Examination of Witnesses (Questions 40-59)|
TUESDAY 11 FEBRUARY 2003
40. Going back to fines, the reason why the
use of the fine has declined is, as you have said, because they
were uncollectible in many cases, and nothing is more designed
to bring the system into disrepute than fining people who never
have to pay. So it is a good thing the fine is in decline, is
it not? Are you say that lots of people with resources that could
pay fines are not being asked to?
(Professor Morgan) There is a nettle I think Parliament
has to grasp in relation to fines, and I would like to think that
one or other of the Bills currently before the House might eventually
include some measures which would grasp that nettle. I personally
think that it was a disastrous error to abandon the unit fine
principle which was introduced in the Criminal Justice Act 1991
and then shortly thereafter abandoned because, frankly, it was
not well designed at the time. The unit fine principle is that
the court determines the seriousness of the offence on a scale,
and that scale is then, through an algorithm, quite precisely
related to the size of the defendant's net disposable income.
That principle is applied in practically every other jurisdiction
in north-western Europe, and very successfully, and in most of
those jurisdictions those fines are collected. We know from the
research evidence that a very high proportion, possibly as many
as two-thirds, of all defendants in the magistrates' courts are
dependent upon state benefits. Thus, the nettle that has to be
grasped is, are people on benefits capable of being fined? If
they are not capable of being fined, what else are we to do with
them? I think myself that if the unit fine principle were restored,
and the proportion of state benefit that could be paid in the
form of a fine, which is currently limited to five per cent, were
increased to the sort of level that the courts typically like
to have paid per week, which is normally about £4 or £5
minimum per week, we could fine a much greater proportion of the
defendants before the courts than we currently do, and collect
them by deducting them at source, and doing so in a much more
efficient way than the very cumbersome way in which it has to
be done currently. Basically, at present fines cannot be deducted
at source unless the person is already in breach. So you have
to wait for non-payment to happen before you move into it, and
it is a complicated process, as a result of which, the numbers
of defendants who are currently having fines deducted at source
is pitifully small in relation to the overall number of defendants
who are being fined. I repeat my earlier point: if unemployment
has progressively fallen for the last 9-10 years, can it be logical
for our use of the fine to have declined at the rate that it has
done, from 42 to 28 per cent for indictable offences? One of the
errors of the scheme in 1991 was that we included in the unit
fine principle standard administrative fines for traffic offences,
so that if you were the driver of a car that faded in an uncomfortable
position and you came to rest on a double yellow line, and you
then got a standard ticket for a £40 fine, and you thought
that that was a bit unfair given the circumstances of your standing
there, and you challenged it in court, and you did not give any
information about your income, then on unit fine principles it
would be assumed that you had an average income and you could
end up with what looked like a massive fine. My own view is that
it is not sensible to attach the unit fine principle, as we did
in 1991, to fines where defendants are not likely to appear, so
those traffic offences should be left out of the equation.
41. One of the problems with multiple offenders
is that if you fine them and you are deducting from their benefit
at say £4 a week, you cannot deduct their latest fine until
they have finished paying off the backlog, and therefore it is
of no interest to them one way or another; they just recognise
it as a permanent feature of their life. I can remember cases
in my own constituency where that has been the case. That naturally
brings the system of fines into discredit.
(Professor Morgan) Yes. There are quite a lot of people,
of course, who regard repeated parking offences as a standard
feature of their life. I agree with you it is a problem.
42. Not just parking. I was thinking in particular
of a case of a lady who was killed by a driver who had no insurance,
no tax and who had probably been drinking, and his fine, a large
fine, was to be deducted at £2 a weekthis is several
years agoand be added when he had finished all his other
fines, which were also for driving offences of that nature.
(Professor Morgan) But someone who had been convicted
of relatively serious offences of that nature, and over a period
of time, I would agree with you we would probably have to be thinking
of something else, but it is a mythand I want to underline
it as a myththat we cannot do what I am proposing because
a very high proportion of persons fined in the magistrates' court
are likely to have multiple debts for which they are already having
deductions from their benefits for utilities bills. In fact, the
Home Office did some research on this issue at the beginning of
the Nineties and the proportion who were in that position and
who were incapable of having deductions made for fines at any
point in a 12-month period was relatively small.
43. I will draw the Home Secretary's attention
to your remarks on this.
(Professor Morgan) I have already drawn the Home Secretary's
attention, but I would be grateful for your endorsement.
44. We will follow it up.
I have another question. If someone is sentenced to community
punishment, how long normally elapses between the sentence and
them actually joining a community punishment scheme?
45. Does that happen, generally speaking?
(Mr Hutchings) It would vary from area to area. It
is something which is monitored by the National Probation Directorate
in terms of its monitoring of national standards, and it has been
something we have looked at in our area inspections as well.
46. What conclusions have you reached?
(Mr Hutchings) The conclusion would be mainly that
some services could do better, others are able to achieve this
very successfully. A lot of it depends on the efficiency of the
area systems to get people into work quickly. There are some people
where it would be more difficult to get them into work quickly,
for example, if they had family commitments, those sorts of things,
but in the main, most areas take the view that people could be
started in that time, and indeed, some people would hope to start
people within a much shorter period than the ten days.
47. As far as sentencing policy is concerned,
we know that the Lord Chief Justice came under much fire because
of remarks he made, particularly regarding people convicted of
burglary as a first offence. I wonder how far you feel, Professor
Morgan, that you have a responsibilityperhaps you consider
that you do not; you will soon tell usin trying to persuade
the courts that in many instances a custodial sentence would be
(Professor Morgan) I do not think it
is my place to comment on what should be sentencing policy generally.
That is not my function. That is a task for others. What I do
think is very important is that, given that we have a proliferation,
which has gathered pace during the 1990s, of non-custodial community
penalties, it is incumbent on the Probation Service effectively
to explain to sentencers, both nationally and locally, what the
day-to-day reality of those sentences operationalised is, so that
they fully understand what is going to be required of an offender
and what the sentence will mean. I am not persuaded that the Probation
Service does yet as effective a job right across the country in
that regard as it might do. I think we need to have much better
communication in some areas. Some areas do a splendid job, and
I have attended conferences for sentencers in different parts
of the country where it has been done very effectively, but I
know that the Magistrates' Association feel that communications
between the Probation Service and sentencers in some parts of
the country is not as good as it might be, and I think we have
to pay more attention to explaining the meaning of non-custodial
sentences very much better than is currently the case.
48. How can that be done?
(Professor Morgan) I think it can be done by a variety
of means: meetings with sentencers; using some offenders to explain
what a sentence has meant for them in reality is extremely effective;
in addition, attaching pamphlets to pre-sentence reports, spelling
out precisely what a particular programme means if the court decides
to impose a community rehabilitation order with a provision for
involvement in a particular accredited programme; and so on and
so forth. Perhaps I could highlight it like this: there is enormous
enthusiasm amongst sentencers, we know from the early evidence,
for the drug treatment and testing order. I do not know how familiar
you are with the way that order works but one of the requirements
is that the offender be brought back to court periodically for
the sentencer to review the operation of the order, which means
that there is feedback, which means that the sentencer takes ownership,
to some extent, of the way it is working. They will receive regular
reports on whether the drug usage by the offender has reduced;
whether there is evidence, even if the offender continues to use
drugs, that it is at a reduced level; and whether the evidence
suggests that he or she is not offending. There is great enthusiasm
for this order and it means that sentencers are much more attuned
to the difficulties of weaning people dependent upon class-A drugs
off that habit; the time that it takes; and the fact that you
cannot reasonably expect all drug usage immediately to cease and
that what we are looking for is progress. All of the evidence
suggests that crown court judges, district judges and lay magistrates
are very willing to let orders continue to run, even where there
is evidence of drug usage, providing that there is evidence of
progress. I think that sort of communicationwhich of course
is one of the proposals in the Halliday Report and now in the
provisions of the Criminal Justice Billsuggests that is
one way in which the views of the judiciary may be changed by
49. I have one last question on this. When you
say that it is not your role in any way to comment on sentencesand
perhaps you consider that it is a matter for your counterpart,
the Chief Inspector of Prisonsdo you feel in any way a
responsibility to spotlight the crisis in prisons: hopelessly
overcrowded; two in a cell, perhaps, in some cases, three in a
cell; humiliating conditions and the rest of it, which in no way
would possibly be seen as a form of rehabilitation once these
people are released? Do you feel there is a responsibility to
draw attention to that aspect?
(Professor Morgan) Yes.
50. Have you done so?
(Professor Morgan) That is why, in the last three
or four months I have been talking about the overloading of the
correctional services and the fact that I think, if that trend
continues, it may be unsustainable. Because it is not my function
to talk about the appropriateness of particular sentences in particular
cases but it is, I think, the duty of both myself and the Chief
Inspector of Prisons to talk about the repercussions of overall
policy and the way it works through in terms of the operation
of the probation service and the prison service. That is why I
have been talking in the way that I have about sentencing drift,
and not just overcrowding of prisons but the silting up of probation
caseloads with low-risk cases. It is a misuse of resources which
I do not think adequately protects the public.
David Winnick: We certainly have a crisis
in the prisons all right.
51. Mr Hutchings, just going back for the moment
to this question of the time that elapses between the imposition
of an order and actually getting on to a suitable programme. Here
is a letter I received yesterday from a probation officer in North
He says that someone sentenced to a community order could wait
for up to six months for a letter summoning him or her. Is that
(Mr Hutchings) It may happen. We would be
severely critical of that. My impression of it from inspections
is that, even in London, that would be very much the exception
to normal practice. He is saying that is the general
52. Perhaps I have misunderstood it. He says,
"From the look of the "Community Orders" in this
(Mr Hutchings) Is this from Mr Watson?
53. Ah, you have got him.
(Mr Hutchings) Yes, he sent Professor Morgan a copy
of his letter.
54. He did send you a copy of it, yes. "...
an offender will be "sentenced" to, say, a "programme
requirement", and [s]he will not be under supervision of
a probation officer at all. [S]he will just go home and wait for
a letter summoning them to start the group, which could be anything
up to six months later, such is the shortage of groups."
(Mr Hutchings) I have seen that letter. I think it
is about an accredited group work programme rather than a community
55. Yes, it is, you are quite right.
(Mr Hutchings) So there is a difference there. Clearly
the times which people may have to wait to start programmes may
be longer, although, I would imagine, in an area like London there
will be sufficient offenders for offenders to start groups reasonably
frequently. The expectation certainly of ourselves and the National
Directorate is that somebody who has a condition to attend a programme
would be under the supervision of a probation officer, their case
manager, from the moment they left court when the order was made.
Chairman: Thank you very much.
56. Professor Morgan, earlier you referred to
the caseloads, the number of staff and so on. How do you assess
the current state of staff morale?
(Professor Morgan) I think the whole
question of morale in any service is extremely difficult. I myself
have worked in the public sector throughout my employed life and
every branch of the public service in which I have worked has
always described itself as in a "dreadful state of morale"
and "its lowest ever," so I am relatively sceptical
about such assertions. That is not to say that I am complacent
about the morale problemand I have referred to it at several
points already todaybut it is not my impression that there
is a dreadfully low state of morale in the probation service.
When I go out, I encounter a great deal of professional pride
in new skills, many of which have been developed in a very recent
period in relation to the "What Works" programmes. The
composition of the probation service has changed quite significantly
in the last five/six years. We have already referred to the significant
increase in the number of so-called probation service officers
who have been recruited to deliver programmes and to undertake
other categories of work. I think it is on the cusp, frankly.
The industrial action taken in a minority of areas is a straw
in the wind, something to which we have to play close attention.
It reflects what I think I would describe as mood music: concern
about caseloads, about adequate support, about what the immediate
future is going to look like. The service has gone through a period
of massive change in the last three or four years and the fact
that we have potentially no fewer than five Bills, all of which
have some implication for the work of the probation service, currently
before Parliament in this session, signals other major changes
for the service to cope with. So there is concern about the future,
about what it is going to look like, there is concern about workloads,
but I would say that there is not a chronically low state of morale.
There is as much pride in new skills and developments as there
is concern about the changes that have taken place.
57. Cannot pride in one's job also mean that
there is low morale if they are having to take industrial action?
You are saying these are straws in the wind and then you go on
to indicate all the additional changes and increased workload
which is coming down the track with the Criminal Justice Bill
and, in particular, the Custody Plus scheme.
(Professor Morgan) This is why I have balanced everything
I have said hitherto in terms of those changes and the degree
to which we are able to arrest the sort of sentencing drift that
we are talking about. There are a lot of uncertainties. We do
not know what the resources position is going to look like in
order to back the changes in the Criminal Justice Bill, for example,
and when those changes are going to be implemented. It may be
that huge additional resources are going to be provided to back
them up, and they can be implemented earlier. If not, then I emphasise
once again that I think we have to do something to relieve the
service of some of the work that it currently undertakes and we
need initiatives to pursue that objective.
58. Based on what has happened over the last
few years and the changes that are coming down the track, is the
Government making sufficient allowance for the increased workload
in the new sentencing proposals? For example, would weekend prisons
be one way of assisting?
(Professor Morgan) I would have thought that weekend
imprisonment would almost certainly be an irrelevance to most
of the issues that we have been discussing. Even if it were introduced,
it would probably engage a remarkably small proportion of all
59. Putting that to one side, is the Government
therefore making enough allowance for all the changes which it
has introduced and those that are proposed?
(Professor Morgan) We reserve our position about the
workload and the strains, and that is why we have said it is something
to which we want to pay close attention in the next year or two.
The question you asks involves a large number of contingencies.
Of the Bills before the House, I do not know yet which provisions
Parliament will approve. I do not know what amendments might be
introduced which might further some of the objectives that we
have been talking about; for example, resuscitating the use of
fines and the degree to which the probation service might be relieved
of some of the work currently being undertaken. There are so many
contingencies that I think it is impossible to answer your question.
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