My Lords, this amendment stands in my name and the names of other noble Lords. In one way, this amendment is modest, although I regret that it is not modest in length. Indeed, I think it is the longest amendment on the current Marshalled List, winning that dubious honour, by only a short head, over Amendment 259C tabled by the noble Lord, Lord Marks of Henley-on-Thames.
Our amendment leaves intact the legislative intention of Clause 109 to provide a safeguard against the early release of a prisoner serving a determinate sentence who presents a significant risk to members of the public. The amendment’s less modest intention is, quite simply, to preserve the separation of powers—not to give a Secretary of State the power to in effect change and lengthen sentences. It transfers the initiation of the safeguard that is sought from the Executive to
the judiciary. It will enable a full hearing of the facts before a prisoner has their case referred to the Parole Board. A Secretary of State who is using this power appropriately has absolutely nothing to fear from this safeguard. It preserves the necessary separation between an elected politician and an individual prisoner who has been sentenced.
I am grateful to the noble and learned Lord, Lord Garnier, the noble Baroness, Lady Prashar, and the noble Lord, Lord German, for co-signing the amendment. The noble and learned Lord, Lord Garnier, was kind enough to get in touch with me this morning to say that he had a professional engagement elsewhere. I checked that he had not picked up a returned brief in the Virgin Islands from a Member of another place, and I am sure that that is not what happened. I am also particularly pleased that the amendment is tabled with the support of the Sentencing Academy, the Prison Reform Trust and Justice—all highly respected and thoughtful organisations.
At the heart of Clause 109 lies an assessment of dangerousness. The clause is aimed at a small number of prisoners who have been underclassified at the point of sentencing. The scenario cited in the White Paper concerns people who are assessed as presenting a terrorist threat, but who are in prison serving a sentence for a non-terrorism-related offence, and offenders who are deemed to present a significant danger to the public for other reasons but whose offending behaviour and assessment of dangerousness at the point of sentencing did not meet the threshold for a finding of dangerousness. One can think of many examples, but familiar to me because of my interest in terrorism offences is people who have been sentenced for quite mundane crimes but who are radicalised in prison and present a high degree of dangerousness at a time when they otherwise might be released.
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These are legitimate concerns. I recognise—and I think we should all recognise—that Clause 109 can offer only an imperfect solution, but one predicated on the Government’s duty to protect the public from dangerous people. The practical danger posed by finding a prisoner dangerous post sentencing is that, when a prisoner genuinely does present a significant danger to the public, the Parole Board will be unable to order their release before the end of their full custodial sentence. The result is that, upon release, these potentially dangerous offenders will be subject to no licence conditions, as many prisoners are. They can be released to NFA—no fixed address—and be lost to the system very quickly. Particularly when the perceived risk is around non-terrorism offending, there will be few available options to manage them in the community. If the authorities move quickly, there are measures for potential terrorist offenders, such as TPIMs, which can be used, although they are very small in number as used at the moment.
However, if there are cases in which the public is better protected by the delayed release of a prisoner, my argument, and the argument of those of us who have signed this amendment, is that this should be a judicial decision and not one at the discretion of the Secretary of State. The practical effect of the Secretary
of State exercising this power will be a member of the Executive intervening in the sentence of an individual prisoner to ensure that they will spend their full sentence in custody—perhaps many additional years in prison—unless the Parole Board, which is very well trained in these cases, with a training that is second to none, decides that it is no longer necessary for the protection of the public that the person should remain in prison. What we have in the clause as drafted is a de facto finding of dangerousness by the Secretary of State, which places on the prisoner the reverse burden to demonstrate that their continuing detention is no longer necessary for the protection of the public. On making a decision to refer a case to the Parole Board, the default position then is that the prisoner will serve their full sentence in prison—so the operative decision here is the referral to the Parole Board.
Assessments of dangerousness do not lie comfortably with Secretaries of State. In the debates we have had on this Bill—I have done it, and others have done it—we have all cited cases that have been brought to us by members of the public. The Sarah Everard case is an example, which I used earlier. It is a very emotive case. One feels very angry as a citizen about what the man who killed her did. That is so in many other cases. The one that the noble and learned Lord, Lord Falconer of Thoroton, cited an hour or so ago fell into the same category. The danger is with such cases that politicians can not only express the anger and ask the Government to do something about it, but that a Secretary of State feels politically driven to do that thing about it. My argument is that these assessments of dangerousness lie properly with the courts. As the noble and learned Lord, Lord Thomas of Cwmgiedd, said in the Second Reading debate:
“I am sure that no one wants to see us go down the road of terms of imprisonment being extended other than by an independent judicial body … the … hallmarks of our system require independence from political interference and decisions on custody being totally in the hands of independent bodies”.—[Official Report, 14/9/2021; col. 1303.]
As drafted, this clause places an enormous degree of discretion in the hands of the Secretary of State.
While the White Paper refers to prisoners who become of significant public concern, there is no such requirement for new information in Clause 109. There is nothing to prevent the Secretary of State simply disagreeing with the decision of the sentencing judge, who has had all the material evidence and reports before him or her. This gives rise to the risk of political pressure, which the noble and learned Lord, Lord Thomas of Cwmgiedd, also alluded to at Second Reading. Furthermore, the Secretary of State requires only a reasonable belief that there would be a significant risk to the public, a lower bar than the courts are required to use when assessing dangerousness under Section 308 of the Sentencing Code, which necessitates a finding that there is such a risk. In my view that is a proper, fair test.
The current clause offers few procedural safeguards to prisoners who may have to spend several extra years in prison at the instigation of a Secretary of State. There will be no full hearing of the facts before the reference is made. The prisoner is able to make representations to the Secretary of State before the
Secretary of State makes a referral to the Parole Board, but that is a very limited opportunity. It is unclear what practical benefit this might provide for the prisoner, especially where the Secretary of State has also made or expressed a view. Even this right is constrained by the Secretary of State not expressly being required to delay a referral to the Parole Board in order to give the prisoner an opportunity to make representations; and prison is a difficult place from which to make representations, whether legal aid is available or not.
It is unclear how and when cases will be brought to the Secretary of State’s attention, by what mechanism and with what level of evidence. Will it be evidence that is transparent and accountable, to give rise to the possibility of judicial review? We have been told nothing about that. Although apparently aimed at a small number of prisoners, the decision to apply this provision to there being a risk of the commission of any specified offence, rather than restricting it to terrorism offences or a shorter list of the most serious offences, means that this provision could be applied to almost any serving prisoner.
I respectfully suggest that there should be little controversy attached to the key purpose of this amendment, which is to transfer to the High Court the final decision as to whether to refer a case to the Parole Board. The Secretary of State will enjoy the additional power to ask the High Court to determine whether automatic release should be halted for any prisoner serving a determinate sentence. The High Court will then carry out an empirical examination on the basis of evidence—lay and expert—just as any sentencing court does, determining whether an offender presents a significant risk of harm to members of the public.
These are difficult decisions and this is a difficult issue, but the public is better protected by these decisions being made in a conventionally open, transparent and independent way: namely, in a courtroom rather than an office in Whitehall. I beg to move.