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Lord Falconer of Thoroton: My Lords, I may have misheard the noble Lord but I thought that he mentioned an estimate of 30 years.

Lord Dholakia: My Lords, I referred to 30 gaols, not 30 years. That would be too long a period. I do not know what size the prison population will be then.

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Is it also true that nearly 500 prisoners are at present held in police cells? It is with those concerns that I ask the Minister to explain whether the statutory instrument is a measure to alleviate the present crisis.

We are talking about extending 60 days in the community to 90 days. Would support programmes be available in the community and is the probation service adequately resourced towards meeting these needs? Have we any statistics of reoffending rates of people who are tagged? I am aware that short-term prisoners do not have probation supervision if their sentences last less than 12 months.

The success of any such orders will depend on a holistic approach undertaken by the probation service, social workers and voluntary agencies such as NACRO. I declare my interest as chairman of NACRO. Voluntary organisations are poorly resourced. The success of the statutory instrument will depend on how we assist those who will help to take pressure off our prison system. I support the Government's intention in relation to the statutory instrument.

Lord Carlisle of Bucklow: My Lords, it is a great pleasure to follow the noble Lord, Lord Dholakia. I declare an interest as the chairman of the committee that was set up to consider the working of the parole system by the noble Lord, Lord Hurd, when he was Home Secretary. The noble Lord, Lord Dholakia, was a prominent and helpful member of that committee.

Obviously, faced with a prison population explosion of some 72,000 people in prison at present—I believe that that is an increase of over 12,000 during the lifetime of this Government—one cannot but welcome any measure that attempts to reduce the size of that population. One cannot, therefore, be other than grateful for any proposals that reduce sentences, particularly of those serving short sentences of imprisonment.

However, I should like to ask the noble and learned Lord one or two questions that I confess are based on confusion—I am probably completely wrong—about the relationship between the home curfew and the parole systems. The noble and learned Lord may remember that the committee that proposed the parole provisions in the 1991 Act was set up due to the considerable lack of confidence of the judiciary in the parole system at that time. The complaints were basically twofold: first, that only serving a third of a sentence constituted too great a disparity with regard to the sentences passed to be acceptable. Secondly, those who carried out the day-to-day work in the Crown Courts, where the vast majority of crime is tried, found that although sentences were passed that differed in length for two offenders—as one was identified as the ringleader—the man who served six months and the man who served 18 months might well come out of prison on the same day. As I remember it, that was a cause of the loss of confidence of the judiciary in the system.

If I understand the order correctly, it extends the period of curfew that comes before the period of automatic release at the halfway stage. I am glad to see

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that the noble and learned Lord nods as I must admit that I was totally confused when I first read the order. The explanatory notes refer to the 1991 Act. I then discovered that the 1991 Act had been totally changed and contained no reference to this matter at all. What is the effect of the measure taken as a whole? I refer to increasing the period of curfew for those serving 12 months to a period equal to one-quarter of the term. I assume that a term of less than 12 months indicates that the sentence passed was one of 12 months or less. If they are to have a curfew of a quarter of the total sentence, they will come out, or can come out—as I understand the position, some may but some may not—at the end of three months. We are back in the situation where the judge who tries to differentiate between the sentences imposed on two prisoners appearing before him for a series, say, of housebreaking offences, will find that any attempt he makes to differentiate between the sentences can be done away with by the arbitrary decision, presumably on the advice of a prison governor, of the Home Secretary. That system is totally selective and seems to say that, although the court may have wished to differentiate between the period of imprisonment, the Government are doing away with that differentiation.

If we say, as the order does, that, for a term of 12 months or more, a curfew may last for 90 days—three months—someone who gets 18 months, who would have come out at nine months and spent the other nine months on remission, will now be eligible to come out at six months, on the say-so of the Prison Service, without reference to the penalty imposed by the court. I hope that I make my point so that it can be understood. We are in danger of going back to the use of administrative methods of dealing with those in prison that emasculate the differences in sentences passed by the courts. I repeat: if my recollection is correct—I saw the noble Lord, Lord Dholakia, nod—that was one of the reasons why there was a loss of confidence in the parole system.

One cannot oppose any proposal to reduce the prison population, but I ask the Minister to confirm that my understanding of the situation is correct. Secondly, we should, at least, pass on a warning to the Home Office of the dangers of looking at alternative imprisonment in ways that interfere with the degree of penalty that the courts intended to pass.

Lord Windlesham: My Lords, mine, too, is a voice from the past. I declare an interest: I served as chairman of the Parole Board for England and Wales for much of the 1980s, in the period that led up to the review of the parole system by a committee headed by my noble friend Lord Carlisle of Bucklow. The substantial changes in parole made by the Criminal Justice Act 1991 resulted from the structure recommended in that review and largely accepted by the then Home Secretary.

Since then, we have seen the prison population go up and up. That is partly because of the pattern of offending, but it is also because of changes in the pressures brought about by public opinion. Judges and

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magistrates are not immune from such opinion. If the view is that only custodial sentences qualify as real punishment, it is natural that there will be some response. The result was a search for expedient ways of relieving the pressure on the prisons. As all the critics have said, talking up sentencing results in a demand for additional prison places. The noble and learned Lord will have found in his relatively short stay at the Home Office that it takes a long time to agree, get the money for and build new penal establishments. In the meantime, the population of sentenced offenders increases. Since the 1991 Act, there has been progressive erosion of what was, for the first time for many years, a rational and principled system of sentencing, providing for a rational system of early release.

Tagging, once a dirty word, has become widely accepted. The Minister was entitled to claim that it has been regarded as successful. I have lived through the entire era of electronic tagging, from the first phase—when it was bitterly opposed by the Home Office—to its gradual introduction. Now, there is another fundamental change looming on the horizon. At first, the acceptance of tagging as a release mechanism was in the form of a selective scheme, conducted by prison governors, who were regarded as the people within the penal establishment who could make judgments as to who was a good risk. That placed a lot on the governors' shoulders, but, on the whole, it was successful, if measured in terms of re-offending. As the Minister said, re-offending rates were relatively low, and selection was cautiously handled.

That system was selective, but now there is to be a major change. The words used by the Minister just now were, I think, "presumptively entitled". Prisoners serving shorter sentences—that is, under 12 months—will be presumptively entitled to early release. That is a fundamental change, from a selective system to one in which everyone will qualify, unless there are strong grounds for saying that there should be no early release. I should like to hear the Minister's comments on that analysis.

I have one other point. I assume that the probation service will be responsible for supervising prisoners released early under home detention curfew, but I would like confirmation that that assumption is correct. I assume that it must be because, if breaches occur, they will take place in the community, and the probation service will be responsible for bringing offenders back into custody. As the Minister will have found, the probation service is still recovering from the most fundamental re-organisation in its recent history. I have two questions. What prior consultation was there with the probation service about the extension to presumptive entitlement and away from selective release? Secondly, what additional resources will be made available for the service to carry out its new responsibilities?

Lord Falconer of Thoroton: My Lords, I am grateful to all noble Lords who contributed to this short but fascinating debate.

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I shall deal first with the points raised by the noble Viscount, Lord Bridgeman. He supported—or did not oppose—the order and said that they would examine re-offending rates. The noble Viscount heard what I said about the experience that we have had already. The system is a useful method of helping people back into the community and a means of helping to manage the size of the prison population. In my opening remarks, I said that fewer than 3 per cent of curfewees were reported to have re-offended while under the curfew. I can give further figures on re-offending: 9 per cent of those given home detention curfew re-offend within six months of release. But that figure can be compared with the number of prisoners who are not given HDC and who re-offend within six months after release; namely, 40 per cent. So the comparison looks quite favourable in relation to home detention curfew.

I am grateful for the support expressed by the noble Lord, Lord Dholakia, for the basic provisions of the order. He asked what are the rates of re-offending. I hope that I answered that in my reply to the noble Viscount, Lord Bridgeman. He asked specifically about the position in relation to prison overcrowding. It is accepted on all sides that the prisons are getting fuller and fuller. We have a strategy which covers the building of more prison places. In addition, the noble Lord, Lord Dholakia, will have heard the announcement made some weeks ago by my right honourable friend the Home Secretary that 60 million would be spent on building more prison capacity. He will be aware that in the last Budget more provision was made available.

The noble Lord will also be aware that the Lord Chancellor and the Attorney-General issued a joint statement not long ago identifying people who should go to prison; namely, those who were dangerous, sexual or violent offenders and those who were guilty of seriously persistent offending; and indicating that for others the court should be more ready to consider community penalties.

The noble Lord asked what support would be available from the probation service in relation to those on home detention curfew. Home detention curfew is supervised by the probation service where it is dealing with young offenders and those serving 12 months or more.

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The noble Lord, Lord Windlesham, asked whether the probation service was consulted about the scheme. Yes, it was. He asked whether it was given extra resources. No extra resources were needed except in the very short term, and those have been provided.

The noble Lord, Lord Carlisle, gave an entirely accurate account of how the scheme works. It means that if a person is sentenced to between three months and four years, under existing provisions he would automatically get out after serving 50 per cent of the sentence. This provision allows a person to be released up to 90 days before that 50 per cent date, subject to the limitation that a person must serve a quarter of the sentence. So the noble Lord was right in identifying 12 months—which is the minimum sentence that a person can have to get the full benefit of the 90 days, because below 12 months it would be more than a quarter. If a person was sentenced to 12 months, he would get out on the 50 per cent rule at the six-month period, but because of HDC, which can now last for three months, he could get out after three months—which is exactly the proposition put.

The noble Lord, Lord Carlisle, raised concerns about that proposal. In effect, his proposition was that that might allow administrative procedures—he did not put it quite this way—to frustrate the intention of the court in passing the sentence. The way in which HDC would work would be subject to statutory exceptions which I outlined in my opening remarks. The prisoner would be released on HDC, subject to the governor making an assessment of risk in relation to re-offending or not complying with his curfew. So there would be that element of discretion—a point raised by the noble Lord, Lord Windlesham.

The provision should be applied consistently. Judges will obviously know that that is the background against which they sentence. It may have a greater impact on a shorter sentence than on a longer one. The longer the sentence, the less proportion of the sentence this will be. We think that it is sensible, so long as judges know that it is applied consistently and subject to the rules, and that it is a useful tool both in terms of managing the prison population and in terms of assisting people back into society after they have been in prison. The re-offending figures that I gave for the six months after release provide some support for that.

In the light of those remarks, I hope that I have answered all the questions raised. I commend the order to the House.

On Question, Motion agreed to.

        House adjourned at twenty-five minutes before seven o'clock.

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