Select Committee on Home Affairs Third Report


APPENDIX 18

Memorandum by the Association of Chief Police Officers

LETTER TO THE CLERK OF THE COMMITTEE

  Following your letter dated 12 August 1997, I write having consulted with Police Forces in England and Wales and provide views, which I hope to progress in the New Year when called to give evidence before Committee:

  There is a minority opinion that the Police should be cautious in being publicly involved in the sentencing debate. That said, a longer term concern is that inappropriateness in sentencing too frequently is associated with unchecked re-offending and diminished police morale.

  Most Police Forces are engaged in initiatives, working closely with other agencies, examining offender supervision programmes (examples of such schemes are attached). In championing other methods of punishment it has always to be borne in mind that confidence in the Criminal Justice System is threatened if offenders appear to be "getting away with it", particularly if alternative sentences do not seem to be sufficiently severe or demanding. There is a widespread perception amongst the police and the general public that the present system is weighted too much in favour of the offender and against the victim; against this background alternatives must be seen to be effective sanctions and not merely cost cutting measures. This apprehension will be enhanced if active offenders are seen to re-offend with much frequency.

  There is an over-riding need to break the cycle of offending but it is crucial that any action must be timely, have impact for the victim and an impact on the offender. The Courts should have the ability to recall the offender to assess the effectiveness of any court sanction which obliges the defendant to take part in some kind of restorative programme, and if the sanction is not seen to have been effective it should be backed by a more stringent measure.

  In any sanctions designed to meet diversion strategies the key elements are suggested as:

    —  A change of emphasis in recognising the place of victims in the Criminal Justice System. The crime is against the victim as well as society and the State.

    —  Any breach of a diversionary policy could result in formal proceedings or recall to court.

    —  Fines and compensation orders should be payable in part or in kind as part of a diversionary sentence.

    —  Compensation should be paid to the victim before any fines are paid into public funds.

    —  Mediation between offenders and victims should be seen as being for the benefit of the victim.

    —  The victim should be allowed a right of audience with the court in circumstances where significant financial or personal loss has been sustained.

    —  Credit for guilty pleas and successful diversionary initiatives could be flexible and linked to diversionary initiatives that the defendant must agree to abide with. Proceedings could bere-introduced for failure and the discount expunged.

    —  Pre-sentence reports should contain details of available diversionary initiatives. The law only demands that a report be available if the court is considering a custodial sentence.

    —  Information about the effect of the crime upon the victim should be available to the court and be available for hearing in open court (except sensitive cases) before the sentence. This could include non-binding views of the victim. The present law prevents the admission of evidence which may be seen to bolster the prosecution case. It could be acknowledged that it may go either way and should be supported by admissible evidence.

    —  Sentences could be deferred pending the result of a diversionary initiative. If the accused fails or refuses to comply with the initiative then a sentence could be imposed.

    —  Access to restitution and compensation is difficult for many victims faced with young or financially insecure offenders. This could be remedied by enhancing the Court's ability to order against parents or guardians.

    —  The use of reparation should form an integral part of a non-custodial sentence such as the repair of damage caused or compensating for loss. In relation to young offenders such a form of sentencing should be focused early on in the offending career with the deterrent of imprisonment being a real possibility.

  As greater rigour is imposed on the cautioning system, there is a likelihood that there may be more court appearances of young offenders. If a sequence of non-custodial options is tried and the offender continues to re-offend, there will be pressure towards more imprisonment rather than less. It may well be worth considering shorter sentences earlier in offending careers. There is some evidence that too many non-custodial sentences remove the fear of sanction and that early short sentencing might be more effective. The term "short sentence" could be taken quite literally to be a matter of weeks.

  In the right cases, a major strength of non-custodial sentences is that it offers the facility for some form of diversion whereby proper support can help address repeat offending. This is heavily dependent upon the ability of the handling agency to select an appropriate programme. Whilst acknowledging the importance of support for the offender to complement any non-custodial sentence it is important that the public are assured that a punitive element exists.

  Forces have considered alternative options and a few of their thoughts are outlined below:

    —  Suspended Prison Sentences should have the ability to have meaningful conditions or curfew orders attached to them including exclusion orders affecting licensed premises/football grounds etc.

    —  Lifestyle Action Plans would produce a requirement for an offender to develop, with the assistance of a Probation Officer, an action plan based upon existing skills, abilities and realistic expectations to lead a productive and law abiding existence. Failure to meet the objectives could result in imprisonment.

    —  Forfeiture of Possessions could be considered where, upon conviction for an offence of dishonesty, assets in possession of the offender would be presumed (under certain clearly defind circumstances) to have been acquired dishonestly and be subject to forfeiture unless lawful ownership could be proved. This would probably meet the public desire for retribution in non-custodial cases.

    —  Part-time Prison Sentences where offenders would lose their liberty for one or two days per week rather than for a continuous length of time. It might be that by maintaining normal contact in society throughout the week, the inconvenience of short term detention, for example at the weekend, would perhaps encourage a change in behaviour.

    —  Secure Hostel Schemes would provide the occupants serving periods of imprisonment to have freedom during the day but still remain in custody at night and weekends. This would allow an opportunity for offenders to re-integrate themselves into the community by obtaining or seeking employment and at the same time, reducing the overall cost to the system.

    —  Attendance Centres for both adults and juveniles have proved to be successful at a relatively moderate cost but suitable accessibility does prove to be a problem in some Forces. The regime of the Attendance Centre should be reviewed to ensure that a more structured approach is taken with a substantial contribution from the offender of their own time. Full days of attending should be considered rather than a few hours in one session.

  As previously mentioned, nearly all Police Forces in England and Wales are actively involved with other agencies in programmes which aim to divert offenders from a life of offending. It is worth making the point however that for a few persistent young offenders, for whom all alternatives have been tried there is no alternative but to lock them up, simply for the protection of the public and their property. Most Forces have examples of children aged between 12 and 17 who have been given the whole range of community penalties only to re-offend time and time again, creating literally hundreds of victims of crimes such as burglary and theft. It is accepted that there is limited therapeutic value in incarcerating young offenders, but ultimately having given them every chance, we have a duty to protect our communities by removing persistent offenders.

  It is worth observing that the number of highly recidivist offenders is very small as a percentage of the total number of offenders. If their misbehaviour is not checked a consequence is that the public at large view alternatives to imprisonment negatively. They witness the havoc caused by these recidivist youngsters rather than the success of programmes ranged against more amenable offenders.

  There is a special concern in the Police Service regarding the link between recidivist offending and the use of illegal addictive substances. People of strong will find if difficult to shake the habit of smoking tobacco, unsurprisingly less well motivated people who use heroin have a greater problem. Any scheme for addressing offending behaviour outside prison must also address a drug habit if there is one. At the least there should be clinical availability of drug substitutes such as methadone; controlled dispensing arrangements so they cannot trade prescriptions; and supportive advice. Many offenders are committing crime primarily to support their habit. The single most important thing we can do would be to address the difficulty of stabilising, with drug substitutes, these offenders within the community.

  A further thought is that of the age of criminal responsibility. It cannot be seriously argued that most children aged perhaps eight or nine do not have any concept of right from wrong. Indeed, when conducting child protection joint interviews it is accepted by courts that four or five year-old children will be tested on their ability to differentiate between truth and lies, the implication being that in most cases they know that it is wrong to lie. It may be time to take a close look at the age threshold over which we can start to give a youngster some help in growing up as an honest citizen. By the time some children have reached their tenth birthday they are experienced criminals and will be beyond the point where our diversionary systems will have any effect. It is not suggested for one moment that eight year-olds should be put in prison, but an acceptance that they can be criminally responsible will allow the services currently only available to the over 10 year-olds, to be instigated when they are needed most.

  Perhaps the idea of alternatives to prison sentences puts the wrong spin on the issue. A more potent view of sentencing would be to look for combined treatment programmes that emphasise both the restorative principle and the rehabilitative principle. There is abundant evidence concerning a small number of highly recidivist offenders who commit large amounts of crime. They have almost all run the gamut of alternative sentencing before prison. Many of them return to offending close upon release. Interestingly we have looked at a number of these cases where the offender has committed crime up to and immediately before court appearance and immediately upon release. In these circumstances "paying your debt to society" does not mean a lot. The choice is surely between preventive detention and some alternative programme combining short term imprisonment and long term effective parole. Such a parole system would need to have real teeth as well as to offer genuine support and training for parolees.

  Recognising what has been said about public confidence, a parole system would need to look carefully at where results might be achieved. Offences of predatory violence (robbery, stranger rape and the like), indecency offences and house burglary, all illustrate a likely disregard for victims. Some other kinds of crime, drug dealing, car theft and even shoplifting are sometimes "rationalised" on the basis that the victim is not injured, may well be recompensed or that what they are doing is merely a form of illegal trading. Given these different motivations parole systems and supervision systems would need to be differently engineered if they were to address re-offending realistically. The point being made is that we should not support schemes because they are attractive but on the basis of whether or not they work. We need to learn whether schemes have a differential impact according to the type of offender and type of programme. It is almost more important to set up a process of genuine validation than it is to identify new schemes. The Crime Committee's view is that the arguments for and against custody as an issue of moral persuasion are largely counter productive. Every system of criminal justice needs both, the trick is to obtain the right balance and, as we are suggesting, to look at combined approaches. The petty politics of those who are always against imprisonment and who usually misrepresent cases in a rhetorical fashion, do more to undermine genuine alternatives than anything else. We are particularly concerned about, for example, the present enthusiasm for restorative justice in so far as it is presented as a panacea. There are no panaceas. Restorative justice is one of many options which may work in some circumstances and we need more evidence about where it will be effective.

  I regret this has been a lengthy response but I have sought to capture the views of colleagues as I believe the Police Service has a particular interest in this issue. Four main issues stand to be reiterated for emphasis:

    (a) Custodial and non-custodial sentences should not be viewed as philosophical alternatives but as complementary.

    (b) There is room for a much greater use of mixed sentences if parole systems are seen to have more teeth.

    (c) Highly recidivist offenders need to be treated as a special category.

    (d) Addressing drug addiction in some cases is central to any plans for dealing with offenders outside prison.

  I hope these comments are of value.

J D Phillips QPM BA(Econ)

Chairman

ACPO Crime Committee

17 November 1997


 
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