My Lords, I thank all noble Lords who have spoken. I will first briefly
recap some basic points that apply equally to the second and fourth groups of amendments that we will come to.
First, this Government recognise the highly regrettable history of this particular sentence. The Lord Chancellor himself has described IPP sentences as
“a stain on our justice system”.—[Official Report, Commons, 15/5/23; col. 592.]
As the noble and learned Lord, Lord Thomas of Cwmgiedd, rightly said, the question is what should be done. I will briefly summarise, to encapsulate our debate, what the Government think should be done.
The Government are making some very determined efforts to mitigate the situation of IPP offenders who are still subject to a sentence that was abolished in 2012. To bring noble Lords up to date, there were originally approximately 8,100 people subject to these sentences. Of those people, as of last December 1,227 had never been released, 1,625 had been released and later recalled, and there were still about 3,000 on licence in the community. Currently, as the noble and learned Lord, Lord Thomas, pointed out, an offender cannot apply to the Parole Board to have their licence terminated until 10 years after first release.
Taking the released and then recalled population first, this is a challenge because that population is slowly rising. The major statutory change in Clause 48 will reduce the qualifying period before the offender becomes eligible for licence termination from 10 years to three years from first release, with a presumption of termination after three years and an automatic termination two years thereafter—provided that the offender can pass two years in the community without further recall. That is, as I think the noble and learned Lord, Lord Thomas, said, a huge change and a major achievement for the Government to be proposing. It should substantially mitigate the problem of prisoners being released and then recalled, which we will come to in more detail as this debate continues.
Regarding the second cohort—perhaps the first, depending on your point of view—of those who have never been released, most of these people have come up before the Parole Board, which is responsible for deciding on their release. In many cases, this has happened many times and the Parole Board has decided that it is not safe to release them as the risk to the public is too great. What is the Government’s approach to that problem? Spurred on by the 2022 report of the JSC, to which I pay tribute, the Government are developing a robust, coherent and detailed action plan in consultation with relevant stakeholders, including the families, with the aim that each prisoner has a tailored sentence plan, appropriate support and clear objectives to work towards eventual release.
This last cohort is difficult, as the noble Lord, Lord Ponsonby, has just pointed out because, aside from having committed very serious offences, many suffer from trauma, mental health issues, substance issues and so on. However, the Government are determined to see this cohort further reduced and to get rid of the idea that there is no hope. In the Government’s view, no one has given up on the IPP prisoners who have never been released. They have to be worked on. That is a hard task, but one that the Government—any Government—should take on.
For example, the number of those released has been reducing over the last two years at roughly 200 per year. There are now 200 of these prisoners in open conditions who are being prepared for further release. It is not as if nothing is going on or as if things are just vegetating and no one cares. The Government are very focused on doing something about this most difficult cohort. That is the overall framework, which I hope your Lordships will view, despite the difficulties of the past, as something of a new beginning for the future.
With that background, I turn to Amendments 149 to 151 in the name of the noble and learned Lord, Lord Thomas. The effect of these would be that, if the Parole Board refused to terminate the licence at the new three-year point, the offender would have the right to apply annually to the Parole Board for a licence determination. As the Government understand it, the offender would be in the community rather than waiting out the two-year period, which results in the automatic termination of the licence. The offender would be able to apply to the Parole Board for termination after one year.
The Government recognise that released offenders in many cases need better support and have accepted all the recommendations to that effect in the recent report of the Chief Inspector of Probation on the recalls of IPP prisoners. However, the Government are not at present persuaded of the need for Amendments 149 to 151, on the following basis. If the offender has applied and the Parole Board, after three years, does not terminate the licence at that point, it does not seem to the Government unreasonable to expect the offender to spend two years in the community with the incentive of the certainty of licence termination at the end of that period. This amendment would enable the offender to make an interim application at the end of year four. That would impose further resource costs on the Probation Service and Parole Board because reports have to be prepared, hearings have to be convened and so forth. It would necessarily take the Parole Board several months to process that application.
We have come back several times in this debate to the pressures on the Parole Board and the time these applications take. It appears to the Government that, even if you could apply after year four rather than waiting until the end of year five, there is probably only a marginal gain for the offender. The Government are not at the moment persuaded on these amendments, although the Government continue to be in listening mode on this part of the Bill, as on every other part of the Bill.
Amendments 152 and 153, also moved by the noble and learned Lord, Lord Thomas, address what one could call in shorthand “questionable recalls”. I think there are two sorts of recall that we should be thinking about. The amendments suggest the possibility of the Parole Board disregarding a recall for the purpose of calculating the two-year period. Perhaps I may first clarify what is considered to be the existing position. If a recall is based on a fundamental mistake of fact—for example, the probation officer thinks that the offender has missed an appointment but the offender is in hospital because of a road accident the previous day—the Lord Chancellor considers that he already has the
power in such a clear case to treat the recall as a nullity, as never having happened. That is a relatively clear case and I respectfully suggest that Amendment 152 is unnecessary.
The situation envisaged by Amendment 153 is effectively a challenge to the judgment call made by the probation officer about the recall. Technically it is a decision by the Secretary of State, but in practice of course it depends on the report by the probation officer. Amendment 153 would require the validity of that recall—the “appropriateness” of that recall, to use the word in the amendment—to be considered by the Parole Board and treated as a nullity if the board then considers that the recall decision was not appropriate. Although the Government understand the thinking behind the amendment, His Majesty’s Inspectorate of Probation found, in both 2020 and much more recently in 2023, that in practice HMPPS recall decisions are very largely appropriate.
At present, the Parole Board does not have any power to adjudicate on the appropriateness of the recall; its task is to decide on the issue of public protection and whether the offender is safe to release. For that purpose, the Parole Board will typically have much wider and more detailed information than was available to the individual probation officer faced with the recall decision. Amendment 153 would, however, turn the Parole Board process into an appeal from the recall decision and require the Parole Board, in effect, to second-guess what it would have done had it been the probation officer with the information then available to the probation officer.