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Lord Monson: I want to touch on an aspect of the matter that, to the best of my knowledge, has not so far been discussed.

Like the noble Lord, Lord Renton, and a great many others as the previous Division testifies, I am uneasy about the clause. I am uneasy about subsections (3) and (4) in particular. As I interpret them as an admitted layman, they seem to provide that an individual who might be expected at present to spend, for example, four or five years in prison after remission could in the future spend 10 or 20 years there for exactly the same crime if he is deemed to be dangerous. I am sure that most of us feel unhappy about the idea of keeping people behind bars, no longer because of what they have done, but because of what they might just possibly do in the future. That is exactly what will happen if men—and it will almost always be men—are kept in prison after they have served a period of years that the trial judge, as matters stand, has deemed appropriate and adequate—I stress the word "adequate"—for the purpose of deterrence and retribution. In other words, they will no longer be fairly punished for the crime or crimes of which they have been convicted; they will henceforth be held in preventive detention.

The Government may well be right in their argument that de facto preventive detention is the lesser of two evils and that the clause is therefore necessary. The noble Baroness has, as usual, made her case for the clause extremely effectively. However, if individuals are to be detained in prison after their normal release date, for the purpose not of punishment but of prevention, is it not right that their detention should be made as comfortable as possible, consistent with security?

For obvious reasons, open prisons are a non-starter for that kind of individual, but within a necessarily secure prison, should not such detainees, as they might fairly be described, be entitled, for example, to superior accommodation, better food, more family visits, a chance to earn money at the market rate and so on? If so, should not such entitlements, contingent of course on good behaviour, be enshrined in statute rather than merely left to the discretion of prison governors, always assuming that the prison governors have the power to exercise such discretion, which may or may not be the case?

I apologise for bouncing the matter on the Minister, but she is extremely quick on her feet. I would therefore be grateful if she would indicate, without in any way committing either herself or the Government,

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whether she agrees that there is force in my argument, in which case it may not be too late to take the matter forward on Report.

Lord Thomas of Gresford: I support the sentiments expressed by the noble Lord, Lord Monson. We on these Benches are unhappy with the provisions of Clause 216 because of the forensic exercise that has to be carried out. Reference is made to preventive detention as a familiar sentence from the past. We were used to dealing with that, but it was very much at the discretion of the judge to make such an order.

The provisions before us bring about the following: the advocate addresses the judge on the basis that he should not accept that there is a significant risk that the person in question will re-offend. The judge then comes to an opinion; he forms no more than an opinion. On the basis of that opinion, having heard argument on both sides, he comes to a conclusion. If that conclusion is adverse to the defendant, he must—there is no discretion—sentence him under Clause 216 to life imprisonment. The defendant receives life imprisonment not for what he has done, but for the judge's opinion of what he might do in the future. To us on these Benches, that is fundamentally wrong and we will address it further on Report.

5.15 p.m.

Baroness Scotland of Asthal: I am happy to explain Clause 216 further, because I appreciate that the noble Lord, Lord Monson, does not quite understand how the provisions come into play. I note that he was supported by the noble Lord, Lord Thomas of Gresford.

As I pointed out earlier, Clause 216 provides the new offence of imprisonment for public protection of sexual and violent offenders, aged 18 or over, who have been assessed to be dangerous. It is just those who are perceived as being dangerous who will be subject to the provisions.

Sexual and violent offenders who have been assessed as dangerous and who have committed "a serious offence" that carries a sentence of 10 years or more, as defined by Clause 215, must be sentenced either to imprisonment for public protection or to a discretionary life sentence. At the moment, all offenders other than those who have been sentenced to life imprisonment must be released after they have served two-thirds of their sentence, regardless of whether they continue to pose a serious risk to the public. There will be those who pose that risk, but they will be discharged.

The new sentence will ensure that such offenders cannot be released until their risk is considered manageable in the community. It therefore provides for indeterminate custody for that small group of offenders for whom a determinate sentence would not provide a sufficient guarantee of public safety. However, that must be seen in the context of everything that we are trying to achieve in prisons; that is, first, to address the nature of the underlying

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offending behaviour and, secondly, to try and rehabilitate, if rehabilitation is possible, some of the more serious offenders through training, education and opportunities. I have mentioned that once an offender is in prison, there will be an assessment of the nature of his difficulties and the risks that he poses so that, while he is in prison, we can seek to address those problems.

I obviously take account of the concerns expressed by the noble Lord, which were echoed by the noble Lord, Lord Thomas of Gresford. He said that if such offenders are to stay in prison for a very long time we should look seriously at how they are accommodated and the kind of conditions that we make available to them. I reassure the noble Lord that we intend to make sure that all prisoners benefit from the risk assessment procedure. If we are able to roll it out, and we hope to be able to do so over a period of time, the Prison Service will have the kind of tools necessary to make the assessment which will help to bring about change, but which will also identify those people who may not be as amenable to change as we would like and who therefore continue to pose a risk to members of the public.

Noble Lords will know that, tragically, there have been occasions when people have been released from custody and have re-offended in a relatively short compass. We wish to reduce the number of cases in which that happens. The only way we can do that is by instituting appropriate risk assessments on behalf of all the criminal justice agencies to try to limit the prospect of that happening. I understand the concerns of the noble Lord, but we consider the provisions to be helpful.

Lord Monson: I am grateful to the noble Baroness for that explanation. I believe I understand entirely what the Government are trying to do and the noble Baroness has made a good case for it. I merely ask that those who are kept on in prison beyond the normal time at which they would expect to be released, for the purposes of prevention rather than punishment, should be kept in as comfortable conditions as possible consistent with security.

Baroness Scotland of Asthal: We share that aspiration and we intend to do all we can to make sure that each prisoner is appropriately housed, bearing in mind the risks that they pose and the needs that they may have.

Clause 216, as amended, agreed to.

Clause 217 agreed to.

Clause 218 [Extended sentence for certain violent or sexual offences: persons 18 or over]:

[Amendment No. 195F not moved.]

Clause 218 agreed to.

Clause 219 [Extended sentence for certain violent or sexual offences: persons under 18]:

[Amendment No. 195G not moved.]

Clause 219 agreed to.

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Clause 220 [The assessment of dangerousness]:

[Amendments Nos. 195GA to 197B not moved.]

Clause 220 agreed to.

Schedule 13 [Scottish offences specified for the purposes of section 220(4)]:

Baroness Scotland of Asthal moved Amendment No. 198:


    Page 255, line 21, leave out from "Act" to end of line 22 and insert "(detention of woman in brothel or other premises)"

The noble Baroness said: In moving Amendment No. 198, I shall speak also to Amendments Nos. 199 and 200. All of these are minor drafting changes to the sexual and violent offences listed in Schedules 13 and 14 that may trigger the new sentences for dangerous offenders. These amendments are consequential to the changes in the Scottish and Northern Irish legislation. I beg to move.

On Question, amendment agreed to.

Schedule 13, as amended, agreed to.

Schedule 14 [Northern Ireland offences specified for the purposes of section 220(4)]:

Baroness Scotland of Asthal moved Amendments Nos. 199 and 200:


    Page 259, line 11, leave out paragraph 66.


    Page 260, line 19, at end insert—


"87A An offence under Article 20 of the Criminal Justice (Northern Ireland) Order 2003 (S.I. 2003/1247 (N.I. 13)) (assault with intent to commit buggery).
87B An offence under Article 21 of that Order (indecent assault on a male)."

On Question, amendments agreed to.

Schedule 14, as amended, agreed to.

Clause 221 agreed to.

Schedule 15 agreed to.

Clauses 222 to 228 agreed to.

Clause 229 [Power of court to recommend licence conditions for certain prisoners]:


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