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Lord Filkin moved Amendment No. 203AA:



"RESTRICTIONS ON OPERATION OF SECTION 235(1) IN RELATION TO INTERMITTENT CUSTODY PRISONERS
(1) Where an intermittent custody prisoner returns to custody after being unlawfully at large within the meaning of section 49 of the Prison Act 1952 (c. 52) at any time during the currency of his sentence, section 235(1) does not apply until—
(a) the relevant time (as defined in subsection (2)), or
(b) if earlier, the date on which he has served in prison the number of custodial days required by the intermittent custody order.
(2) In subsection (1)(a) "the relevant time" means—
(a) in a case where, within the period of 72 hours beginning with the return to custody of the intermittent custody prisoner, the Secretary of State or the responsible officer has applied to the court for the amendment of the intermittent custody order under paragraph 6(1)(b) of Schedule 9, the date on which the application is withdrawn or determined, and
(b) in any other case, the end of that 72 hour period.
(3) Section 235(1) does not apply in relation to an intermittent custody prisoner at any time after he has been recalled under section 243, unless after his recall the Board has directed his further release on licence."

On Question, amendment agreed to.

Clause 236 [Power to release prisoners on licence before required to do so]:

Viscount Bridgeman moved Amendment No. 203B:


    Page 137, line 3, at end insert—


"( ) In exercising his powers under this section the Secretary of State shall have regard to the matters specified in section 135(1)."

The noble Viscount said: In speaking to Amendment No. 203B, standing in the names of my noble friends Lady Anelay and Lord Kingsland, I shall speak also to Amendments Nos. 204B and 204C, which are probing amendments. Clause 236 re-enacts, with some amendments, the provisions enacted in the Crime and Disorder Act 1998 that allow the Home Secretary to order the early release of prisoners on home detention curfew before their usual automatic release date. It allows prisoners to be released from custody up to 135 days—more than four months—before the half-way point of their sentences. Thus, if the Bill becomes law, someone sentenced to, for example, two years' imprisonment, might be released on the scheme by the Secretary of State after serving less than eight months in custody. The amendments in this group relate to the operation of that provision within the sentencing framework provided for in the Bill.

Amendment No. 203B requires the Secretary of State, when exercising his early release powers under Clause 236, to have regard to the purposes of sentencing

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set out in Clause 135(1), which were considered by the Committee in an earlier debate. The amendment gives the Government the opportunity to state the criteria by which the Secretary of State intends to operate the home detention curfew scheme in the future, particularly in relation to long-term prisoners. Will the Secretary of State bear in mind what is set out in Clause 135 when he makes the decision to release a particular prisoner? In particular, what would happen in a case where the trial judge had passed a deterrent sentence or a long determinant sentence with the aim of protecting the public—for example, on a drug dealer or a serial burglar?

Would the Secretary of State take the sentencing decision and the aims of the sentence, as set out by the sentencer, into account when deciding whether to release the prisoner early on home detention curfew or would the release be dictated by other factors? I hope that the Minister will comment on the way in which the Government envisage the aims of the sentencing provisions contained in Part 12 interacting with the early release provisions.

Amendment No. 204B probes the way in which the new sentence of intermittent custody will interact with home detention curfew. Under Clause 176, intermittent custody may be imposed for periods up to 51 weeks. The maximum number of "custodial days"—that is, the actual time spent in prison—is 90 days. During that 90-day period, the prisoner may be released temporarily on licence under Clause 176. It is plain from Clause 236(1)(b), to which Amendment No. 204B relates, that prisoners sentenced to intermittent custody may also be released on the home detention curfew scheme.

How do the Government intend that the two systems should operate together? What will be the difference in restrictions between release on licence under the intermittent custody sentence and release on the HDC scheme? Will offenders end up spending more time under restriction when they are theoretically "released" on the HDC scheme? Someone serving a sentence of intermittent custody might spend only one or two days per week in prison, while, on home detention curfew, the offender would spend the equivalent of at least three-and-a-half days under curfew each week. I would welcome the Government's view on how the two systems will work in practice.

Finally, Amendment No. 204C would require the Home Secretary to inform the victim of the offence when the offender is released on home detention curfew. When we debated a previous group of amendments, moved by my noble friend Lady Anelay, she reminded the Committee that the home detention curfew scheme is not mentioned by sentencers when sentence is passed. If the victim is in court, he or she will be left with a false impression of when the offender will be released. Even if HDC is mentioned in the future, the victim will never know precisely when the Secretary of State is going to exercise his power to release any given prisoner.

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The amendment would therefore at least allow the victim to know how long the offender has actually served in prison, rather than entertain false notions based on a "headline" sentence which will never actually be served. I recognise that in some situations—for example, where revenge attacks are possible—it would be inappropriate to inform the victim that an offender had been released on home detention curfew. But surely, in general, victims ought to know that a decision to release an offender early on HDC has been made; a possibility about which they may, through no fault of their own, be entirely unaware. I look forward to the Minister's comments on these amendments. I beg to move.

Lord Carlisle of Bucklow: A few weeks ago the Government had acquired a reputation for excessive spin. In terms of this Bill, it appears to have moved very quickly from excessive spin to excessive stealth. Clause 176 introduces the concept of weekend imprisonment, which I welcome, but without any real announcements at all. In Clauses 235 and 236, effectively, we are doing away with the parole system as we have known it for many years. Instead of everyone serving a sentence of four years or more being eligible for consideration for parole at the half-way stage, under Clause 235 that half-term remission shall be automatic without the Parole Board having any say.

Amendment No. 203B, moved by my noble friend, applies to Clause 236, under which the Secretary of State is given the power to release at any moment any prisoner serving a fixed term of imprisonment—provided that it is a term of more than eight months—up to 135 days before the half way stage. What is the cause of this sudden change of attitude? The parole system, which stood the test of time for many years, was accepted as a sensible way of releasing an offender back into society. One can only assume that the immediate release of prisoners at the half-way stage of a short sentence, rather than the present four-year sentence, is to help provide space in prisons for additional prisoners which will arise as a result of the clauses that we have had on serious offences, which we have considered, and those on murder, which we will consider shortly.

However, what concerns me far more is the power now being taken by the Home Secretary to add another 135 days' release, apparently at will, for any prisoner whose sentence is long enough. Looking at the example cited by my noble friend Lord Bridgeman, if a man is serving five years in prison, in future he will come out automatically after two-and-a-half years and, if the Home Secretary so wishes, he can be released 135 days before that halfway point.

Before he replies, can I humbly remind the Minister that the basic reason why the parole system came into disrepute for a time both in the public eye and in the eye of the judiciary—and was the cause of the subsequent review—was the fact that people given identical sentences by the courts were being released at different times? Conversely, two people serving

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different sentences could come out on the same day. In any event, the period of the release bore little relationship to the sentence passed.

Here we shall have a situation where sentence is passed and then the Secretary of State, apparently of his own volition and without being required to give any reason, will be able to say that prisoners A, B and C will serve 18 months of their three-year sentences, while prisoner D is to be let out 135 days earlier. One can only assume again that the power is there is to be used if required for the purpose of helping to reduce overcrowding in prisons and to make room for the additional prisoners that the rest of this Bill will produce.

Like my noble friend Lord Bridgeman, I should like to hear from the Minister what is the philosophy behind the intention to provide a power for the Secretary of State to release prisoners sentenced by the court 135 days before the time that they would normally be released. The date of release is therefore no longer to be dependent on prisoners serving half of their sentences, but to be dependent on serving half the sentence less anything up to 135 days on the whim of the Home Secretary of the day.

6.45 p.m.

Lord Filkin: As I am sure Members of the Committee know, the home detention curfew scheme—HDC—has been in operation since 1999. It is a process and a system which has been reasonably well tested in practice over that period.

Amendment No. 203B seeks to require the Secretary of State to take into account the purposes of sentencing, as set out in Clause 135, when considering prisoners for early release under the HDC scheme, while Amendment No. 204B would make those serving intermittent custody sentences ineligible for release under that scheme. Amendment No. 204C seeks to make it a statutory requirement that the Secretary of State must inform victims of crime of his decision to release prisoners on HDC unless there are exceptional reasons for not doing so.

HDC is a well-developed scheme which primarily concerns the promotion of resettlement, a key element in the purposes of sentencing. The scheme is based on individual risk assessments of prisoners carried out by prison governors. We think that the amendments should be resisted because they would seriously reduce the scope for governors to make reasoned judgments and release suitable prisoners.

Because the schemes have been in operation for some time, it has been possible to evaluate the judgment of prison governors. The evidence shows that they do appear to be well informed and skilled at making those judgments, when considered as regards the extent to which the HDC scheme is abused, or where there is failure as a consequence.

All prisoners released on HDC are in any event due to be released into the community within a short time. HDC provides a managed return to society for prisoners in the vital first few months of their release, while providing protection to the public. This applies

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equally to prisoners serving longer sentences as to those low-risk prisoners whom the courts have determined are suitable for intermittent custody.

We think there is an equally good reason why it should be tried and used for prisoners who have been serving long sentences. Those sentences will come to an end and it is in the interests of civil society generally to try to maximise the resettlement of such prisoners back into the community in ways that reduce the likelihood of reoffending. That is how HDC bites: it provides a technological means of enforcing movement restrictions according to the risk assessment before there is full release.

We further think that Amendment No. 204B should be rejected because preventing release under the scheme would have an unfair impact on intermittent custody prisoners. Potentially they could serve longer sentences than custody plus prisoners with the same custodial period.

There is already statutory provision for the victims of serious crimes to be informed of release arrangements. These apply to those released on HDC as they do to any other method of release. In addition, probation areas have the discretion to provide information to the victims of other crimes as well.

At the risk of repeating myself, I want to emphasise that HDC is primarily a tool to facilitate resettlement and it is with this in mind that the Secretary of State will make a decision as to eligibility, ruling out those offenders who are judged to be high risk.

I shall speak in a little more detail about the issue of informing victims of a decision to release prisoners on HDC. A statutory duty already exists in Section 69 of the Criminal Justice and Court Services Act 2000 for the National Probation Service to contact all victims of sexual and violent crimes where the offender was sentenced to imprisonment for 12 months or more. Victims are asked whether they wish to make representations about whether the offender should be subject to certain conditions or requirements upon final release, and whether the victim wishes to receive information about release arrangements.

Where resources allow, probation areas have the discretion to offer the contact scheme to victims not included in the standard list of offences where it is appropriate. An additional statutory duty contained in the HDC provisions would duplicate the existing provisions, but would also widen the requirement to contact victims of any crime, irrespective of its seriousness.

I turn now to the relationship between HDC and intermittent custody. HDC operates by kicking in on the days that the offender would otherwise be held in custody. He will therefore be on curfew on those days, while on the other days of the week he will be on his intermittent custody licence, with its conditions. So, in that sense, the person serving the sentence will benefit from being on HDC; otherwise he would have been caught.

The noble Lord, Lord Carlisle of Bucklow, has asked about these changes to the parole system. The short answer to that is that the Halliday report, which

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looked into these issues, set out a system of automatic release at the halfway point as part of a process of trying to increase the likelihood that there would be stronger supervision arrangements in place over the second half of the sentence. The most specific example of an immediate benefit is that anyone released at the halfway point will be under the terms of the licence restrictions right throughout the second half of his term. Under current arrangements, after the three-quarter point has been passed, there is no effective control. In particular, for those serving long sentences, one can see that this system strengthens the ability of the Home Secretary to control a person under a form of governance.

The noble Lord also asked about the 135 days' release. The maximum HDC curfew point is currently 135 days. That came into force on 14th July through an affirmative order, which was discussed in this House and in another place. That does not necessarily mean that it will satisfy the noble Lord, Lord Carlisle, but at least it was considered in this Chamber at that point.

I hope that those comments on these amendments are helpful to noble Lords. They will put into the record the arguments for, at least, further reflection.


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