context of criminal offending. Any review or reconsideration should be conducted by a court that comprises judges with similar such experience. None of the chambers of the Upper Tribunal currently has members with that necessary experience, but the High Court does.
A Divisional Court of the King’s Bench Division deals with criminal cases in the High Court. It is almost always composed of judges who sit in the Criminal Division of the Court of Appeal; that is, a Lord or Lady Justice and a High Court judge. Those judges have extensive criminal experience; in particular, when dealing with sentencing, either at first instance as trial judges or on appeal. They are used to making decisions which require them to evaluate risk and, in particular, whether an offender is a dangerous offender, which leads to a suite of different sentencing options. In those circumstances, they are well suited to the task which the Bill will empower the Secretary of State to require a court to undertake.
The Bill itself envisages that the High Court will perform this role in some cases. This amendment suggests that it would be more effective, and deliver the outcome that the Bill seeks, were the High Court always to be the destination for these referrals. I beg to move.