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Report (3rd Day) (Continued)
8.55 pm
Clause 119 : Promoting awareness
89A: Clause 119, page 72, line 36, leave out “may” and insert “must inform, consult and engage with the public on penal issues and must”
Lord Thomas of Gresford: My Lords, this amendment stands in my name and in the name of my noble friend Lady Linklater. It concerns the role of the sentencing council in relation to promoting awareness of matters relating to the sentencing of offenders by courts in England and Wales, in particular the sentences imposed, the cost of different sentences and their relative effectiveness in preventing reoffending, and the operation and effect of guidelines.
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This clause is of the greatest possible importance to that very important function of the sentencing council: communicating to the outside world what exactly it is doing, how and why. It is important not only because it involves disseminating fractured information—that matter is dealt with in subsection (1) and the council will be expected to publish such information—but because it is concerned also with “awareness”, a word which implies a greater understanding of what the courts are doing. It is the very stuff of what we need to know and its proper communication—the very stuff which is missing at the moment. It is about how the public can come to understand what sentencing is about and what it achieves. Therefore, it is inevitably to do with engaging with the public if they are meaningfully to be made aware. It is all too easy to publish papers of facts and figures about its activities, but we all know what tends to happen to that sort of information: it remains on a shelf, unread by all but a few devotees, while the rest of us are none the wiser. The amendment would open the door to the possibility of closing the gap in public understanding and, even more importantly, addressing that lack of trust in the sentencing process. How can anyone have confidence in something that is not properly understood?
In Committee, the noble Lord, Lord Tunnicliffe, argued for the Government that, because awareness was a more abstract concept, it was,
- “less appropriate to tie an independent body to such a statutory duty”.—[Official Report, 15/7/09; col. 1248.]
That in a way is an extraordinary argument, for what is the point of publishing information or promoting awareness at all if it is not allied to understanding? The noble Lord was further worried that to explain to the public or make them aware of what the sentencing council does in relation to penal policy would mean straying into political territory. Again, I would suggest, that is an imaginary fear, given that it is generally agreed that to describe and explain the roles and duties of the council objectively, it is necessary for public understanding of and trust in our criminal justice system. Politics or preference, as the noble Lord suggested, does not come into it.
Awareness-raising is a function performed by other guidelines councils, notably in Victoria in Australia, and of course what our magistrates do regularly all over the country when they run their local crime community sentence programmes, involving magistrates in the Probation Service, which my noble friend Lady Linklater described in Committee. There is also an exercise run by the judiciary, called “You Be The Judge”, which is another way of communicating how the system works and sentences are arrived at. However, those exercises happen rarely because they are quite time-consuming and expensive. Therefore, sentencers are no strangers to creating awareness. However, it is important that it should be acknowledged as such and the sentencing council should have a duty to promote it. It is also worth considering how deterrence, one of the recognised objectives of sentencing, can possibly be meaningful or effective if no one knows what it is actually about. An offender cannot be deterred by something that he is not aware of.
At present, the British public not only lacks trust in our system but, unsurprisingly, is very ignorant of the realities. Some recently published figures from the
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Since it is widely accepted that there is little public confidence in sentencing, what body could be better placed to rectify the situation as the source of guidance than an independent body consisting of experts, whose experience as judges and other related fields are more likely to promote greater understanding and confidence than politicians would in a month of Sundays? To say, as the noble Lord, Lord Tunnicliffe, did in Committee, that it would be inappropriate and impossible to deliver is seriously to minimise the quality and distinction of the sentencing council membership and its abilities to describe its role in a professional, clear, unbiased and understandable way, thus generating greater awareness in the public at large. Your Lordships will recall that this afternoon my noble friend Lady Linklater suggested that the council should have on it someone with experience of the media to be able to advise the council how to promote greater understanding. It should be a duty, because it has such potential significance and should not be downplayed, in the context of the range of activities that the sentencing council will be expected to undertake. If we lose this opportunity now, the moment will pass and it will be a long time before we can look again at that confidence in and understanding of sentencing, which is born of awareness. That is the purpose behind this amendment. I beg to move.
Lord Hunt of Wirral: My Lords, the noble Lord’s amendment would place a duty on the sentencing council to
rather than, as the Bill currently stands, operate with discretion to promote awareness of sentencing. The noble Lord has justified the amendment with his customary skill and imagination, fortified by some very interesting statistics. In Committee, the noble Baroness, Lady Linklater of Butterstone, suggested holding “Any Questions”-style meetings across the country to help to promote understanding of the judicial system. All those ideas have an attraction, certainly, but we must not forget that the primary purpose of the sentencing council is to set guidelines for sentencing, and, as such, has as its members several members of the judiciary. We are concerned that, if there was a statutory duty on the council to engage with the public, that might risk involving its members with campaigning, which might well not sit with the independence of the judiciary.
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We note, too, that under Clause 119(1) the council must publish data but under subsection (2) it “may promote awareness”. That distinction is important. There is a duty to publish information about sentencing and once that information is in the public realm it is there for everyone to make use of as they think fit. However, while that duty is correct and easy to judge if it has been met, it is considerably more difficult to place a duty on the council to promote awareness. For example, by what standard will we decide if the council has met its obligations? We commend the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Linklater of Butterstone, for raising the issue of public awareness of sentencing matters, but in this instance we do not think that they should press the amendment to a vote.
Lord Bach: My Lords, we agree almost entirely with what the noble Lord, Lord Hunt, said on this issue. Amendment 89A changes the requirement on the council to promote awareness of sentencing issues. It does this first by adding a new duty on the council to,
and secondly by requiring that the council “must” promote sentencing rather than the current “may” do so.
On the first point, the amendment would require the council to engage with the public on penal issues. That would be a completely new role for the council. Without better particulars, we wonder what that new duty entails because “penal issues” is a wide term. The ordinary meaning of the words would suggest anything relating to the punishment of offenders. Could it mean that the council must consult for example on the nature of prison regimes, the security of prisons or on the provision of education and healthcare? Those are all penal policy issues and all worthy and important, but they do not in themselves relate to sentencing and they should not in our view be within the remit of a sentencing council. It would be inadvisable to place a mandatory duty on the council to consult on something which is so potentially wide ranging.
The second part of this amendment relates to the promotion of awareness of sentencing. It remains the Government’s view that an independent body such as the council should promote awareness, but we are also of the view that it would be ill-advised to place a statutory duty for such a task. At the risk of incurring the wrath of the noble Lord, as my noble friend Lord Tunnicliffe managed to do, “promotion of awareness” is a much more abstract concept than the publication of statistics and is not one that fits with such an absolute duty. We think it advisable, given the nature of the task, to give the council some discretion about how it promotes awareness.
However, I want to make it absolutely clear that by not supporting Amendment 89A in full we are not trying to discourage the council from promoting awareness of sentencing. I am happy to state on the record that the Government fully expect the council to undertake this task. We will encourage it to do so. We will expect it to report on how it has done so and we expect it to be scrutinised on how well it has performed. In the light of that, I hope that the noble Lord will consider withdrawing his amendment.
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Lord Thomas of Gresford: My Lords, I am most grateful for that reply. I take issue with the noble Lord, Lord Hunt, about the involvement of judges in campaigning. That is not the issue. The point is that judges need to have contact with public opinion. How do they do that? They would get a very distorted view if they did that through reading newspapers. Or do they do that through the sort of exercises that my noble friend Lady Linklater has been carrying out all over Britain on behalf of the Esmée Fairbairn trust? I know that your Lordships are aware of the trust’s work and the reports that it has produced, in which the judiciary are exposed to the way that prisons work, the way that the public are thinking and so forth.
We cannot lose sight of the fact that there is no God-given tariff for prison sentences. They must reflect the confidence of the community and what the community expects. The public need to be informed of what the council is saying, but the council also needs to engage with the public to find reactions. It is a question of two-way communication. That, I am sure, is what lies behind the amendment in my name and that of the noble Baroness. However, I can see that at this time there is no point in dividing the House. I beg leave to withdraw the amendment.
Clause 120 : Resources: effect of sentencing practice
Amendment 89B had been withdrawn from the Marshalled List.
89BA: Clause 120, page 73, line 6, leave out “demand for” and insert “resources required for the provision of”
Clause 122 : Duty to assess impact of policy and legislative proposals
Amendment 89C had been withdrawn from the Marshalled List.
89D: Clause 122, page 73, line 40, leave out “demand for” and insert “resources required for the provision of”
90: After Clause 127, insert the following new Clause—
“Imprisonment and detention for public protection
(1) Sentences of imprisonment or detention for public protection under section 225 or 226 of the Criminal Justice Act 2003 (c. 44) (indeterminate sentences) shall not be imposed after the date on which this Act is passed.
(2) Indeterminate sentences imposed on any person before that date shall be treated as having expired on whichever is the later of—
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(a) three months after that date; or
(b) the end of the maximum term of imprisonment or detention which could have been imposed on that person in the absence of a power to impose indeterminate sentences.
(3) Subsection (2) does not alter the notional minimal term (as defined in section 225 or 226 of the Criminal Justice Act 2003) of an indeterminate sentence.”
Lord Goodhart: My Lords, the purpose of this amendment is to abolish indeterminate sentences, known as IPPs or DPPs. IPPs are indeterminate sentences which are imposed on adult criminals; DPPs are sentences imposed on the under-18s. They are very similar in their operation, and I will use IPP as a description to cover both of them. I am delighted to have the support of the noble Lord, Lord Ramsbotham, who is, of course, an iconic figure in your Lordships’ House.
IPPs were created by the Criminal Justice Act 2003. They can be imposed for offences which carry a maximum sentence of at least 10 years but do not provide for life sentences. Ninety-five offences fall into this category. IPPs can be imposed if the criminal has a previous conviction for any one of 153 listed offences. Any such previous conviction creates a presumption that the criminal presents a serious risk of causing future harm to members of the public. Unless that presumption can be rebutted, the criminal who has been convicted of any one of the 95 trigger offences will get an IPP sentence. The sentence will contain a minimum term or tariff. That tariff is the minimum term which the judge hearing the case would have imposed in the absence of IPPs. There is no maximum sentence for an IPP. The statutory upper limit of the sentence for that crime is ignored. For all practical purposes, the IPP is a life sentence, and nothing else. Prisoners’ release requires them not only to have served the tariff in prison, but to have satisfied a panel of the Parole Board that they have reduced the risk that they present to the public.
I did not practise in the criminal field when I was at the Bar, but I became aware of the defects of IPPs when I read a report published a year ago by the Chief Inspector of Prisons and the Chief Inspector of Probation. The report is absolutely devastating. It concludes that the courts do not receive accurate pre-sentence reports on the risk of harm when considering whether to impose an IPP and many assessments of risk are, as a consequence, too high. The report concluded that the Parole Board system which determines IPP releases is severely underresourced and, as a result, IPP prisoners languish for months and sometimes years in local prisons because they cannot get the training that they need before they can apply for release. The introduction to the report says:
“Prisoners and staff became increasingly frustrated with their Kafka-esque predicament, unable to access the interventions they needed in order to secure release”.
That is the comment of two people who know more about IPPs than anybody else.
9.15 pm
There has been some improvement as a result of amendments made in 2008 to the Criminal Justice Act 2003. The amendments exclude from IPPs cases
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The IPP is wrong in principle and wrong in practice. English courts have a long-standing system of sentencing. Under that system, only the most serious offences can be punished by life imprisonment. It is unnecessary and wrong to impose a de facto life sentence on convictions for an offence which does not carry the life sentence. The IPP is even more wrong in practice. It is wrong because many pre-sentence assessments are inadequate and lead to the imposition of IPPs on those who should not be subject to it. It is wrong because many IPP prisoners, especially in local prisons, have no access to training, without which they cannot get a hearing before a Parole Board panel. IPPs are wrong because the Parole Board is overstretched and underfunded, leading to long delays in hearings.
Putting those defects right would cost a large amount of money, which will plainly not be available in a time of financial crisis, but not correcting the defects in the system is also expensive, because IPP prisoners remain in prison after they should have been released.
I should explain how my amendment works. Of course, it stops the future imposition of any further indeterminate sentences. For those who have already received indeterminate sentences, it will not be practicable to reconsider in every case what would have been the appropriate sentence for those who are currently on IPPs. The amendment would bring an IPP to an end if the prisoner has not been released at the end of the maximum term for which the sentence could have been imposed in the absence of indeterminate sentences. As the maximum term cannot be less than 10 years, there would be few, if any, immediate releases as a result of the amendment becoming law. However, the IPP prisoners would then have a definite date for the end of their sentence. That would be helpful, because indeterminate sentences damage the mental condition of prisoners. Many believe that they will never get out and lose the incentive to do so.
I am aware of the understandable public concern about the successful appeal of the prisoner in the Baby P case against an indeterminate sentence, but I do not believe that that presents any relevance to the amendment.
IPP is a failure. Worse, it is an expensive failure. It keeps people in prison who should have been released. It involves spending money on court hearings and
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Lord Ramsbotham: My Lords, I put my name to the amendment because ever since indeterminate sentences were proposed in the 2003 Act, I have been very concerned about their practical impact. At the time, many people forecast that they would be a severe impediment on the ability of the Prison Service to deal effectively with prisoners—not just the IPP prisoners, but other prisoners who would be likely to have the limited resources to tackle their own reoffending problems denied to them.
What was unfortunate about the introduction of the IPP was that it went ahead without proper impact assessments by the Home Office, which failed totally to look at the impact not just on the Prison Service but on the probation service. Both must be considered in the future. Only yesterday, I was visited by 11 people from the probation service, including nine who were about to qualify from the latest officers’ course. They told me that, given the number of cases that they had to deal with and the cuts being imposed on them, the demands on them were such that when starting a case they simply did not have the time to complete the pre-sentence reports which the noble Lord, Lord Goodhart, mentioned as being one of problems. With the best will in the world, they cannot offer sufficient time to complete the reports, given the number of cases that they have to look at.
I have often said two things in this House about the context in which these sentences are being considered. First, it is extraordinary that no one knows the cost of imprisonment. That is not to say it is not known how much money has been given to the Prison Service by the Treasury and how much is distributed to each prison. However, it is not known how much it would cost to do all the things with and for prisoners that the Government say need to be done, including all the activities so ably described by the noble Lord in connection with indeterminate sentences. Are there assessments? How much do they cost? How much do the programmes that have to be carried out cost? Furthermore, how much does it cost to keep someone in prison for the additional period beyond the tariff that might otherwise have been imposed? Bearing in mind the figures that the noble Lord, Lord Goodhart, produced—that only 76 such prisoners have so far been released—and given the numbers who have gone into prison, this is a recurring expense to the Prison Service which adds financial and overcrowding problems to those that already exist. In my book they are avoidable.
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