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Baroness Kennedy of The Shaws: I, too, add my voice to those expressing concern about these parts of the Bill. The current position of Britain's prisons is nothing short of a scandal. The idea that the Government are adding to the shame of British prisons seems extraordinary. Sometimes when I ask how we can be travelling this road, I am told that the rationale is that we can empty the prisons only of people at the lesser end, and we can increase community service for offenders as an alternative to prison only if we are seen to be tough on those who commit serious crimes. The veneer is that we are tough in order to be kind.

That rationale is not good enough. Politicians should make the political weather. They should explain to the public why we need to reduce the numbers of people going to prison. The idea that we can justify that only by becoming punishers of an extreme kind at the serious end is ridiculous. This is about trying to justify what is sensible, rather than giving the strong, good argument that people with problems, such as drug addicts and alcoholics, need alternatives. Rather than arguing from a position of justice and strength, the argument will be, "Look at us, you cannot accuse us of being soft. Here we are being tough at the other end of the scale".

I ask the Government to take account of the fact that the provisions will ratchet up sentencing everywhere because the sentencing culture will become one of increase. Even if sentences are increased only at the serious end of crime, it will ratchet up sentencing everywhere. That is why the thinking is so profoundly wrong.

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I wish to speak in particular about how such legislation affects the morale in prisons. It has not been taken into account that the increases will introduce to prisons the sense of hopelessness that comes with such incredibly long sentences, nor how it makes it difficult for prison officers to try to manage prisons.

I hope that the Government will think again on the matter. I do not believe for one minute that the public will be persuaded. The public are prepared and open to a much more nuanced, considered argument about what ought to happen to offenders and how they should be dealt with in our prison system.

Lord Hylton: The noble Lords, Lord Thomas of Gresford and Lord Carlisle, have rightly drawn attention to the financial and organisational costs that this chapter of the Bill will impose. The Government seem to be asking Parliament to write a blank cheque for unknown costs that might not be honoured because they will produce retrenchment and cuts in other parts of the Prison Service.

I shall concentrate on the human costs of the legislation—initially, from the prisoner's point of view. If he or she is faced with a long, fixed-term or indeterminate sentence, with no possibility of release, why bother to change? Why not just stay the same, and in a violent and dangerous condition?

Whole-life tariffs are likely to lead to individual despair and, very often, to suicide. The noble Baroness, Lady Kennedy of The Shaws, was right to ask about the legislation's effect on prison staff. Prisons will be severely tempted to become just warehouses of people. Staff will be able to shrug their shoulders and lay aside any attempt to get close to a prisoner, to help him forward or to help him to improve himself. The legislation is totally retrograde.

Lord Ackner: I wish to make the following point since the words "ratchet up" have been used, but I shall seek to develop it later. Schedule 17, to which we shall come in due course, ratchets up by 50 per cent or thereabouts the existing sentences for murder. They were the subject matter of guidelines issued by the Lord Chief Justice through a practice direction last year, after the Sentencing Advisory Panel had asked that the subject be addressed and the Lord Chief Justice had agreed the matter with the panel. He then communicated the resulting view to the Home Secretary, the Attorney-General and a third category. They made very slight alterations, and that was that.

As the Committee knows, Schedule 17 was produced as a conditioned reflex action by the Home Secretary to learning that, as a politician, he was no longer entitled to any say in how long convicted murderers should stay in prison. The figures that he has laid down—from whole life, to 30 years and then 15 years on the subjectively chosen categories of murder—increase those guidelines by about 50 per cent. The Home Secretary has totally overlooked the fact that the guidelines are part of a sentencing practice that covers all associated crime.

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If the sentence for murder is increased by 50 per cent, the same approach has to be adopted for all other serious crimes. That has been totally overlooked by the Home Secretary. He talked about the delay factor, which applies in murder cases because those convicted would have had to do some time before their extended sentences came into operation. So, all serious offences have to go up by 50 per cent. That will render prisons totally inadequate to house those subject to those sentences and the cost of the measure will run into millions of pounds.

In Schedule 17, the Home Secretary has automatically ratcheted up by about 50 per cent the sentences for murder and all serious crimes in the teeth of sentencing guidelines that were issued by the Lord Chief Justice as a practice direction after having consulted with and got the concurrence of the Home Secretary and the Attorney-General.

Lord Carlile of Berriew: I agree with what was said by my noble friend Lord Thomas of Gresford and others about the merits of the clause. However, I wanted to add one point that relates to Clauses 215 and 216 and I hope that this is an appropriate time to make it.

If we have this new and, in my view, artificial category of serious offences for offences that already attract very significant sentences by judges exercising their daily judicial discretion, we will lengthen trials and the Crown Court process very considerably. No defendant faced with the possibility of a judge making a decision such as that provided for in Clause 216(1)(b) as a result of the categorisation of a serious offence in Clause 215, would risk pleading guilty. No lawyer would advise him to take that risk.

We are not allowed to plea bargain in the Crown Courts of England and Wales—officially, at least. However, it is possible that the provisions would actually lead to a new form of illegitimate plea bargaining by counsel going into the judge's room to ask whether the defendant poses a significant risk to members of the public as provided for in Clause 216.

The Government, quite rightly in my view, complain about the length of time taken over Crown Court trials and that not enough people plead guilty. The Government constantly remind us, as do judges, of the discounts available to people who plead guilty. The introduction of these two sections, including the category of serious offences in Clause 215, will be completely counter-productive and will clog up the courts with serious cases. Do the Government want that?

3.45 p.m.

Baroness Scotland of Asthal: I will deal first with that last point made by the noble Lord, Lord Carlile. He said that the provisions may lead to lengthening sentences and an additional element of gaming. Of course, we expect—and my experience would promote the idea—that lawyers will continue to do that which they have always done with honour and integrity and advise their clients properly. If their clients disclose to

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them that they are guilty, I am sure that lawyers would continue to tell them that they must plead guilty. I hope that the noble Lord, Lord Carlile, was not seeking to suggest any impropriety in that regard.

Lord Carlile of Berriew: I am amazed that the noble Baroness could even imagine that I was. She knows from her own experience that, every day in the courts, defendants deny offences and their lawyers give them advice on their prospects of acquittal. The nature of the advice given to those clients depends upon the statutory provisions that this Parliament imposes on the courts. No responsible lawyer, in giving advice, would fail to give account to the full range of statutory provisions, including those relating to sentences.

I remind the noble Baroness that it is commonplace in murder cases for defendants to be advised—completely properly and honourably by their counsel—whether to plead guilty, according, in part, to their prospects of acquittal of murder and conviction of the alternative of manslaughter.

Baroness Scotland of Asthal: I hear what the noble Lord says. Perhaps this is not the appropriate moment to enter into a detailed debate with him on those issues. However, in relation to dangerousness, the whole point of Clauses 215 and 216 is the protection of the public. In some cases, the assessment of dangerousness will be critical. It is not proposed that these provisions will extend improperly the investigation of those issues.

To take up the points made by the noble Lord, Lord Thomas of Gresford, the increase in the information that would be before the courts will enable them to come to a better informed judicial assessment about the precise nature of the offender and the offending pattern of behaviour and seek to address those properly. I say this as clearly as I can: by introducing these provisions, it is not the intention of the Government to accelerate or exacerbate the prison population. However, we do intend to ensure that a just result is available when dealing with these matters.

Of course, I accept what the noble Lord, Lord Dholakia, said about the nature of Amendments Nos. 195AA, 195AB, 197A and 197B because they are probing amendments. I will therefore not deal with their precise detail, but I will deal with them generically. The alternative definitions put forward in the amendments would create a higher threshold for the dangerousness provisions, thus potentially jeopardising the safety of the public. We will accordingly resist them. All sexual and violent offences listed in Schedule 12 carrying maximum penalties of 10 years or more are sufficiently serious to attract this sentence. The decision about whether the sentence of public protection will be passed will still be dependent on whether the court considers that the definition of dangerousness is met in each individual case.

Amendments Nos. 195AB, 197A and 197B have been crafted so as to restrict the automatic assumption of dangerousness to offenders with one or more previous convictions for offences of a serious sexual or violent nature. We have considered the matter

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carefully, and we think that any offender who appears before a court for a second sexual or violent offence must be considered a threat to the public, regardless of whether the offences were of a serious nature. Restricting the provisions to offences of a serious sexual and violent nature could result in dangerous offenders being sentenced to a determinate rather than indeterminate sentence, thus causing an unnecessary risk of harm to the public. It is for that reason that the amendments should be resisted.

The Bill provides a valuable safety net, to ensure that all offenders convicted of two relevant offences are assumed to be dangerous, prior to the passing of the sentence. We also hope that it will have a deterrent effect on offenders convicted of a single relevant offence, as they will know that, if they commit a second relevant offence, they will also be assumed to be dangerous. However, the clause allows the court to disregard the assumption of dangerousness in cases in which it considers it, on the basis of all the evidence, to be unreasonable. We will still have the safety net provided by the proper exercise of judicial discretion.

Amendments Nos. 195AC and 195AD would remove certain violent offences from the list. It may be right to take the opportunity to say that including an offence on the list of specified offences does not automatically mean that conviction of one of those offences will result in the passing of one of the new sentences for dangerous offenders. In all cases in which an offender is convicted of a trigger offence, it will be up to the court to decide whether the offender poses a significant risk of serious harm to members of the public through the commission of further specified offences. If the court considers that the offender does not pose such a risk, it may not pass one of the new dangerousness sentences. We are talking about violent and potentially life-endangering offences that carry severe penalties, ranging from three years' imprisonment for affray to 10 years for rioting. It is right that the court should have the option to impose such a sentence on those convicted of such offences to protect the public from potentially dangerous offenders in cases in which it is necessary. For those reasons, I cannot accept the amendment.

The noble Lord, Lord Thomas of Gresford, and others asked about the cost and the position of the Parole Board. The Parole Board will no longer deal with release decisions relating to prisoners who are serving determinate sentences of 12 months or more—the non-dangerous offenders. It will deal only with dangerous offenders, which will, we hope, balance its workload. The courts already assess dangerousness under Section 109 of the Powers of Criminal Courts (Sentencing) Act 2000 and current extended sentences. It is right that those provisions should provide a helpful element of clarity, distinguishing offences that need greater attention from those that are less serious.

My noble friend Lady Kennedy of The Shaws asked about the effect on prisons. The noble Lord, Lord Hylton, also referred to the Prison Service. It is right for me to share with the Committee the feelings of many working in the prisons about the changes that we are making. It is not just a matter of lengthening

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sentences. The Committee will know that prisons up and down our country are asked to do some things differently. Prison officers have told me, when I have had the advantage of meeting them, that they welcome the changes, including the increased use of risk assessment, from the moment at which the prisoner arrives in prison, and the increase in case management—we will continue with that—so that, once we have assessed the risks for the prisoner, we can assess the sort of things that we need to do with him. We now have a better case management and progression process with regard to discharge. We have the New Deal elements going in. People are considering the sorts of job that the prisoners can do and are planning their discharge in a better way. Jobcentre Plus is going into many of our prisons and making a difference. When I visited Bristol prison recently, I got from the prison officers a clear indication that they welcomed the emphasis that we put on trying to rehabilitate prisoners through drug treatment and the other things that are being done to mitigate the problems.

I say to my noble friend that, far from depressing prison officers, the things that the Government are doing seem to be cheering them up. We have got balance. In these provisions, we are trying to maintain a proper balance.

The noble and learned Lord, Lord Ackner, my noble friend Lady Kennedy of The Shaws and the noble Lord, Lord Hylton, talked about the ratcheting-up effect. The noble Lord, Lord Thomas of Gresford, may also have spoken about that. The upward effect on the prison population is balanced out by the automatic release provisions at the halfway point for other sentences of 12 months or more. The structure that we have put in place for rehabilitation, custody minus, custody plus and the intermediate sentences gives us a balanced portfolio.

The noble Lord, Lord Carlile of Berriew, made some points about Clause 216. Clause 216 applies to serious offences that carry a sentence of 10 years or more. Indeterminate sentences are available only for offences carrying sentences of more than 10 years, including life. The life sentence is available only for offences carrying life imprisonment. Clause 218, which relates to extended sentences, covers offences carrying sentences of two years or more but under 10 years. All the provisions are designed to deal with those who are or may become a danger to the public and need specific and special attention, if the public are to be kept safe. We think that we have got the balance right, and we do not believe that the provisions will lengthen trials, as some fear, or that they will have the overall impact of ratcheting up other sentences.

The Committee will know that murder and other serious offences tended to be in one category. The Sentencing Guidelines Council will have an important role in setting the boundaries for the other offences. The way in which the system is integrated will enhance the sense of security, give the courts a better grasp of the facts needed to come to an informed decision and enable us to discharge with a greater degree of

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certainty and security those who are not a serious threat to the public and do not create any concern about dangerousness. We will be able to monitor more effectively those who present such a danger.

I hope that, with that explanation, noble Lords will not pursue the amendments.


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