I have said that we will publish the principles which underpin the Secretary of State’s decision. The other point that I make in this regard, which goes to the adequacy of reasons point—it was touched on by the noble and learned Lord, Lord Falconer, with his experience—is that judicial review of the Secretary of State’s decision would be available. My noble friend will be aware from the case law as to the relevance of reasons in a case where the decision can be challenged by way of judicial review.
In light of what I have said, I hope that the Committee will appreciate that this mechanism, which we expect to be used only in rare instances, will prevent the automatic release of offenders whose risk becomes apparent only after they have been sentenced.
Let me make one point. I apprehended at certain points in the discussion that there was perhaps a misapprehension, which I should clear up: that one could detain the prisoner beyond the end of the sentence as handed down by the court. We are not talking about that. To be clear, we are talking about the period between the automatic release point and the end of the sentence.
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The Secretary of State’s initial decision to refer such a prisoner would therefore be made because concerns were raised by prison and probation officials who have close contact with the prisoner. Those involved in the management of the particular offender and their case, which in most instances would include both prison and probation staff, would be involved in bringing the matter to the attention of the Secretary of State.
Prison and community offender managers are experienced in carrying out detailed assessments of the risk posed by offenders and of what can be put in place to manage that risk, both during the custodial period and following release. All that would be part of the assessment. We would also expect the close involvement of MAPPA, so that there is a cross-agency perspective of the risk the offender poses, and risk-management strategies that could be put in place for the time when the prisoner would otherwise be released.
On that basis, and with all respect to the High Court and its judges, I simply do not see how the considerable expertise and wisdom of the High Court could be best put to use here. This is a process for creating a mechanism to respond swiftly and efficiently to the emergence of possible future risk. The addition of the High Court would turn it into a litigation-heavy process, while adding an unnecessary burden on the High Court itself. I simply do not understand how the involvement of a High Court judge at the initial stage would materially increase the safeguards that would already be in place to ensure that this power operates correctly and fairly.
Over and above that, I respectfully endorse the point made by my noble friend Lord Hailsham about the word “would” in subsection (13) of the proposed new clause. The problem here is that the amendment would likely impede the decision-making power of the Parole Board. The board may still opt to release an offender referred under this power, but in practice the High Court’s opinion would be difficult to ignore. The hypothesis here is that the High Court has determined—“determine” is the word used in the first line of subsection (13)—that the offender
“would, if released, pose a significant risk”.
That would be the backdrop to the Parole Board’s assessment. As I said earlier, the High Court would effectively have rolled the pitch for the Parole Board. That is particularly the case if what is envisaged is not some judicial review-type test but what is called a full hearing. The problem there would be that the High Court has determined the point. We have to remember that the authority—or the operative decision, to use the helpful phrase of the noble and learned Lord, Lord Falconer—is the decision of the Parole Board, not of the Secretary of State.
For those reasons, although I understand the impetus behind the amendment, I suggest that, far from making the mechanism better, it would make it significantly worse. I therefore respectfully invite the noble Lord to withdraw the amendment.