Committee stage in the Lords
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Lord BachLabour- Quote
- moved Amendments Nos. 82A to 82ZA:
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- Lord BachLabour
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- moved Amendment No. 83A:
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- Lord BachLabour
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- Government Amendment No. 89A is in this group. The background is that my right honourable friend the Minister of State with responsibility for justice, Mr Hanson MP, gave a commitment in the other place to consider an amendment in similar terms to this one. Government Amendment No. 89A, which is along similar lines to Amendment No. 89 in the name of the noble Lord, Lord Kingsland, is the result. We do not believe that the current clause prevents courts looking at foreign convictions—where evidenced, of course—when assessing risk, and obviously they would be sensible to do so. However, we accept that clarity would be helpful. In our view, government Amendment No. 89A puts beyond doubt that courts may consider not only UK but also overseas convictions in assessing risk. I hope that the noble Lord will support Amendment No. 89A.
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- Lord BachLabour
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- moved Amendments Nos. 89A and 89B:
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- Lord BachLabour
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- This new clause proposes a significant extension of magistrates’ sentencing powers. The noble Lord, Lord Kingsland, is of course right that the increase in their powers was originally enacted in the Criminal Justice Act 2003 to enable magistrates’ courts to pass custody-plus sentences. This is one of the few provisions of the 2003 Act not yet implemented, and we have no current plans to do so. Implementing the increase in sentencing powers separately from custody plus would be a major change to our sentencing framework and we are not persuaded that there is a strong case for making such a radical change. If the increased custody limit were implemented together with custody plus, the maximum actual custodial period that could be imposed by the magistrates’ court would be 13 weeks for one offence, which is the equivalent of the three months’ actual custody time that can currently be imposed. It was never envisaged that the magistrates’ courts would make use of the increased custodial sentencing power without custody plus. The new clause would mean a substantial increase in the magistrates’ ability to impose actual prison time; indeed it would be doubled. As I said, it would be a major change to increase the sentencing powers of the magistrates’ courts in this way. They are, after all, lay courts and are not intended to deal with the most serious and dangerous offenders who may require long custodial sentences. That is not in any way to disparage the magistracy, who remain a vital part of our criminal justice system and whose committed hard work, as all noble Lords know, is voluntary and deals with huge numbers of criminal cases. The current system ensures that defendants receive appropriate sentences. Magistrates’ courts can of course direct cases to the Crown Court when they assess that the defendant would be likely if convicted to require a heavier sentence than they are empowered to give. They can also commit a defendant who has been convicted to the Crown Court for sentence. Clause 103 ensures that the latter power will be available undiminished under Schedule 3 to the 2003 Act when it is implemented. In those circumstances, I hope the noble Lord will withdraw his amendment.
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- Lord BachLabour
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- I hope to respond in as nuanced a way as the noble Lord, Lord Kingsland, moved his amendment. Our Clause 20 is intended to provide a solution to the problem that, under the current custody-plus legislation—which, I repeat, is not in force yet, before anyone else says it—a court cannot impose more than 13 weeks’ custody for consecutive offences without exceeding limitations on what must be the licence portion of custody plus. It would enable the courts to put into practice an option which theoretically is available to them when sentencing for more than one offence: the option to impose 26 rather than 13 weeks’ custody and 26 weeks on licence in order to preserve the rehabilitative benefits of custody plus. The amendment would remove Clause 20 altogether and replace it with a new formulation. It would remove entirely the current restriction on the amount of the aggregated sentence that can be dedicated to custody. I understand that the intended effect is that the courts would not be limited at all in putting together consecutive custodial sentences and would be able to add them together until the threshold of 65 weeks had been reached, meaning that an offender could be sentenced to 65 weeks’ prison time if enough offences were sentenced together. Our difficulty with the amendment is that the new clause would pretty directly undermine the custody-plus concept. It would mean that the court could disregard entirely the need for a licence period, or could significantly reduce it. The long-term, post-custody licence is the key feature of custody plus, allowing these offenders to be supported and supervised in the community on release. That does not, as I understand it, happen for short prison sentences in any event, and is one problem with which this Committee—and beyond the Committee, if I may say so—has attempted to battle. The proposed new clause would also introduce a substantial change to our sentencing framework by increasing the magistrates’ ability to impose actual prison time, which is currently six months for consecutive offences. Under custody plus, 26 weeks will be the maximum figure, which is the same. When magistrates’ courts assess that the defendant would be likely, if convicted, to require a heavier sentence than they are empowered to give, they can direct cases to the Crown Court. As I said in response to the previous amendment, they also have the power to commit a defendant for sentence to the Crown Court. The proposed new clause would also allow these sentences to be suspended. That is unnecessary. As the law stands, consecutive sentences may be suspended anyway, but in case anyone had forgotten, we have just debated the wider issue of the offences for which sentence may be suspended. I pause briefly to pay tribute to the work of the magistrates. All Members of the Committee, on whatever side they sit, know that magistrates play a vital role. They deal with 95 per cent of all criminal cases, either in the adult court or in the youth court. My noble friend Lord Hunt mentioned the 30,000 magistrates who serve voluntarily, giving their time freely in the name of public service and with commitment and dedication. I am sure that, in paying tribute to them, I do so on behalf of the whole Committee.
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- Lord BachLabour
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- Let me make the position clear. It is on the statute book. It needs to be brought up to date with the present legislation, but, as I think I said in response to the last amendment, we have no immediate intention of bringing it in. I certainly do not want to mislead the Committee on that.
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- Lord BachLabour
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- It is certainly a reason, because one day custody plus may be brought in. Another reason is that we do not believe that the magistrates’ powers should be given to pass a sentence of up to 65 weeks’ custody. I hope that that was clear from our objection to the noble Lord’s last amendment to raise the maximum sentence for a single offence from six months. Everyone knows that the maximum sentence that the magistrates can impose for however many offences they deal with is a total of 12 months; in other words, 52 weeks.
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- Lord BachLabour
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- On this rather less dramatic but more nuanced amendment, as the noble Lord described it, we have more than one reason for objecting to it.
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Lord HenleyConservative- Quote
- I did not hear it.
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- Lord BachLabour
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- I would hope that the noble Lord, Lord Henley, heard me, but if he did not, let me repeat myself. Our reasons were based on custody plus, which we think this would absolutely destroy if it were ever brought in. There more likely would be a complete custodial element and no licence element. The whole point is to have a licence period after custody. In addition, it would—as it were, by the back door—increase the amount of time that the magistrates are entitled to send someone to prison for.
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Lord Mayhew of TwysdenConservative- Quote
- This provision takes up more than 90 lines of legislation. When the Minister comes to reply, will he answer the question: is it really worth it? What does he hope to achieve by it in terms of satisfaction for the public or a reduction of prison occupancy? Is it really worth it? To adopt the language of the noble and learned Baroness, Lady Butler-Sloss, I will answer the question myself: it cannot be.
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- 21:25
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Lord Hunt of Kings HeathLabour- Quote
- I am sorry that the clause does not lend itself warmly to the noble and learned Lord, Lord Mayhew, and the noble Lord, Lord Kingsland. In answer to the question, “Is it worth it?”, clearly the Government believe that it is worth it even given its 91 lines in this modest Bill. Perhaps the noble Lord, Lord Kingsland, will care to put this to the vote as well. The Government feel they are on a roll at the moment. Clauses 21 to 23, as the noble Lord said, give effect to a measure that was recommended by my noble friend Lord Carter in his review of prisons to help manage demand for prison spaces. They introduce a new provision in the Criminal Justice Act 2003 to provide that time spent on bail, while subject to an electronically monitored curfew, may be credited towards a subsequent custodial sentence imposed for that offence. It will apply to defendants, bailed under the Bail Act as amended by the Bill, who are subject to an electronically monitored curfew bail condition and who have been sentenced for an offence that was committed on or after 4 April 2005. To qualify for the curfew credit, defendants must have been subject, as the noble Lord said, to an electronically monitored curfew for at least nine hours a day. The court will be required to take into account the defendant’s compliance with the curfew when deciding the period to be credited. As I said, this will have an impact regarding the demand on prison places. The justification for the change in the Bill is really to reflect the position that being subject to a curfew does not equal a deprivation of liberty whereas remand to custody clearly does. That is why each curfew day will provide a potential credit against sentence of no more than half a day. This credit is not being made on the basis that defendants are being deprived of their liberty, but it is a credit for the fact that they have complied with their bail conditions while having their liberty restricted on a preventive, rather than a punitive, basis. The credit is made on the basis that, even though being under a curfew is less arduous than being in custody, both are intended as a preventive measure to secure the judicial process rather than as a measure designed to punish the offender. The noble Lord suggested that the nine hours might provide a perverse incentive. I certainly hope not. The question, “Why nine hours, with no credit for shorter periods?” was implicit in what he said. It would be too complicated to relate credit to the number of hours that an offender was subject to curfew with electronic monitoring. There has to be a cut-off point and we think nine hours is appropriate, bearing in mind the degree to which the curfew impinges on the defendant’s daily life. The noble Lord asked why credit could not be given for other bail conditions, such as residence requirements. We consider that the level of restriction imposed by an electronically monitored curfew is greater than those other requirements. Where there are difficulties about evidencing compliance, such restrictions are often coupled with an electronically monitored curfew where credit would be given. Ultimately, we see this as a useful measure. It will help with some of the issues we have with the prison population. It can also be seen as a sensible preventative measure with regard to encouraging people who have been remanded on bail. On that basis, I commend it to your Lordships.
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Lord RamsbothamCrossbench- Quote
- I support the noble Lord, Lord Kingsland, and especially his last remarks on where this clause gets us. On a number of occasions in this House we have debated the problems posed in prisons by foreign national prisoners, particularly in regard to deportation, because deportation is part of their sentence. It is not something that has to be waited for or applied for; it is in the sentence. It has always seemed extraordinary to me that the deportation process does not take place during the period of the sentence so that, when the sentence comes to an end, the prisoner makes one move from the prison to the airport and out. At the moment, because the deportation is not being processed during the prisoner’s time in prison, he is moved at the end of his sentence to a deportation centre or to an immigration centre—not the same place at all; prison rules do not apply there. The people who run these immigration centres tell me that up to 50 per cent of the people they have there are ex-prisoners awaiting deportation. If you go into the reasons for the various disturbances in places such as Yarlswood and Harmondsworth, you find that many of them were provoked by these frustrated ex-prisoners not knowing quite what is happening. I had hoped, in the context of a Criminal Justice and Immigration Bill, that the Government would take the opportunity to clarify that and make it certain that procedures were in place; namely, that administrative procedures of deportation should be completed before the end of the sentence, so that there is no delay in the deportation process. As currently drafted, I cannot see that this clause will do anything to help either the prison or the immigration authorities to deal with their problem. It is certainly not going to help the addition to overcrowding caused by having foreign prisoners hanging about while waiting for something other than a sentence to be administered in this country.
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- Lord Hunt of Kings HeathLabour
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- This has been an extremely interesting debate, which I accept may be wider than the clause in the Bill. I will start with the figures I have, showing the foreign national prisoner population rising from just over 4,500 in 1997 to just about 11,300 in December 2007, which is about 14 per cent of the total prison population. Although the number of foreign national prisoners has clearly risen considerably, I understand that the proportion held here is lower than in other major European Union countries, but that does not take away the problems that we face at the moment. I will echo the figures that the noble Lord, Lord Kingsland, referred to concerning the numbers from particular countries. From Jamaica, it is 1,278; from Nigeria, 1,146; from Vietnam, 460; from Pakistan, 406; from Somalia, 394 and from China, 386. The noble Lord, Lord Kingsland, asked about prisoner transfer agreements. It is true that it remains a voluntary process, which accounts for the small number of foreign national prisoners who were repatriated last year under such agreements; that stood at 111. The UK currently has prisoner transfer agreements with 98 countries and territories. We have negotiations for further bilateral agreements with Vietnam, Ghana, Libya, Nigeria, Botswana and Kenya. I understand that we hope to begin negotiations with China later this year; agreements with Jamaica and Pakistan were signed in 2007, and are subject to ratification. We expect the agreement with Pakistan to enter into force early this year, while the Jamaican agreement cannot enter into force until amendments have been made to Jamaican law. On consent, in 2006 Parliament amended the Repatriation of Prisoners Act 1984 to remove the need for prisoners to consent to transfer. Prisoner consent is still required under all our existing agreements, but the Government intend to seek to put in place future agreements that do not require that. The success of it will depend largely on the willingness of other countries to enter into such agreements. One needs to acknowledge the fact that, notwithstanding all of the problems that have been faced, a great deal of progress has been made in the past year. For instance, sustained improvements to the deportation system over the past 18 months have seen the Border and Immigration Agency deliver a record performance. More foreign national prisoners are leaving the country than ever before. I have the figures for 2007, showing that we are removing or deporting foreign national prisoners at a record rate. Some 4,200 were removed then, an increase of almost 80 per cent on the previous year. I accept that time-served foreign national prisoners cause particular problems to prisons, because such prisoners are required to be treated as equivalent to remand prisoners and often cannot be moved quickly to the detention estate. That means that they suffer uncertainty about their removal dates, which can lead to distress or disorder. The noble Lord, Lord Ramsbotham, referred to the need for effective relationships between the Prison Service and the Border and Immigration Agency. My understanding is that those relationships have significantly improved in the past year or so, but I acknowledge that prisons and independent monitoring boards remain concerned about the current situation. I think that noble Lords would accept that improvements have been and are continuing to be made. We believe that the provisions in this clause will be a useful contribution to improving the situation. They will also reduce certain demand within our prison population. This has to be seen in the context of having to deal with what is and has been a difficult problem. We are getting a grip on it, but this debate will be an important contribution to making sure that we continue to deal with this matter with a sense of urgency.
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- 21:45
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- Lord Hunt of Kings HeathLabour
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- I hinted that I accepted that more needs to be done to ensure that both services integrate their efforts. There is a protocol of agreement between the Prison Service and the Border and Immigration Agency. Sometimes there can be distinct problems because there is, for example, a lack of space in the immigration detention estate. I understand that transfers of time-served foreign national prisoners to immigration removal centres take place daily. However, due to the nature of the offences and behaviour of some individuals, it is sometimes necessary for them to remain in prison accommodation for security and control reasons. So there can be practical issues as well. I am happy to send to noble Lords the protocol agreement that sets out the criteria for detaining individuals subject to immigration detention in prison accommodation. However, I accept the general point made by the noble Lord, Lord Kingsland, that we need to make sure that procedures are in place that allow us to anticipate as much as possible the actions that need to be taken and that the two services integrate their efforts as much as possible. As I said, progress is being made, but we have more to do.
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- Lord Hunt of Kings HeathLabour
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- The fact that I was nodding from a sedentary position should not be taken as assenting.
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- Lord Hunt of Kings HeathLabour
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- I want to assure the noble Lord that I will speed the protocol to him so that he can read it as quickly as possible. If I was nodding, it was to agree with him that we need to do everything we can to make the system as efficient as possible. I agree with that. I do think that we are making progress, but I do not think one can simply say that there are administrative issues. There are some real practical issues as well. I would commend those services in their approach. The clause helps in a modest way, but I am certainly happy, along with the protocol, to write to the noble Lord with further details about how we think we can deal with those specific problems if he would like that.
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- Lord BachLabour
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- I beg to move that the House do now resume. Moved accordingly, and, on Question, Motion agreed to. House resumed. House adjourned at 9.57 pm
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