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Session 2006 - 07 Publications on the internet General Committee Debates Criminal Justice and Immigration Bill |
Criminal Justice and Immigration Bill |
The Committee consisted of the following Members:Alan
Sandall, Committee
Clerk
attended the
Committee
WitnessesRt
Hon David Hanson, MP, Minister of State, Ministry of
Justice
Maria
Eagle, MP, Parliamentary Under-Secretary of State for
Justice
Christine
Stewart, Director, Law and Sentencing Policy, Ministry of
Justice
Mark de
Pulford, Head of Better Trials Unit, Office of Criminal Justice Reform,
Ministry of
Justice
Mr.Vernon
Coaker, MP, Parliamentary Under-Secretary of State for the Home
Department
Simon
King, Head of Violent Crime Unit, Home
Office
Public Bill CommitteeTuesday 16 October 2007(Morning)[Sir Nicholas Winterton in the Chair]Criminal Justice and Immigration Bill10.30
am
The
Chairman:
I welcome hon. Members to this first sitting of
the Public Bill Committee on the Criminal Justice and Immigration Bill.
Although I have already done so in the Programming Sub-Committee, I
welcome in particular those new hon. Members who have been thrown into
the lions den at an early stage of their parliamentary
careerthe hon. Members for Ealing, Southall and for Sedgefield.
I hope that they enjoy our proceedings.
Before we begin, I have several
preliminary domestic announcements to make. I am always pleased that
hon. Members are as comfortable as possible so, if they wish, they may
remove their jackets during our sittings. I request them to ensure that
their mobile telephones, pagers and other electronic devices that make
noise are turned off or switched to silent mode during sittings. If I
hear any intervention from such gadgets, the look on my face will tell
all.
I remind the
Committee that copies of the money resolution in connection with the
Bill are available in the room. I also remind hon. Members that
adequate notice should be given of amendments. As a general rule, I and
my fellow Chairman, Mr. OHarawho happens to
be in the roomdo not intend to call starred amendments,
including any that might be reached during an afternoon sitting of the
Committee. I hope that the lead spokesmen for Opposition parties, in
particular, will take note of
that.
We are still in
the very early days of taking oral evidence in Public Bill Committee
proceedings, so it might help if I explain briefly what is proposed so
that we can all be clear what we are about and how we should proceed.
The Committee will first be asked to consider the programme motion on
the amendment paper on which debate is limited to half an hour. We
shall then proceed to a motion to report written evidence and a further
motion to permit the Committee to deliberate in private in advance of
the oral evidence sessions, which I hope that we can take formally.
Assuming that that motion has been agreed, the Committee will then move
into private session. After it has deliberated, witnesses and members
of the public will be invited back into the room and our oral evidence
session will commence. If the Committee agrees to the programme motion,
it will hear oral evidence today and on Thursday before reverting next
week to the more familiar proceedings of clause by clause scrutiny of
the Bill. I call the Minister to move the programme
motion.
That
(1) the
Committee shall (in addition to its first meeting at 10.30 a.m.
on Tuesday 16th October)
meet
(a) at
4.00 p.m. on Tuesday 16th
October;
(b) at 9.00
a.m. and 1.00 p.m. on Thursday 18th
October;
(c) at 10.30
a.m. and 4.00 p.m. on Tuesday 23rd
October;
(d) at 9.00
a.m. and 1.00 p.m. on Thursday 25th
October;
(e) at 10.30
a.m. and 4.00 p.m. on Tuesday 20th
November;
(f) at 9.00
a.m. and 1.00 p.m. on Thursday 22nd
November;
(g) at 10.30
a.m. and 4.00 p.m. on Tuesday 27th
November;
(h) at 9.00
a.m. and 1.00 p.m. on Thursday 29th
November;
(2) the
Committee shall hear oral evidence in accordance with the following
table:
(3)
the proceedings on consideration of the Bill in Committee shall be
taken in the following order: Clause 1; Schedule 1; Clause 2; Schedule
2; Clause 3; Schedule 3; Clauses 4 to 6; Schedule 4; Clauses 7 to 23;
Schedule 5; Clauses 24 to 29; Schedule 6; Clause 30; Schedule 7;
Clauses 31 to 35; Schedule 8; Clauses 36 to 48; Schedule 9; Clauses 49
and 50; Schedule 10; Clauses 51 to 53; Schedule 11; Clause 54; Schedule
12; Clauses 55 and 56; Schedule 13; Clauses 57 to 72; Schedule 14;
Clauses 73 and 74; Schedule 15; Clauses 75 to 80; Schedule 16; Clauses
81 to 103; Schedule 17; Clauses 104 to 107; Schedule 18; Clauses 108 to
111; Schedule 19; Clause 112; Schedule 20; Clauses 113 to 124;
Schedules 21 and 22; Clause 125; Schedule 23; Clauses 126 to 129; new
Clauses; new Schedules; remaining proceedings on the
Bill;
(4) the
proceedings shall (so far as not previously concluded) be brought to a
conclusion at 7.00 p.m. on Thursday 29th
November.
I welcome
you, Sir Nicholas, and your co-Chair, Mr. OHara, to
the Committee. You and I have served before as Chairman and Minister in
my previous incarnation as Minister of State for Northern Ireland. You
will recall that, on that occasion, the Northern Ireland (Offences)
Bill received the unanimous support of myself and the Whip, and no one
else on the Committee. However, I am sure that this Bills
objectives will achieve a much greater consensus than that, and I look
forward to our debate in Committee
today.
We had, I hope,
a good discussion on Second Reading and in the Programming
Sub-Committee when the programme motion was agreed by hon. Members. I
am pleased to see that, perhaps as part of a new consensus of
government, the hon. Members for Broxbourne, for Ruislip-Northwood and
for Kettering are sitting on the Government Benches, and I look forward
to their votes with the Government on the matter. I am sure that the
hon. Member for Ruislip-Northwood, who has the Whip, will not feel at
all compromised by those matters in due course.
On Second Reading the hon. and
learned Member for Harborough made some valid points that he will
consider in Committee. As I recall, he unfairly declared the Bill to be
rather like a plum-duff. Perhaps because of my working class
background, I did not eat many plum-duffs in my childhood, but I am
sure that it will prove to be a satisfactory meal for us all during the
course of the debate.
The programme motion provides
two full days for oral evidence, which is a new concept. This is the
first opportunity that I have had, during the 20 or so Bills that I
have taken through as a Minister or Whip, to see this new operation
working, and I genuinely look forward to seeing how we can help to
support the passage of the Bill and get some views from members of the
Committee. I am particularly looking forward to working with my
colleagues the Under-Secretary of State for Justice, my hon. Friend the
Member for Liverpool, Garston and the Under-Secretary of State for the
Home Department, my hon. Friend the Member for Gedling. We will be
giving evidence very shortly to the Committee on those
matters.
There is
provision in the programme motion for nine other witnesses to give
evidence to the Committee to help us with out deliberations on the
Bill. As Members will see, the Magistrates Association, the Probation
Boards Association, the police, Stonewall, Liberty, the Local
Government Association, the Youth Justice Board and the prisons and
probation ombudsman will all give evidence.
I should inform the Committee
that my hon. Friend the Member for Tooting and the hon. Member for
Ruislip-Northwood have discussed whether we can add additional
witnesses, and particular mention was made of the need to include the
Evangelical Alliance to give representations to the Committee on some
clauses that will certainly create discussion and have already elicited
an interesting level of correspondence to hon. Members. I am happy to
agree to that suggestion if the Committee so wishes. If so, I will
bring back a motion either this afternoon or on Thursday morning that
will add the Evangelical Alliance to the list of witnesses and allow
them to make representations accordingly.
I also offer my personal
welcome to my hon. Friends the Members for Ealing, Southall and for
Sedgefield. My hon. Friend will know that it has been a considerable
time since a Member for Sedgefield last sat on a Committee of this
nature. I know that both hon. Members will make valid contributions
and, I hope, will view this as a valuable experience in coming to grips
with some of the day-to-day matters of scrutiny in the House.
After we have taken oral
evidence, the programme motion provides for 12 sittings for the usual,
detailed, clause-by-clause consideration of the Bill. Because the
Bills carry-over motion for the House has already been approved
and the Gracious Speech will take place on 6 November, we will take a
break for Prorogation and resume on 20 November, with the current end
date of 29 November for the completion of the Committees work.
While that is a relatively short amount of time, I hope that the
Committee will work to that timetable and will be able to detail how it
wishes to handle the Bill, according to the demands of the Opposition.
The Government are happy to go at whatever speed Opposition
Membersboth official Opposition Members and the hon. Members
for Cambridge and for Somerton and Fromewish to
participate.
To
assist the scrutiny of the Bill, I wrote to you yesterday, Sir
Nicholas, giving details of amendments for consideration in Committee
that have been tabled before you today. I can give an
assuranceI know that this is an issue with which you have some
concernsthat, whenever possible, I will give as much notice as
possible to the Committee of any Government amendments that may come
forward. There are still some outstanding policy issues that my right
hon. Friend the Secretary of State for Justice and Lord Chancellor gave
notice of on Second Reading. We will deal with those, prior to the
tabling in Committee, as soon as possible after the drafting
instructions have been completed, so that hon. Members have an
opportunity for further
scrutiny.
Finally, it
may help all members of the Committee if I advise them that we have
divided the legislation broadly into select parts for myself and my
colleagues to deal with. Parts 1 and 2 of the Bill will be dealt with
largely by me; parts 3 to 6 of the Bill will be taken by my hon. Friend
the Under-Secretary of State for Justice; and my hon. Friend the
Under-Secretary of State for the Home Department will lead on the Home
Office provisions contained in parts 7 to
11.
I look forward to
a constructive and searching debate and to hon. Members
contributions to the Committee. Given that all parties accepted the
programme motion during discussions in the Programming Sub-Committee
last Thursday morning, I commend the motion to the
Committee.
The
Chairman:
I am sure that members of the Committee are
grateful to the Minister for the reasonable and constructive way in
which he has set out the contents of the programme
motion.
Mr.
Edward Garnier (Harborough) (Con): I join the Minister in
welcoming you, Sir Nicholas, and your colleague,
Mr.OHara, as Chairmen, both of the evidence sessions
and of the main Bill Committee, starting next week. I also welcome the
Minister and his ministerial colleagues. I have done business with two
of them, but not with the Under-Secretary of State for Justice, and I
look forward to dealing with her arguments as we
progress.
I, too, join
the Minister in welcoming the two new Members of Parliament to the
Committee. They are under no disadvantage whatever, because we are all
new to this procedure. Whether it is any use we will
shortly discover. I have some private doubts as to the usefulness of the
arrangementI say that these are private doubts because we are
in Committee, so no one is listeningbecause the Public Bill
Committee starts next week and there is, therefore, very little time
between the closing of the evidence sessions on Thursday and the
beginning of the Committee on Tuesday, for the Government to do
anything about the evidence that they have
received.
It would be
ridiculous and unduly cynical of me to suggest that that was the entire
point of the exercise and that this was a release valve system to allow
outside bodies to think that they are having some input into the
construction of the pudding, and for the Government to doff their cap
to democracy, then move on and do precisely as they always intended to
do. We shall see; I know that the Minister of State, Ministry of
Justice is a man of immense good will and will seek to accommodate the
criticisms, be they constructive or otherwise, that emanate from my
partys benches and those of the Liberal Democrats during the
course of proceedings. Needless to say, I am pleased that he is
contemplating, through discussions between the hon. Member for Tooting
and my hon. Friend the Member for Ruislip-Northwood, adducing more
evidence during the course of proceedings, namely from the Evangelical
Alliance.
I made some
suggestions to the Government in the summer about witnesses whom I
thought were appropriate for this hearing. I cannot understand it, but,
either the letter must have got lost or they did not find my
suggestions entirely happy ones. I would have thought that it would
have been useful in such a Bill to have heard evidence from, if not the
Lord Chief Justice, perhaps his deputy, Sir Igor Judge, and from
representatives from the council of circuit judges. That is, the Crown
court judges, who have to deal, along with the magistrates, from whom
we are hearing, with the bulk of first instance criminal
cases.
10.45
am
I described the
Bill on First Reading as a plum-duff. I could use any other suitable
metaphor to demonstrate that it has been pulled together without a
theme; no central argument seems to push through its core. It is simply
a collection of nice ideas, in the Governments thinking, which
have been pulled together under one title, the Criminal Justice and
Immigration Bill. It seems to me that there are a number of issues in
the Bill that should have been separated into different pieces of
legislation. That would embarrass the Government because it would take
the number of Bills from this Department and its predecessor into the
stratosphere. I do not feel that it will add to public safety or reduce
reoffending. However, we will discuss that in due
course.
I am, none the
less, content for the moment with the programme motion. I am sure that
my hon. Friends sitting on what the Minister described as the
Government Benches are merely rehearsing for what will be the
inevitable
The
Parliamentary Under-Secretary of State for Justice (Maria
Eagle):
You are not expecting to be in the
Government.
Mr.
Garnier:
I said that I was looking forward to the hon.
Ladys arguments. If they are at that level, I am looking
forward to them even
more.
Hon. Members
from all sides welcome this opportunity to expose the incompetence and
uselessness of Government legislation of any variety. We cherish, and
indeed relish, the opportunity to engage in argument, as I am sure the
hon. Member for Somerton and Frome will agree, in the most calm,
cautious, thoughtful and considered way over the next few very brief
weeks. Let us enjoy it, but let us try to produce some decent
legislation, rather than just churn out the conveyor belt of early-day
motion-style legislation, which achieves nothing except a headline in
the occasional tabloid
newspaper.
With those
happy remarks, on behalf of all of my parliamentary colleagues from the
official Opposition, I welcome you, Sir Nicholas, and the ministerial
team. I trust that we will have a constructive few weeks doing
business.
Mr.
David Heath (Somerton and Frome) (LD): I too welcome you
to the Chair of this Committee, Sir Nicholas, along with your
co-Chairman, Mr. OHara. I have worked with both of
you in the Chair and know that you will keep excellent order and
maintain a high level of
scrutiny.
There has
been a lot of talk, on Second Reading and today, about the number of
criminal justice and immigration Bills that we have dealt with. It has
been my sad misfortune, over 10 years, to have participated in most of
them. I feel that I might have heard every possible argument on
criminal justice that it is possible to adduce. The hon. and learned
Member for Harborough said that Government legislation is all useless
and incompetent. It is not all useless and incompetent; it is just
mostly useless and incompetent. Our job is to identify and promote
those parts that are not useless and incompetent and to remove some of
the surplus to another
place.
I am grateful
to the Minister and his team, who I also welcome to the Committee, for
having listened to what I said about the programme motion on Second
Reading, and for arranging an alternative to be agreed by the
House.
I, too, am new
to the procedure of Public Bill Committees taking evidence and I echo
some of what the hon. and learned Gentleman said. If Public Bill
Committees taking evidence is to mean anything, it is important, first,
that we hear from the people who have something that it is important
that we hear and, secondly, that we have the opportunity to deliberate
on that information to see whether it has relevance for what we do
later.
I must say to
the Government that it would have been far better had we not started
any of the deliberative sittings until after Prorogation. We were quite
clear that we would have evidence sessions before that. Given the
unique timing of having Prorogation in the middle, it would have been
better to have the opportunity of carefully considering the evidence
over that period, which fortuitously we have in the middle, and of
starting the line-by-line scrutiny of the Bill afterwards. If the
evidence sessions are to work, who
the Committee hears cannot be in the hands of the Government. I know
that there have been talks between the hon. Members for Tooting and for
Ruislip-Northwood. The hon. Member for Ruislip-Northwood was kind
enough to speak to me in the Tea Room yesterday and to give me the
benefit of some of his thoughts.
We need a more formal
arrangement outside of the Committee, which would enable us to discuss
which witnesses it would be appropriate to call, and to take that
advice from a wider section of the Committee. When we take evidence,
the Committee does not act as a hierarchy but as a Select Committee.
Therefore it would be open for all hon. Members to suggest who might
usefully give evidence. That structure is not in place at the moment
and as a result, although I have no doubt as to the value of the
evidence that we will hear, there are certainly people whom my hon.
Friend the Member for Cambridge and I could suggest as useful
witnesses. The hon. and learned Member for Harborough has already
suggested people from the judiciary whom it would be useful to hear
from, but there is a wider spectrum of people who will be affected by
the Bill and whom we should consider.
Perhaps, Sir Nicholas, we can
find a way to examine the witnesses whom the Committee is to call and
to take a view on whom we would like to hear from. If the consequence
of that is that we have more evidence-taking sessions before
Prorogation, and the line-by-line scrutiny takes place after
Prorogation, to me that is no bad thing.
There are very important
matters for consideration. I am going to forswear any pudding
metaphors, but the Bill covers a wide range of issues. There is
noI think the current term is
narrativethat links many of those issues, and
it is therefore important to give each and every part of the Bill our
careful scrutiny.
There are large parts of the
legislation with which I broadly agree, in principle if not in detail.
There are some areas where I will strenuously disagree with the
Minister, but that is something that the Committee will examine over
the weeks to come and I personally look forward to
it.
The
Chairman:
May I help the Committee by responding to one or
two of the points that the hon. Member for Somerton and Frome has
raised? Of course matters relating to those witnesses who come before
the Committee can be discussed and agreed upon across the House,
outside the Committee. Such matters must then be put to the Programming
Sub-Committee which would endorse any other proposals. The Programming
Sub-Committee would then report to this Committee, which, as a whole,
could agree upon and endorse its recommendations. There is an
opportunity for flexibility and I hope that that gives some
reassurance. If the Minister would like to intervene at this stage I am
happy for him to do so.
Mr.
Hanson:
I should like to respond to some of the points
raised as I would not want the Committee to take all of them at face
value. There is a strong Government defence for some of those
issues.
First, I say
to the hon. and learned Member for Harborough that any witness who
gives evidence to the Committee will have the opportunity to raise
points
with the Government, the Opposition and individual Labour Members, in
order to influence the Bills progress. Some issues may be
raised during evidence sessions that we are not able to act upon during
the Bills initial consideration. However, the hon. and learned
Gentleman will know that there is not only the Committee stage, there
is also Report, proceedings in the other place, and Third
Readingthere is a whole range of mechanisms through which we
can absorb the views that are put. If the Government and hon. Members
believe that the points raised are valid, we will consider and accept
them.
Mr.
Garnier:
My main concern is that the evidence
session is timetabled to finish this Thursday and the Public Bill
Committee to start next Tuesday. Would it not be more sensible to allow
a period of reflection between the end of the evidence sessions and the
beginning of the Public Bill Committee? If one started the Bill
Committee after the start of the new Session, the Government would have
the advantage. I am not suggesting that they would necessarily reach
any different conclusionsthat would be a hope too
farbut they would at least have the opportunity of being seen
to have that time to reflect on the evidence. Therefore, my gentle
suggestion is that Ministers spend next week at the Ministry of Justice
and the Home Office reflecting on what they have heard this week rather
than going through the line-by-line discussion of the
Bill.
Mr.
Hanson:
I am grateful for the hon. Gentlemans
suggestion. However, that suggestion was not put to the Programming
Sub-Committee or indeed to the usual channels before their discussions.
I commended the programme motion before the Committee today. I say to
the hon. and learned Gentleman that the purpose of these evidence
sessions, as outlined by the Leader of the House, is to ensure that we
have some wider debate on such points.
I will make two other quick
points. There was a suggestion that the Opposition had not been
consulted about the individuals who form the Committee and that the
hon. and learned Gentlemans letter had got lost in the post. He
will know that I wrote to him about such matters before the recess, and
he will know that my hon. Friend the Member for Tooting discussed the
matter with the official Opposition. He will also know, if he looks at
his letter and file, that as a result of his representations, the
Police Federation and the Probation Boards Association have been added
to the list of witnesses for the Committee in the programme motion. The
time available to debate the programme motion prevents me from going
any further now.
The
hon. and learned Gentleman will know that we also approached the
judiciary on his suggestion to see if they wished to participate in
evidence session. The judiciary declined to take part because of the
party political nature of some of the discussions that might take
place. He will reflect on the fact that we have considered such matters
and, in doing so, have accepted some of his suggestions. I am very
happy to do that because my hon. Friend the Member for Tooting was
exemplary in the way that he held discussions with colleagues
beforehand, as indeed were my officials, to ensure that we had a full
replication of the wishes of the Committee.
I would say the same, without
being too hasty, with regard to the hon. Member for Somerton and Frome.
The same discussions were held with the official Opposition. My hon.
Friend assures me that he has had discussions with the Liberal
Democrats in relation to the witnesses and the Select Committee aspect
of the Bill. I have been assured by him that the Liberal Democrats did
not propose one single witness to attend this evidence session. I am
very relaxed about that. At the end of the day, we are a Committee and
we will seek evidence from individuals and individuals will put points
to the Committee. As a Minister, I and my colleagues will try to
facilitate the opportunity for individuals to put evidence in a
positive way to the Committee.
In final summation, I welcome
the fact that we can add the Evangelical Alliance. The programme motion
before the Committee was agreed without a Division in the Programming
Sub-Committee. If I can break confidences, there was very little
discussion at that stage about adding to the programme motion. I
commend the motion to the Committee and I hope that both the hon. and
learned Member for Harborough and the Liberal Democrats will understand
that the Government want to engage with them in a positive way. We want
to have witnesses. If there are lessons to be learned about this
process, then, certainly, we will try to learn them. However, I believe
that by trying to engage others in discussion, we have acted in an
honourable way. I hope that the programme motion reflects the wishes of
the
Committee.
Question
put and agreed
to.
11
am
That, subject to the discretion
of the Chairman, any written evidence received by the Committee shall
be reported to the House for
publication.
Mr.
Garnier:
On a point of clarification, will any written
evidence received after the close of the formal evidence sessions,
during the course of the Committee sittings, still be acceptable and
placed on the
record?
Mr.
Hanson:
The hon. and learned Gentleman will know that the
motion that I have just moved states that this is subject to the
discretion of the Chairman. I am relaxed about that, Sir Nicholas,
pending your relaxation also.
The
Chairman:
I can give a straightforward and single word
answer to the hon. and learned Member for Harborough. That answer is
yes, so I hope that that is of some reassurance.
Question put and agreed
to.
The
Chairman:
Copies of any memorandums that the Committee
receives will be made available in the Committee Room.
Ordered,
That,
at this and any subsequent meeting at which oral evidence is to be
heard, the Committee shall sit in private until the witnesses are
admitted.[Mr.
Hanson.]
11.2
am
The
Committee deliberated in
private.
11.26
am
On
resuming
The
Chairman:
We will now hear evidence from representatives
of the Ministry of Justice and the Home Office, two very important
Government Departments. I welcome the witnesses here today.
Mr. Hanson, as the lead Minister for the Government, would
you like to introduce your colleagues to the
Committee?
Mr.
Hanson:
Yes. The other Ministers are Vernon Coaker,
Under-Secretary of State at the Home Office and Maria Eagle,
Under-Secretary of State at the Ministry of Justice. Christine Stewart
assists me on sentencing policy. Mark de Pulford is involved in
supporting the work that Maria will undertake, and Simon King will
support the work that Vernon Coaker will be
undertaking.
The
Chairman:
Thank you very much. Everybody now knows who
everybody is. Questions can be directed to any of our witnesses or, for
that matter, to all of them. I hope that they will be specific to
individuals who are giving evidence to us. Before calling the first
member of the Committee to ask a question, I should like to remind all
hon. Members that questions should be limited to matters within the
scope of the Bill. I call David Burrowes to put questions on the first
matter.
Q
1
Mr.
David Burrowes (Enfield, Southgate) (Con): First, I
declare an interest as a practising criminal solicitor, particularly in
local youth courts. My first question is a general one, put on behalf
of many practitioners who often have to perform mental gymnastics in
straddling different pieces of legislation and working out which have
been implemented from the last criminal justice Act. They would want to
ask whether you really listen to and consult them. They are concerned
about the pace of legislative change, particularly in youth courts, and
wonder whether this extra Bill will deal with their concerns about that
pace and their ability to deliver justice in youth
courts.
Mr.
Hanson:
In the youth rehabilitation order we are
trying to simplify the sentencing structure, building on and learning
from our experiences with existing sentencing and tailoring sentences
to individual risk and to need. I accept that some measures now in
place are, in part, replicated in the new youth rehabilitation order.
We are trying to pull those measures together into a generic sentence
and to put in additional capability, particularly relating to
residential sentences, so that we can have a generic order through
which the court can determine what type of sentence should be
allocated. I appreciate that we continue to make changes regularly. I
hope that this Bill will simplify and modernise the youth
order.
Q
2
Mr.
Burrowes:
If the intention is to replicate in many ways
the adult rehabilitation orders established under the Criminal Justice
Act 2003, why not have an alcohol treatment requirement? Also, to allow
you to
be specific in terms of rehabilitation orders, why have you kept apart a
reparation order, rather than absorb it within a generic
order?
Mr.
Hanson:
Alcohol is a very important issue, as it is a
driver of a large element of youth crime. My hon. Friend the Member for
Warrington, North (Helen Jones) raised this issue on Second Reading, as
did the Opposition. It is a point on which I want to reflect. With our
colleagues in the Department of Health and the Ministry of Justice, we
are considering whether we need to rectify that potential omission. I
will examine the matter in detail. In the event of our being able to do
so, I will consider how I reflect that in the Committee. However, from
my perspective, it is certainly a matter that we need to
address.
The order
covers a range of matters, including activities, supervision, programme
requirements, attendance centres, curfew, exclusion, local authority
residence, fostering, mental health, drug treatment, drug testing and a
range of others. There is potentially a gap in respect of alcohol. We
did not include it because, at that stage, we felt that it was not
appropriate, but I want to reflect on that. Without making a commitment
to the Committee, let me say that I will return to it in policy terms
in due course, if we reach
agreement.
The
reparation order is separate. It has been said that there is potential
to create some confusion, but I do not believe that that is so. The
reparation order is there because, in my view, reparation and
understanding the impact of the crime is central to helping to prevent
further youth crime in future. We believe that through reparation
orders we will be able to bring home to the offender some of the impact
of their crime by showing them its impact and helping them to make
reparation in the community. Ultimately, we will change young
peoples behaviour by bringing home to them the damage of their
actions, the causes of their actions, and how they have impacted on the
communities in which they live and
work.
I hope that
reparation orders will be effective in preventing the escalation of
offending behaviour before the court needs to consider a youth
rehabilitation order. It may well be that the reparation order is used
and that it helps individuals come to turns with what they have done,
and that the youth rehabilitation order is reserved for cases where the
reparation order has
failed.
Q
3
Mr.
Nick Hurd (Ruislip-Northwood) (Con): First, I should like
to follow up on the question that the hon. and learned Member for
Medway (Mr. Marshall-Andrews) asked the Secretary of State
for Justice on Second Reading, which was what exactly this youth
rehabilitation order package contains that is not available to the
courts today. The hon. and learned Gentleman did not get an answer. I
should be grateful if the Minister gave the Committee an answer,
together with some sense of the evidence and data supporting the view
that the courts are crying out for this new generic
package.
Secondly, I
should like to know about the resources available for some of the
requirements. The evidence from the Centre for Crime and Justice
Studies, on analysing community orders for adults, is that some of the
requirements, particularly in relation to attendance
centres and drug treatment, are not widely used because they are not
widely available. I should like to get a sense of what resource back-up
is being considered to make such things more widely
available.
Thirdly,
under clause 1(3)(b), as I read it, there is increased provision for
the state effectively to take peoples children away. Given the
sorry track record of the state as a parent, which has been described
by a former Home Secretary of this Administration as a scandal, will
the ministerial team assure the Committee about the underlying
intentions in the Bill and say what evidence there is to support this
apparently chilling provision? Most peoplecertainly, my
constituentswould want the state to be focused more on making
parents more responsible for their children, rather than taking them
away.
Mr.
Hanson:
I am grateful to Mr. Hurd for
raising those points. I shall respond first to the point about the
question that my hon. and learned Friend the Member for Medway asked on
Second Reading. The requirements under the youth rehabilitation order
include the range of requirements that I have just mentioned in
response to Mr. Burrowes: activities, supervision, unpaid
work, programme requirements, curfew, exclusion, residence orders,
fostering, mental health and drug treatment and so on, most of which
are currently in place. The key new element in the youth rehabilitation
order is the requirement to participate in specified activities or
residential exercises for up to 90 days. We are including in the order
a provision whereby the so-called responsible officer under the
Billfor example, a member of a youth offending team or, indeed,
a probation officercould recommend, as part of the sentence
options to the court, that an individual participate in a residential
activity for up to 90 days. The work that has been undertaken on those
issues shows that there is great potential to stop reoffending in
enabling people to feel part of a team, learn new skills and be
involved in that way. If the Committee so wishes, I am happy to supply
further evidence of the nature of the youth rehabilitation order. I
shall circulate some further information to the Committee in due
course.
All these
measures have considerable resource implications and we obviously need
to examine them in detail within the budget of the probation service.
In the whole of my budget responsibilities, with my hon. Friend the
Under-Secretary of State for Justice, the hon. Member for Liverpool,
Garston, I have responsibilities for secure accommodation in respect of
prisons and for probation. We will try to put any savings that we can
make by stopping people going into custody into community-based
penalties. I want to see greater use of such penalties as well as
greater use of measures to keep young people out of custody, and I need
to manage the budget accordingly. I cannot give the Committee figures
today, but when we debate such matters, I should be happy to provide
additional information about the costs. There will already be a
training cost for the new order, should it be agreed by the Committee,
and we have budgeted for itfrom memory, we have budgeted about
£600,000 for training. I shall certainly give consideration
during our proceedings in Committee to setting out in more detail the
actual management of the probation and other relevant elements of the
order.
I do not recognise the third
point set out by Mr. Hurd in his interpretation of the Bill.
If you will forgive me, Sir Nicholas, I shall reflect on it with
colleagues and write to the hon. Gentleman about it, copying my reply
to other members of the
Committee.
Q
4
Mr.
Garnier:
Let me help the Minister. Paragraph 18 of
schedule 1 refers to a fostering requirement that will become part of
the punishment process that will be available to the courts.
Sub-paragraph (7)
states:
A
court may not include a fostering requirement in a youth rehabilitation
order unless the court has been notified by the Secretary of State that
arrangements for implementing such a requirement are available in the
area of the local authority which is to place the offender with a local
authority foster
parent.
On the face of
it, it looks as though the Bill is promising several things, but unless
the Secretary of State has the resources to implement them, they will
not happen. Can you tell us whether the Secretary of State has
resources in place for every local authority area, so that the
provision can be implemented? Presumably, you thought about such
matters before you drafted the
Bill.
Mr.
Hanson:
When I said to Mr. Hurd that I did
not recognise the point, I was saying that what he described is not the
practice. We want to ensure through the Bill overall that we prevent
individuals from having to be removed from their parents, and that we
support work on parenting skills and supporting
families.
To answer
Mr. Garniers point, there is a requirement for
fostering in the Bill that potentially has resource implications. We
are now working through them now. We are giving the courts extra
abilities to have that disposal available to them. Like many such
measures, it will be used as a last resort. We wish to see efforts
being put in to stop crime and prevent young people from coming before
the courts in the first place. That is why the reparation order is in
place.
Q
5
Mr.
Garnier:
I do not think that you quite understood my
point; I shall try again. We understand what you are intending to do,
but you cannot do anything unless you have the resourcesindeed,
the Bill says that you cannot do anything unless the Secretary of State
says that the resources are there. We also know that 27 per cent. of
all people in custody, be they children, young offenders or adults,
have come through the care systemthey have been looked-after
children. It seems that you are promising something when you have not
worked out whether you have the resources to provide it. In any event,
if you could provide it, would you not simply be increasing the number
of people in an already overcrowded custodial
estate?
Mr.
Hanson:
The intensive fostering requirement is only a
pilot at the moment and we are examining those issues in
detail[
Interruption.
] We are looking at
piloting that. All of these measures will have resource implications
when implemented. We are currently working through that. We have just
finished the comprehensive spending settlement for this year. These are
policy objectives with legislative back-up and I will report to the
Committee on progress as work is
undertaken.
Q
6
Mr.
Garnier:
But surely you should have thought about whether
the resources were available before drafting the Bill. We know that the
Prison Service, for example, is being asked to make 3 per cent.
efficiency savings this year; we know that there has been no increase
in the Home Office budget, which is essentially a cut; and we know that
the Ministry of Justice has not inherited any increase in its budget.
It seems to me that we have two Departments with no money to spare
introducing more things to do. However, they will not do them because
the Secretary of State will not be able to certify that he has the
provision to do so. Could you please explain to us, before the Bill
gets very much further, why these things are in it unless you can tell
the world, the public, your voters and the taxpayer that the resources
are available to achieve what you intend to put into
law?
Mr.
Hanson:
As I have said, we are committed to providing
support to ensure the roll-out of the provisions. We are currently
planning for that. I am not in a position today to give details about
the costing of each proposal, but there will be opportunities to do
that during the course of the Committee, and in future years when the
legislation has been passed by both Houses, as I hope it will be. We
are piloting the fostering order. We will be looking at all of these
matters. I am not in a position today to give details of the budget,
but I will supply the Committee with a note on our forward thinking on
these
matters.
The
Chairman:
It is my understanding that the Minister has
taken the point and I have no doubt that it will be followed up later
in our
deliberations.
Q
7
Mr.
Heath:
My question is in the same area, because I am
interested in the response to the question on general resourcing.
Resources are critical to the success of this part of the Bill and the
various orders that a court may make, and currently they are not
there.
Before our
deliberative sittings, will the Minister provide the Committee with
information about the access to health treatment, mental health
treatment and drug treatment for the residents of each criminal justice
area, so that we have some overview of the resources available in each
area and whether courts will be able to make these orders, or whether
they will be restrained by the provision not being there? Where there
are gaps, I think that the Committee should be aware of them. Can the
Minister provide that
information?
Mr.
Hanson:
I am happy to reflect on those points and I
will be happy to circulate a note on current provision and budget
resources and on future discussions about them to the Committee,
because they are important matters. However, we would not be
introducing the legislation if we did not believe that we have the
capacity to deliver it. I hope the Committee agrees that that would be
pointless.
Q
8
Phil
Wilson (Sedgefield) (Lab): I have one question on
under-age drinking, which, as we know, can in itself fuel crime. In the
rehabilitation orders there is nothing about alcohol treatment
requirements as there is in the community sentences for adults. Is that
an oversight? Will you be putting it in or is there a reason for
missing it out?
Mr.
Hanson:
I am grateful to my hon. Friend for raising
that point. As I have indicated, the alcohol issue was raised on Second
Reading and I believe that we need to reflect on it. We are currently
doing some work with the Department of Health on whether we can
practically give the support, based on the same issues that have been
mentioned about finance and deliverability. I will be looking at that
very closely because, without branding all young people as the same,
alcohol is a problem that can fuel antisocial behaviour and youth
offending. I think that it is an area that we need to examine in more
detail and hope that I can consider this with other Departments and
bring forward appropriate regulations in due
course.
Q
9
Mr.
Garnier:
Will the Bill, and particularly part 1, which
deals with youth justice, lead to an increase, a decrease or a
standstill in the number of young people in
custody?
11.45
am
Mr.
Hanson:
Our intention is to reduce the number of
people in custody because we want to try to stop offending in the first
place. That is why some of the issues here are determined to be
alternatives to custody. I am very much in favour of looking at
stronger community penalties, and the new youth offending order will
include a range of issues that are potentially alternatives to custody.
We have not assessed the numbers, but I hope and believe it will reduce
the number of people going into
custody.
Q
10
Mr.
Garnier:
Have you done any planning or carried out any
projections of how it will affect the custodial
population?
Mr.
Hanson:
No. We are looking at that. I anticipate that
the forward look on community sentences will reduce the number of
individuals in custody. I cannot give the Committee a figure, but our
assessment is that that will be an alternative to custody, and that is
our wish.
Q
11
Mr.
Garnier:
Will you share with the Committee at some stage
your thinking and the evidence that your Department, as you have
designed this Bill, will have taken in relation to resource
implications and the numbers of people being disposed of by the courts
either through the community punishment system, or in respect of
youngsters through referrals or going into custody? As you know, your
prison estate is completely full and you have no room for any
more.
Mr.
Hanson:
I am happy, as always, to share information
with the Committee as it is vital to deliberate on these important
matters. Our assessment is that these provisions are designed to try to
reduce the number of young people going into custody by putting in
place mechanisms through the reparation order and the youth offending
order to stop people going into custody. The new 90-day residential
facility is designed specifically for that
purpose.
The
Chairman:
Can we now move on to part 2, sentencing? I ask
Mr. Garnier to put his question to the
Minister.
Q
12
Mr.
Garnier:
As my hon. Friend Mr. Burrowes made
clear, I am a sentencer. I sit as a Crown court recorder, so I have to
digest this measure, as I had to digest the 2003 legislation, which I
shall now have to put aside in order to digest this one and many of the
other measures that the Government have passed over the last 10
years.
Why are you
abolishing the suspended sentence for summary offences? What is the
thinking behind that
policy?
Mr.
Hanson:
Again, sentencing figures suggest that the
courts are imposing substantial numbers of extended sentences for
summary offences only where community sentences could previously have
been used. I want to offer some clarification so that we are not
putting in place suspended sentences where community sentences would
have been more appropriate.
Q
13
Mr.
Garnier:
Surely you will have consulted the Judicial
Studies Board on this matter. You understand that you do not consider a
suspended prison sentence until you have worked out whether that
offence, that offender and the circumstances surrounding that
particular set of facts merit a custodial punishment in the first
place. You have got to cross the custodial threshold, and it is only
when you have considered the special circumstances of the offender and
perhaps other matters that you then go back to consider whether you
should suspend that custodial sentence. It is not an alternative to a
community sentence, it is an alternative to immediate
custody.
Mr.
Hanson:
When I examined sentencing trends they
suggested to me that a substantial number of cases where suspended
sentences were imposed were those where previously a non-custodial
sentence would have been appropriate. The figures for 2005 and 2006
show that the immediate custody rate has remained stable at 7 per
cent., whereas the usage of suspended custody orders has increased from
1 per cent. in 2005 to 3 per cent. in 2006. I am of the view that we
need to give some clarity to courts to ensure that we can provide
stronger community sentencing, which I think is more
effective.
Additionally, there are a
number of cases in which suspended sentences have resulted in breaches
and people are brought to prison, and I believe that that in itself is
not necessarily the best way to deal with those individuals in the
longer
term.
Q
14
Mr.
Garnier:
Well, you can give a suspended sentence with
requirements that are additional to it. There are already existing
mechanisms to deal with that sort of
behaviour.
Can I take
you on to indeterminate sentences for public protection, as we have to
rattle along? Could you explain the English of clause 12, in which you
attempt to clarify your new regime with relation to imprisonment for
public protection measures? IPPs were introduced in the Criminal
Justice Act 2003 with some degree of fanfare. Clause 12 seems to prick
the enthusiasm with which your predecessors in the Home Office
introduced them. Perhaps you could explain what is going on.
Mr.
Hanson:
Clause 12 does not relate to IPPs. We are
currently considering what we do with IPPs, but the clause does not
relate to them.
Mr.
Hanson:
Clause 12 relates to indeterminate sentences,
and we are considering how to ensure that there is judicial discretion
in particularly serious cases and looking at sentencing options in
relation to that. It follows on from a number of difficult cases that
have occurred recently, such as the Sweeney case in south
Wales.
Q
15
Mr.
Garnier:
Are you suggesting that clause 12 introduces
greater judicial discretion, rather than removing
it?
Mr.
Hanson:
Yes. The purpose of clause 12 is that, in
extremely serious cases, the judiciary could examine the sentence
andafter looking at potential discounts for guilty pleas, time
spent on remand and automatic discountdecide whether the final
sentence that would be given was proportionate to the extreme level of
the crime committed. In the case of Sweeney, which occurred some months
ago in south Wales, clause 12 would have allowed the judge to decide
whether it was an extremely serious case and accordingly to consider
whether to increase the tariff to secure the above punishment and,
indeed, justice for the victim. Perhaps my colleague wishes to
speak
Christine
Stewart:
I think that that is right. The clause
affects the way in which the tariff for indeterminate
sentencesdiscretionary life sentencesis currently set.
At the moment, when the court imposes a discretionary life sentence, it
must decide what period to set for punishment and deterrence. The
remainder of the sentence is effectively determined by the Parole
Board.
In setting the
tariff, the court considers what sentence would have been imposed were
it to have imposed a determinate sentence and what period would then be
served by the offender. It would look at the overall headline sentence
and then halve it, because the offender would only serve half of that
sentence. A discretionary life sentence, by its very nature, belongs in
the category of particularly serious offences. Such a sentence could
not be imposed unless the courts decided that it was a very serious
offence. In those cases, when the courts look at setting the tariff,
they look at guidelines. For example, in something like rape, including
rape of a child, the maximum sentence in the range set out by
sentencing guidelines is 19 years, which would be about nine and a half
years.
In the case of
a discretionary life sentence, there could be circumstances that
suggest that the offence is so serious that the equivalent determinate
sentence does not go far enough to mark the seriousness. In those rare
cases, the court would have the discretion to say that if that is the
starting point, it would not half the sentenceit may reduce it
by a lesser proportion so that it could mark the seriousness of the
offence.
Mr.
Hanson:
The key thing is that we are trying to
increase judicial discretion to examine serious
cases.
Mr.
Hanson:
In overall terms, our assessment suggests
that the Bill will lead to a reduction in the prison population.
Certain measures within the legislation,
including this one, could potentially lead to an increase in sentences.
However, in overall terms, the measures would reduce the prison
population byfrom memorysome
1,300.
Mr.
Hanson:
No, in overall terms, if the measures were
introduced, our assessment is that the prison population would be
reduced. The notes for the Bill indicate that we expect about 25
additional places as a result of the application of this clause.
However, generally speaking, our assessment is that there will be a
reduction of approximately 1,300 prison places if all the measures are
implemented by both Houses. Each clause has different weights and
measures, but overall we expect a reduction of approximately
1,300.
Q
17
David
Howarth (Cambridge) (LD): I have a question on clause 10,
going back to the debate on the abolition of suspended sentences for
summary offences. I also have a point to make on clause 18 about the
relationship between the Parole Board and the Secretary of
State.
First, on
clause 10, how will the Government avoid the following problem if
suspended sentences are abolished for summary offences? The way in
which many sentencers think about the decision before them is to think
first, In or out? Is this an offence that requires imprisonment
or not? After they have thought In or out?,
they think, Suspend or not? That is the structure of
the decision. If that is how sentencers think, and if the ability to
suspend is taken away, they may decide in, and then,
with no powers to suspend, we therefore end up with more people in
prison. That is the problem. Perhaps you could answer that question and
then I will come back to my other
question.
Mr.
Hanson:
There is a difference of view on the likely
response to clause 10. This afternoon we will hear from the Magistrates
Association, which holds a similar view to that of the hon. Member for
Cambridge. Our view is that rather than up-tariffing sentences, the
measure will result in a down-tariffing to community sentences. Our
assessment is that there will be a saving of approximately 400 prison
places as a result of these measures. There is a genuine difference of
opinion. I can only give you the Governments view that faced
with that choice, sentencers will opt for a community sentence rather
than a custodial sentence. We may wish to explore as a Committee
whether sentencers share that viewI suspect that the
Magistrates Association will notbut that is our judgment and we
must stick with it.
Q
18
David
Howarth:
Perhaps I should have declared an interest. My
wife is a magistrate and has been doing this kind of sentencing for a
long time. Magistrates are trained in particular ways to approach those
questions in particular ways, and perhaps that is where the Government
need to look for the solution on how magistrates are asked to approach
sentencing.
Clause 18
abolishes the requirement for the Secretary of State to receive a
recommendation from the Parole Board before recalling a prisoner who is
subject to a life sentence. At the moment the Secretary of State can
only act without the Parole Boards involvement if it is in the
public interest to recall the offender before the Parole Board can make
a recommendationin other words in an emergency. That emergency
system will now be the overall way of doing things and the objection to
that is that it brings the Secretary of State far too much into the
sentencing process. The Government have already had severe legal
problems with the question of the independence of the Parole Board.
Will not clause 18 make that situation worse? Does it not in effect put
the Secretary of State in the position of a judge? It violates the
principle of the separation of
powers.
Mr.
Hanson:
I do not believe that it does. I am happy to
defend that point in Committee when the time comes.
Christine
Stewart:
It is worth making the point that recall
decisions in all other cases are currently taken directly by the
Secretary of State. Those provisions were introduced in the 2003 Act.
Clause 18 simply ensures that in even more serious cases, such as when
somebody is serving an indeterminate sentence and is likely to be
dangerous, the process can act quickly so that the offender can be
recalled. The Parole Board then focuses on the review of that decision
and takes decisions about release, but it is treating such offenders in
the same way as others. It would be slightly odd if it took longer to
recall an offender who has been given a life sentencean
indeterminate sentencethan to recall an offender who has been
given a determinate
sentence.
Q
19
David
Howarth:
I did not understand that. Is it not the case at
the moment that where the Parole Board cannot act quickly enough, the
Secretary of State already has the power to
recall?
12
noon
Christine
Stewart:
In exceptional cases, but leaving aside
indeterminate sentences. In other cases, the Parole Board does not have
a part to play in the recall decision, so it is odd that in serious
cases you have to go through the process of going to the Parole Board
first. The Parole Board thinks that its role should be determining
whether the offender is safe to be released, rather than taking a
position on recall.
Q
20
David
Howarth:
In the rest of the Bill, the Parole Board
effectively acts as an appeal court for the Secretary of State. That
does not appear in clause
18.
Christine
Stewart:
The Parole Board is the mechanism through
which the offender will go in order to get released. It is like an
appeal mechanism for all such
offenders.
Mr.
Hanson:
I should add that the Parole
Board welcomes the proposals to remove it from the decision-making
process for recall on the basis that it more clearly defines its role.
The Parole Boards welcome strengthens the legislative provision
before the Committee.
Q
21
Mr.
Burrowes:
Going back to clause 10, are you paying
lip service to the issue of judicial discretion? If you were to follow
the concerns about judicial discretion, would you not go back to the
situation that
applied before April 2005 when magistrates had discretion over
suspending a sentence, rather than pigeonholing them under this
provision and allowing them to suspend sentences only if the offence is
indictable either
way?
Mr.
Hanson:
These are matters for debate.
We have said in our proposals that we believe it is important to
clarify the matter. We try to ensure that we pass community sentences
rather than up-tariff suspended sentenceswith due respect to
magistratesbecause such sentences are often breached. That
ultimately means that people go to prison, and the potential for
preventing reoffending is that much more difficult. However, these are
matters for debate. I can only set out our position. We believe that it
is important that we try to encourage community sentences rather than
suspended sentences for such offences. In so doing, we are saving
prison places, and helping to prevent reoffending. Those are matters
that we will debate in due
course.
Christine
Stewart:
It is perhaps worth adding that about 40 per
cent. of suspended sentence orders have been imposed in respect of
summary only offences. That raises a question about their use because
such offences are less serious. We are saying that in 40 per cent. of
these cases the court has concluded that the custody threshold has been
crossed. As the Minister has already said, if you look at the custody
rates and trends, it looks as if many of these orders are being drawn
from the community order. They are offences which, in the past, would
have received a community
order.
Q
22
Mr.
Burrowes:
Because the Government have directed that a much
more firm line be taken on the breaching of community of
orders?
Christine
Stewart:
No. This is a decision that the court is
taking about whether, in this particular case with the offence that has
been committed, the offence is serious enough to have crossed the
custody threshold. Courts have to take that decision in order to impose
a suspended sentence order. Yet if you look back at the number of
people receiving such orders in comparison with the immediate custody
trendthat has not changedit would seem to suggest that
the custody threshold has dropped because these were people who were
getting custody and now they are getting suspended custody. However, it
has not dropped. Therefore, it suggests that the numbers are being
drawn from people who would otherwise have got community
orders.
Q
23
Mr.
Burrowes:
So the answer is to remove the power rather
than, as the Minister said, clarify the situation and look at training
on how magistrates apply their
powers?
Christine
Stewart:
That is what this provision is doing. It is
removing the power with summary-only
offences.
Mr.
Hanson:
The provision removes the power. There are
obviously always training issues involved as well. I have been quite
clear about
that.
Q
24
Mr.
Garnier:
Has anybody done any work on the point that
Christine Stewart was making? Are the people who have been getting
suspended custodial
sentences for summary offences persistent and repeat offenders? Has the
court had to say, We have tried non-custodial and community
sentences, but you keep on doing this. The only thing that we can do is
notch it up one more rung of the ladder. We will send you to prison,
but suspend the sentence. If you make a mistake again, you will go
inside. Most people who end up in front of the courts and are
given a custodial sentence, subject to the most serious offences, have
been through the courts before and the courts have decided that they
are running out of options and that custody is the next stop. A
suspended sentence may be the halfway point.
Mr.
Hanson:
As far as I am aware, we have not done
the detailed research on prolific offenders within that cohort, but I
am happy to look at that and to supply any information to
Mr. Garnier and the
Committee.
Q
25
Mr.
Garnier:
If you find that the evidence suggests that of
the 40 per cent. that Christine Stewart was talking about, most of
those are persistent offenders, albeit low level, and therefore
anti-socialthere is a victim to every offence, whether they are
direct or indirectwould you consider reintroducing the
magistrates power to suspend a custodial
sentence?
Mr.
Hanson:
I would not go as far as that. Those are
matters for debate. My view is that, even with prolific offenders,
short-term jail sentencesin terms of a suspended order, many
people would breach the sentence and end up with a short-term jail
sentenceare less effective than some of the stronger community
penalties. I would want to encourage that use; that is one of the
reasons that we have made the
change.
Mr.
Garnier:
One can give a suspended sentence with additional
requirements. I have found that a very useful sentence to give; it
tends to work if there are adequate numbers of probation officers to do
the supervising. It may be that the probation service is exhausted at
the moment. I fully appreciate that the Government is trying transfer
supervision to the third sector and the private sector, and I applaud
that in many respects, but given the current set-up, it seems that
there is value in a suspended sentence, even for summary offences in
the persistent offender
category.
Mr.
Hanson:
I think that we are trespassing into the
realm of debate on the issue, rather than simply addressing some of the
points. I am happy to engage in that, but you may wish to consider
moving on, Sir
Nicholas.
In response
to the hon. and learned Gentleman, we have increased dramatically the
level of investment in probation over the last 10 years and the new
Offender Management Act 2007 will give greater flexibility to the
probation service to draw in and add value from the private and
voluntary sectors. There is debate to be
had.
My assessment is
that the use of suspended sentence orders has led to an increase in
prison population and increased use of prison when those orders have
been breached. I would much prefer to have a more community-based
focus, which is why we have
introduced the provision. But I will supply the Committee with the
information that it has requested on prolific
offenders.
Q
26
Mr.
Virendra Sharma (Ealing, Southall) (Lab): Can the Minister
explain, as a former lawyer, in plain English, what is meant by clause
19(2) and proposed new section 46ZA, particularly proposed new
subsection
(2)?
Mr.
Hanson:
The purpose of clause 19, which amends the
position of prisoners released under the early removal scheme under the
Criminal Justice Act 1991, is threefold. First, it will extend the
scheme so as to make it available to offenders not liable for
deportation or removal for whatever reason, but who wish to resettle
permanently outside the UK. It gives provision for that. Secondly, it
streamlines the existing scheme by removing a number of restrictions on
eligibility, enabling more prisoners to benefit from the scheme as well
as making it easier to administer. Thirdly, it removes a potential
anomaly in the treatment of prisoners released under the 1991 Act and
those released under the Criminal Justice Act 2003. The proposals are
outlined in the explanatory notes, but if my hon. Friend wishes, I am
happy to give him a view on those by
correspondence.
The
Chairman:
Thank you, Minister. We now pass on to part 3:
Appeals. Mr. Garnier has the
questioning.
Q
27
Mr.
Garnier:
I think that I am right in saying that the
Secretary of State said on Second Reading that the Government was going
to reconsider the wording of clause 26. The Government will have
received, I would have thought, quite a number of letters or
communications expressing concern about the scheme behind part 3. Will
the Minister give us an indication of what she intends to replace the
clause
with?
Maria
Eagle:
Sir Nicholas, I will be handling this section
on behalf of the ministerial team, if that suits the
Committee.
I am sorry
not to be able to provide the rewritten clause, which would be the
ideal course, but the concern that was expressed during the
consultation and the Secretary of State for Justices
announcement on Second Reading that we were comprehensively reviewing
it has put me at a slight disadvantage.
[
Interruption.
]
Not in that respect. I knew
that he was going to do that, but obviously this consideration,
following the consultation and the impact that it has had on the
Governments thinking about this issue, has come later in the
day than the original drafting. Therefore, it is important that, when
we are replacing a drafting that is already there and that has caused a
lot of concern, we get it right.
The Government still do not
consider it right that the Court of Appeal should be obliged to quash
convictions in cases where there is no doubt as to the
appellants guilt, with certain caveats. As the Secretary of
State said on Second Reading, we want to ensure that the Court of
Appeal has a discretion to quash in a case where it is satisfied as to
the guilt of the appellant but where there has been serious misconduct
by the prosecuting authorities. That was one of the main concerns that
came through in the representations; the Mullen-type cases are the ones
that are often quoted.
We want to ensure that that
discretion is there, so that judges can make absolutely clear, by
quashing convictions even of people who are clearly guilty, their
abhorrence for extreme wrongdoing by the state in those sorts of
circumstances. That is certainly something that we wish to do, but we
believe that there are still examples where an appellant is guilty and
a conviction should not be quashed, for example in respect of purely
procedural matters.
An example that springs to mind
is Regina v. Coutts, which the hon. and learned Gentleman and
the lawyers on the Committee might be aware of. In that case, a chap
who was engaged in a violent and sexually related strangulation of a
young woman had his murder conviction quashed following the fact that
the jury was not given the opportunity to consider a manslaughter
verdict, even though no one, including the defence or the Court of
Appeal, which considered the case subsequently, thought it appropriate
that the jury should consider such a verdict.
So there is a narrow range of
potential cases where we believe that, if the defendants guilt
is not in doubt and there is not some wrongdoing or a serious breach of
convention rights, it should still be open to the Court of Appeal to
quash a conviction where guilt is not in
doubt.
Mr.
Garnier:
How are you going to measure that? How is the
Court of Appeal to make a decision about whether something is a mere
procedural misdemeanour as opposed to serious misconduct? Also, are you
not concerned that you are completely interfering with the way in which
the Court of Appeal currently works? I think that the Court of Appeal
has the power to use the provisoMr. Howarth tells me
that that is the technical termin certain circumstances. Am I
not right in thinking that the Court of Appeal can already take account
of mere procedural irregularities if there is a pressing case for
upholding the conviction? Are you not allowing your mind and your
policy to be directed by one or two emotionally charged cases, such as
the one that you mentioned a moment ago, whereas what we are trying to
do is to design good law for the entire appellate
system?
Maria
Eagle:
We certainly want to have good law for the
entire appellate system. We want to ensure that the Court of Appeal has
the discretion that it should rightly have. There is no doubt about the
fact that, following what the Secretary of State said on Second
Reading, we are seeking to give the Court more discretion in a wider
range of circumstances than the clause, as it is currently drafted,
does. To that extent, we have listened carefully to the representations
that we have
received.
In my
understanding, it is certainly the case that, under the current law,
convictions are quashed on the grounds of procedural irregularity even
where there is absolutely no doubt about
guilt.
Q
28
Mr.
Garnier:
Is it not the case that the Court of Appeal is
not interested simply in guilt, but also in justice? That is what you
should be interested in
too.
Maria
Eagle:
Yes, and we are. That is one of the reasons
why we are seeking to make the changes to the clause that the Secretary
of State has
indicated.
Maria
Eagle:
We do not have a draft that I can present to
the Committee today.
12.15
pm
Maria
Eagle:
We have drafts of drafts. Of course, there are
discussions and consultations going on about precisely how best to
achieve this aim, on the basis of what the Secretary of State has said.
I certainly hope to be able to provide a paper to indicate our thinking
early next week, in time for the consideration by the Committee of the
clause in question. I hope to produce a draft absolutely as soon as we
possibly can for the Committee to see. We are endeavouring to produce
it. Because this part of the Bill will be reached rather early in the
time that the Committee has for consideration, it might not be possible
to produce it for then, but there will be a paper that sets out in
detail the Governments thinking in draft, and we certainly hope
at the least to have produced it on Report. I understand that that is
not entirely satisfactory to hon. Members, but it is the best that I
can offer today. We are working very hard to ensure that we do
that.
Q
29
Mr.
Heath:
I have just a couple of questions. It seems a very
odd way of demonstrating the intention of giving additional discretion
to the Court of Appeal by introducing a clause which, as it originally
stated, clearly restricts the discretion of the Court of Appeal. How on
earth did we have the genesis of clause 26 in its current
form?
Maria
Eagle:
To be honest, I am not in a position to answer
that today, because I was not in the Department when it was devised, so
I do not have to hand the background knowledge to tell the hon.
Gentleman exactly how it was devised. He will be aware, as other hon.
Members will be, that concern was expressed, both inside and outside
the Department, about the general signal that convictions are being
quashed for very serious offences that have been admitted to, and where
guilty pleas have been given, or guilt has been found by the courts.
Appeals have then been held on what would appear to an ordinary member
of the public to be a simple procedural irregularity that does not even
necessarily imply wrongdoing, and then those people have had their
convictions completely quashed and quite often went free with
compensation.
That is
the concern that gave rise to the policy formulation, and we are all
aware of that. There was a consultation document that sought views. All
that I can say today is that, as far as I am aware, this document was
drawn up with a viewwhich the Secretary of State has since made
clear on Second Readingthat it is currently drawn too widely,
and that we will seek to change it. I will, as I have said, produce
some indication in much greater detail of our thinking in terms of the
drafting next week, and will produce the new draft as soon as I
possibly
can.
Q
30
Mr.
Heath:
May I put it to the Minister that the Bill is not
drawn too widely; it is simply wrong. It addresses an issue where the
Government have provided no evidence that there is an issue to address.
Can she provide the Committee with a list of the cases that gave the
cause for concern? She talks about Mullen-type cases, but I know of
only one Mullen-type
case, and that is Mullen. Presumably, the Department has a definitive
list of other cases that gave rise to concern. The Committee is
entitled to know what those cases were, and in what way the court
misinterpreted its present discretion, and
[
Interruption.
]and, as was said from a
sedentary position; we are all sedentary at the moment, but from a
particularly sedentary position by Mr.
Garnierexpressed its concern about any fettering of its
discretion. Can the Government prove that they have come up with some
other issues in the letter that has been sent to you, Sir Nicholas,
from the Government, that might represent useful additions to the terms
of the Court of Appeal, and which could replace this section? Until I
hear a rationale for clause 26 in its present form, I am not sure that
the Minister needs to make strenuous efforts to redraft it, because it
addresses an issue that very few of us see as a current problem. I hope
that if she is not ready in Committee to produce a new draft and table
it as an amendment in regular time, she will accept an amendment to
leave out clause 26 in Committee, because the present clause 26 is
simply unsatisfactory.
Maria
Eagle:
I do not think, after what the Secretary of
State said on Second Reading, that I am disagreeing with him about the
fact that the present clause 26 is unsatisfactory. I am happy to come
forward next week with some more information about what has given rise
to the concerns that ended up in the current draft of clause 26. It is
perfectly open to him to argue that the best way out of this issue is
to remove clause 26 altogether and to table any amendments that he
wishes.
For my part,
the Government are still seeking to make sure that, in a narrower range
of cases where it is absolutely clear that guilt is not in issue, those
who have been found guilty or admitted guilt, often to extremely
serious charges, are not allowed to go free simply because of a
procedural irregularity. Sometimes it is worse things, such as in the
Mullen-type case, and we want to ensure that they are not allowed to go
free on what most ordinary members of the public would see as a
technicality. While I do not argue that this will affect thousands of
cases per year, because it will not, the Government still believe that
there is a loophole to be closed. I am willing to come forward next
week with a little more detail in respect of the genesis of
this.
Q
31
Mr.
Heath:
How many people who admit guilt go before the Court
of Appeal, as a matter of
interest?
Maria
Eagle:
I cannot tell you that
today.
Q
32
David
Howarth:
I have one question. In the paper that you are
bringing forward, can we have the Governments view of the
present law and how that differs from the Court of Appeal having the
discretion that the Secretary of State said it should have?
Maria
Eagle:
Yes, I can undertake to include
that.
The
Chairman:
We move on to part 5, Other criminal
justice provisions. I know that David Burrowes has a question
to put to our
witnesses.
Q
33
Mr.
Burrowes:
In relation to the extension of conditional
cautions, could you respond to the concerns of magistrates and others
that effectively it is dumbing down justice and is avoiding the
disposal that can happen in court? If it is to look at conditions that
involve rehabilitation and stopping people reoffending, what will be
included in those provisions and are there the resources to deliver
it?
Maria
Eagle:
My colleague, David Hanson, is dealing with
some bits of part 5. He will be dealing with this
question.
Mr.
Hanson:
Again, Sir Nicholas, the aim of youth
conditional cautions is to reduce the number of the children being
taken to court for relatively low levels of offences by creating an
alternative, robust mechanism for bringing young offenders to account,
and to address some of the causes of their behaviour. The conditions
attached to the youth conditional caution must help the rehabilitation
of the offender. I am particularly keen to see safeguards to ensure
that the youth conditional caution is approved appropriately. In
general terms, we are trying to reduce the number of people who go into
custody by putting in place an alternative to custody which will
provide rehabilitation, introduce some effective measures and help to
prevent reoffending by young
people.
Christine
Stewart:
The safeguards are already set out in
schedule
11.
Christine
Stewart:
The circumstances in which the order may be
given are set out in the
Bill.
Christine
Stewart:
There will be guidance, obviously, but the
Bill sets out the circumstances in which a youth conditional caution
can be given and it includes the fact that there has to be sufficient
evidence to justify bringing a prosecution. If the caution is not
given, the young offender has to admit their guilt. Obviously, if
implemented, there will be further guidance to
prosecutors.
Q
37
Mr.
Burrowes:
But I am speaking of safeguards in relation to
the extent of the conditions and their restrictions on the activities
or liberty of the young offender. The application of conditional
cautions for older offenders is very much usedsome would say
abusedin relation to the extent of those conditions, which do
not necessarily deal with the concerns to rehabilitate that
offender.
Mr.
Hanson:
In relation to the adult order on which this
is based to a considerable extent, in practice for adults so far about
80 per cent. of conditional cautions
have been termed reparative and about 20 per cent. rehabilitative. We
listened carefully to what magistrates and others have said about the
punitive conditions. We want to look at how we can develop the
proposal for young people, looking at reparation as the key to
helping support them and preventing them
reoffending.
Q
38
Mr.
Burrowes:
Finally on that point, will there be extra
resources to deliver the rehabilitation and reparation that people
want, for example in relation to alcohol and drugs, which are often a
key factor in youth offending? Will resources be dedicated to deliver
that rehabilitation from drugs and alcohol?
Mr.
Hanson:
In all these measures we are assessing the
resource implications. They are additional powers; they will have an
impact on resource allocations. I am not in a position today to go into
detail on that matter but we do have some assessments and we are
working on them now, subject to the legislation being passed by both
Houses.
Mr.
Hanson:
I undertake at least to discuss with the
Committee some of the financial considerations that we are currently
undertaking when we come to the appropriate clauses. I am not in a
position to do that
today.
Q
40
Mr.
Garnier:
What practical consequences do you anticipate of
the increase in magistrates powers to try people in their
absence?
Maria
Eagle:
It falls to me to answer that question. The
practical consequences, hopefully, will be that more trials will go
ahead in the absence of defendants. If they think they can get away
with simply not turning up and that will delay the case, that will turn
out not to be so. It will send the stronger signal that there is a
presumption that trials should go ahead, whereas at present there is a
discretion that many magistrates would exercise. Our purpose is simply
to send a stronger signal that not turning up is not a way to delay
settlement of the casewith appropriate safeguards, which we
hope are there.
Q
41
Mr.
Garnier:
There is clearly a power, which is on page 37 of
the Bill, for the court to send somebody to prison if they are
convicted in their absence and the court can sentence the defendant to
custody. Normally, one would expect before custodyindeed,
before any sentencethat there would be a pre-sentence report.
You will not get one in this case, will
you?
Maria
Eagle:
The intention is that only defendants who have
been bailed to appear at trial, who are therefore aware of their
requirement to appear, would be liable to be sentenced to custody in
their absence. The clause also makes it clear that the defendant who is
sentenced to custody in their absence will be brought to the court
before being sent to prison, so there will be an opportunity at that
time for the defendant to explain their failure to appear and for any
further steps to be
taken.
Q
42
Mr.
Garnier:
I was making a point about pre-sentence reports.
The sentence will have been given. The defendant can then come and say
why he was not
there on the last occasion, but the sentence will have been made and the
court will be functus officio as far as that is concerned, therefore
subject to an appeal, at great expense and delay, and that is
thatoff he goes.
Maria
Eagle:
It seems that in some cases there would
already be reports that were commissioned
previously.
Maria
Eagle:
Because he has been bailed to appear to
be sentenced.
Q
44
Mr.
Garnier:
We are talking about trialstrial or
sentencing; I am not restricting myself to sentencing. A person is
tried in his absence; he is found guilty in his absence and is
sentenced in his absence. He is then sentenced to a term of custody
without a pre-sentence report. Eventually, he is brought to court,
where he is given an opportunity to explain his
absence
12.30
pm
Maria
Eagle:
He also has the opportunity to seek a
rehearing of the case if he believes that an injustice has been done
and there is a good reason why things should not proceed as they have
been
determined.
Q
45
Mr.
Garnier:
It will have some effect on the numbers in
custody, will it not? To accommodate the increasing number of people in
custody under the Governments current sentencing regime, they
have had to introduce early release from custody on licence, with which
you will be familiar. The plan is that, during the 12 months from June
2007, 25,500 offenders will be released early from prison to reduce the
net prison population by about 1,500 to
2,500.
A number of the
provisions in the Bill are calculated toI use that in the
proper sense of the word, rather than to mean intended
toincrease the prison population and create difficulties for
prison capacity. Perhaps the Minister of State can help you on this,
but do you have any plans to increase the 18-day early release period
to deal with some of the prison overcrowding issues that will flow
inevitably from several provisions of the
Bill?
Maria
Eagle:
We are dealing with the Bill and it is
absolutely clear, as David Hanson said in answer to earlier questions,
that some of its provisions will tend to create a small increase in the
number of people imprisoned. We have worked out, through the work of
the Department and its officials, that other provisions will cause a
reduction. Overall, the impact of the Bill will be a fall of about
1,300 in the number of prison places
filled.
Q
46
Mr.
Garnier:
We have not seen a net fall in the prison
population since ECL was introduced, and about 6,000 people have been
released so far on ECL. It is not doing the job. Court cells and prison
cells are continuing to be used. Do you have any plans to increase the
18-day
period?
Maria
Eagle:
This clause of the Bill is not
about
Maria
Eagle:
This Bill is not
about[
Interruption.
]
The
Chairman:
Order. Will the hon. and learned Gentleman
please ask the Minister the question
again?
Q
47
Mr.
Garnier:
Thank you, Sir Nicholas. A number of the
provisions of the Bill are bound to increase the prison population. The
prison population has not been reduced as a result of the introduction
of ECL with an 18-day early release. I am asking you whether you now
have plans to increase the 18-day period for early release to something
longer than
that.
Maria
Eagle:
Perhaps my colleague can answer that question,
given that he handles the
issue.
Mr.
Hanson:
The first point to mention is that our
overall assessment is an approximate 1,300 reduction in places filled,
if all the Bills measures are passed in their current form.
That there will be a reduction is the key matter that the hon. and
learned Member for Harborough must recognise. There will be certain
spikes from certain clauses, but overall there will be a
reduction.
We have
introduced ECL on an 18-day basis to help to relieve some of the prison
pressures. We have taken that difficult decision. It was introduced as
a temporary measure. We shall be keeping it under review in all ways
and at the moment there are no immediate plans to increase the time
scale. The hon. and learned Gentleman will be aware that we now have a
large building programme, with additional places being put on stream
between now and Christmas, and between January and June of next year.
We anticipate, difficult though it is, that although the prison
population has increased, it is within striking distance of our
capacity, and we anticipate that we can manage it with the measures
that we have put into place. We keep everything under review at all
times.
Q
48
Mr.
Garnier:
Let me try again. Eighteen-day ECL has not
reduced the net prison population and indications are coming from your
Department that the court service will be required to make court cells
available. The police will, of course, continue under Operation
Safeguard to make available police station cells to accommodate people
who cannot fit into prison. I need to know from you whether your
statement that there will be no immediate decision to increase 18 days
to some higher number means not this week or not next week. I want to
know what immediate means. Clearly, you must have
thought about it because the real issue that is affecting our criminal
justice system day by day is the overcrowding of the custodial estate.
We both know
that.
Mr.
Hanson:
This does not relate directly to the Bill,
but I am happy to answer. We are keeping all options under
consideration at all times, because we want to see the Prison Service
estate managed properly. I am introducing new Bill provisions to bring
on stream new places between now and Christmas and between Christmas
and January. We have ECL, a temporary measure, the impact and necessity
of which we are reviewing weekly. We have had some difficulties over
the summer, partly because of things that were outside of our
controlfor example, the loss of accommodation in Gloucester due
to the floods and
the loss of accommodation in Maidstone due to Legionnaires
disease. Those difficult issues have caused additional
pressures.
I am
constantly, with my colleague, the Under-Secretary of State for
Justice, keeping under measure the level of the prison population and
considering taking whatever measures are appropriate to ensure that we
protect the public and keep supply accordingly. The building programme
that we are undertaking, the measures on supply that we have undertaken
and the issues that we might need to look at in the light of the Carter
report, which will come out towards the end of this year, will colour
the passage of the Bill in its later stages. We may need to consider
recommendations from the Carter report that might need legislative
proposals. If so, I will brief the Committee at the earliest
opportunity and ensure that any resolutions and proposals coming out of
that report are put to the Committee as part of an overall package to
protect the public and manage the prison
population.
Q
49
Mr.
Sharma:
My question is on clause 58, Extension of
powers of non-legal staff. I am aware that there are many
advocatespeople who have worked in the law centres and the
advice agencies have learned and picked up advocacy skills. However,
when we are talking about the designated caseworkers, what level of
qualification will be required and what skills and formal training will
they have before actually getting into that
position?
Maria
Eagle:
As Committee members will know, since 1988
designated caseworkers have been able to do certain types of work in
the magistrates courts. During my visits to courts, court officers and
all kinds of people who see the work that those caseworkers do tell me
that they perform very well. When visiting courts, I have had good
feedback about the work that they
do.
The provision will
enable designated caseworkers to do a much wider range of work than
they have been able to do, but under the supervision of an experienced
Crown prosecutors. There will be some training, as is given now, and
that is at the heart of this provision. Prior to making any appearances
or doing work in the courts, designated caseworkers undertake a
two-week course that is assessed independently by the college of law in
Nottingham. They also subsequently complete e-learning courses and have
at least 15 hours of continuing professional development per year to
keep their knowledge and skills up to date. It is intended that that
type of training should
continue.
The
proposals will extend the type of work that caseworkers can do in
magistrates courts to contested matters. That is the big change
contained in the clause. The Crown Prosecution Service and the
Department certainly intend to ensure that we provide sufficient
training, guidance and ongoing continuing
professional development to give confidence and ensure that the people
undertaking the higher level of work in the magistrates court are
properly able to do so and are properly
supervised.
The
Chairman:
We really must make progress now. Can we move to
part 6, Criminal law? Could I ask those who are going
to question our witnesses to be brief? Hopefully the
witnessesthe Ministers and their civil servantscan be
brief as
well.
Q
50
Harry
Cohen (Leyton and Wanstead) (Lab): In relation to the
offence of possession of a single extreme pornographic image, or it
could be more than a single image, what evidence do the Government have
to show that either watching it or participating in it is harmful to
adults? I am wondering that because, in August 2006, the Government
stated:
Given
the many different approaches to conducting the research and framing
the questions, as well as differences in the nature of the material
examined, we are unable, at present, to draw any definite conclusions
based on research as to the likely long term impact of this kind of
material on individuals generally, or on those who may already be
predisposed to violent or aberrant sexual behaviour.
The Government subsequently
produced a rapid evidence assessment in September of this year, long
after the Bill had been published and presumably intended to back it
up, which mentioned some increased risk. It is worrying that that was
produced so late in this context. In that document, however, the
Government stated:
The REA found no formal
research studies of the effects on those who participate in making
extreme
pornography.
Where is
the
evidence?
Maria
Eagle:
The evidence is contained in that rapid
evidence assessment which, although it did not find any formal research
studies on the effect on those who participate in making the extreme
pornography, did find that there were some harmful effects on some of
those who viewed it, particularly men who were predisposed to
aggression or had a history of sexual aggression. Therefore, the rapid
evidence assessment looked around all of the research that had been
done, rather than commissioning specific research to fill gaps in the
research, and it showed that there was cause to have concern in certain
circumstances for what is, no doubt, a smallish number of the
population who might be susceptible to their behaviour being affected
by viewing extreme pornography.
We must remember that when we
are talking about extreme pornography, we are talking about images at
the very top end of what most people would consider viewable. We are
not talking about the common or garden porn, of which there is much on
the internet and that it is perfectly lawful for people to possess or
make under current domestic law. The proposal would make it illegal to
download and possess images that it is already illegal to publish in
this country, rather than extend the definition of what ought to be
caught by the law.
The concern really arises from
the increasing trend over recent years that we should seek to prevent
harm to people, particularly children. We have changed the law in
recent years to deal with images that would be illegal if they were
published or made in this country but which now, because of changes in
technological capacity, can come into the country and be downloaded,
having been published elsewhere. Therefore, we are not seeking to
extend the current law or to change the level of porn that is allowed
to be
published and considered lawful. We are simply seeking to deal with the
technological impact that means that such material can now be
downloaded into ones own computer, despite the fact that it
would be illegal to publish or make it in this
country.
Q
51
Harry
Cohen:
The measure is limited to material of a sexual
nature, but some of those people who were used in the evidence that the
Government have given include those who could have got violent images
of a non-sexual nature, and those might have stimulated them to kill.
There are thousands and thousands of horror films that show people
being cut up, so why does this legislation concentrate on material of a
sexual
nature?
12.45
pm
Maria
Eagle:
The Government are concerned about all violent
imagery and there are legislative controls on violent as well as sexual
imagery through the Obscene Publications Act 1959. There are also
regulatory controls through the British Board of Film Classification
and the Advertising Standards Authority. There is regulatory and
legislative control of such images. There has been particular concern
about explicit and extreme pornographic material produced for the
purposes of sexual arousal that also includes real or very realistic
violence. That is one reason why the BBFC will not classify violent and
abusive material in the R18 category, which is reserved for
pornographic films. There is control in respect of this
issue.
In this offence
and this change to the law, we are seeking to catch the extreme end of
the spectrum of pornographic material. While there may be points of
difference on precisely where the line should be drawn, most members of
the Committee and most ordinary members of the public would see
necrophilia and bestiality as something that society ought to
disapprove of and to think about controlling images of. While there
might be points of difference about precisely where the line should be
drawn for some of the other imagery, this is a practical issue. I do
not think that too many members of the public would disapprove of our
attempt to catch the most extreme end of the
spectrum.
Q
52
Mr.
Heath:
My question is on a slightly different subject. I
assume that this is the correct time to make reference to the
Governments intention to insert a new clause and new schedule
as an amendment to section 327 of the Criminal Justice Act 2003. This
is what is sometimes referred to as Megans law or
Sarahs law, for which the enthusiasm of the Government waxes
and wanes. Is what the Ministers are introducing effectively a
Megans law or Sarahs law? Will it provide information,
on almost a free basis, on the whereabouts of convicted paedophiles in
a
community?
Mr.
Coaker:
This is a very important part of the Bill.
The Government have arrived at the proposals as the result of a huge
consultation with people on the one hand from childrens
charities, who did not want
anything that approached any sort of disclosure to the general public,
to people on the other side, who thought that there should be full and
open disclosure under any circumstances. With the support of
childrens charities and law enforcers, the Government have
reached a coalescing of opinion around the idea that, with some
controlled disclosure, you can defend the rights of individuals while
at the same time enhancing public protection. It will not be a
Megans law with automatic
disclosures.
Mr.
Coaker:
There is a presumption regarding the people
within the multi-agency public protection arrangements. If they believe
that it would enhance public protection to disclose to organisations
and people that there is a sex offender in their area, there is a
presumption that they will do so. There is a duty on them to consider
that. There is not a presumption that they automatically have to inform
people. If they decide not to do so, they must record that decision so
that they are accountable for it being made. That does not satisfy
people at the extremes, but in my view, and in the view of the majority
of the people who have supported this measure, from childrens
charities like the National Society for the Prevention of Cruelty to
Children on the one hand to Sara Payne on the other, it is a way of
moving the debate
forward.
Alongside
that particular arrangement, we are going to pilot
disclosuresthese will not form part of the Billwhere
individual people can register a child protection interest. Again, the
responsible authorities will have a duty to consider whether they
should disclose such information and whether doing so would be in the
interests of the child. I would suggest that this is an extremely
important area of the Bill. I look forward to hon. Members from all
sides contributing and adding to the debate. I know that hon. Members
sometimes question consultation, but this consultation took place over
almost a year. People started from polarised positions and we have now
arrived not at a compromise that is a fudge, but at one that allows us
to see how well this operates, and whether it enhances child
protection. If that is the case, we can learn from it and move
on.
The
Chairman:
We have just 10 minutes. David Burrowes and
Harry Cohen want to come in again, so if each of you could ask a very
short question one after the other and then the Minister can
respond.
Q
54
Mr.
Burrowes:
Can we have details of the proposals for the new
offence of inciting homophobic hatred, evidence of where the present
legislation is inadequate and details of how we will protect freedom of
speech? What will be criminalised and what will not
be?
Q
55
Harry
Cohen:
I want to ask about prostitution, perhaps with
relation to rehabilitation sessionsI think that magistrates can
order three sessions. There was an advert in The House Magazine
from the
organisation CHASTE, which suggested that the problem began with the
trafficking of women and said that the Swedish model has been a
success. Has the Home Office done any research on the Swedish model?
Maybe it is the men who should be sent to rehabilitation sessions, to
learn about trafficking
Mr.
Coaker:
I shall leave the point about homophobia to
Maria Eagle and I shall deal with the question on prostitution. The
proposals on prostitution in this legislation are very important. I
will say a little about themyou mentioned
rehabilitation.
The
Bill does two things of immense importance. First, it takes the term
common prostitute out of the law, which is something
that all the organisations which we work with have been very pleased
about, and something that in 2007 is a positive step forward. Secondly,
although soliciting and loitering remain offences, the inclusion of a
rehabilitative penalty in the Bill ensures that we have a measure that
we can use to help street workers to get out of the circumstances they
are in. Rather than fining street workers, or dealing with them in a
broad sense, we will try to look at their circumstances, their
situation in terms of employment, housing and all those other
thingsoften drug addictionand we will try and work with
them to do something about it.
We also want to tackle the
issue of demand. With respect to street workers, we have done a lot
with kerb-crawling campaigns. The Sexual Offences Act 2003 clarified
the law and raised the legal age from 16 to 18, making it an offence to
purchase sex with anybody under the age of 18.
Trafficking is a huge issue. I
have made this point time and time again: if somebody knowingly has sex
with a trafficked person, the trafficked person is not freely
consenting to that sexual act. In my view that is rape, and as many
people as possible should be charged with rape if they
knowinglyI include that wordhave sex with somebody who
is trafficked.
With
regard to the Swedish model, I am sure that all members of the
Committee know that it is an offence to pay for sex in Sweden. That was
introduced in 1999. The evidence is unclear as to whether that has led
to a drop in prostitution, or whether it has pushed it underground,
leading to an increase in off-street prostitution. We need more work to
be done on the matter to see whether we can learn anything from it.
However, one of the things that has happened has been an increase in
internet advertising to do with prostitution. That perhaps suggests
that the matter has simply been pushed underground. However, the
evidence is very patchy and it is difficult to get full information
about what the impact has been. I take the point. I can see you waving
at me, Sir Nicholas, and I will stop at this point. We must always look
at whether we can learn from examples from other countries. The
Government have made no decision about
that.
Maria
Eagle:
On the point about incitement to homophobic
hatred, we now have provision in law to outlaw incitement to hatred of
particular groups on the
grounds of race or religious belief. We believe that it is right to
extend that protection to people who are homosexualto make it
unlawful to incite hatred of people who are homosexual. Let me make it
clear that we do not intend to place too onerous a burden on freedom of
speech. We realise that we must have a balance between protecting
homosexual people from hate crime and freedom of expression. It is not
our purpose to try to interfere with people expounding or setting out
their own religious beliefs. It is not our intention to prohibit
discussion or debate about the perceived rights or wrongs of
homosexuality, or to stop comedians from making jokes, but it is our
intention to outlaw incitement to hatred. That is what the provision
will do. We will bring forward the draft provision in time for the
Committee to consider it and at that time it will be possible to have a
further debate about whether it is pitched correctly, or whether people
agree with how it is pitched.
The
Chairman:
Thank you. Could we move on quickly to the final
part that we will be able to cover in this sitting: part
8?
Mr.
Coaker:
It is me.
Q
56
Mr.
Garnier:
Thank you. Am I right in thinking that
applications for violent offender orders can only be made to the
magistrates court? [Interruption.] Yes. We are dealing with
essentially a criminal injunction to prevent, or to discourage, or to
deter an individual who comes within various qualifications from
committing particular offencesis that
right?
Mr.
Coaker:
It is not a criminal penalty, it is a civil
order.
Mr.
Coaker:
It is granted by the magistrates court in the
same way as magistrates courts grant other civil
orders.
Q
57
Mr.
Garnier:
Yes, they grant ASBOs and they may, presumably,
grant prevention of serious crime orders. Now is not the time to have a
philosophical discussion about the blurring of the division between the
criminal law and the civil
law.
Q
58
Mr.
Garnier:
Yes, exactly. What concerns me is that the
qualifying offences are manslaughter, soliciting murder, wounding with
intent to cause grievous bodily harm, malicious wounding, and attempted
murder or conspiracy to commit murder. Those are all quite serious
offences that would normally be dealt with by a senior Crown court
judge or a High Court judge in the criminal courts, and yet you think
that it is appropriate that such applications should be made to the
magistrates.
Mr.
Coaker:
We certainly do because the original
specified offences that the hon. and learned Member for Harborough has
referred to will have been dealt with by the criminal courts as
appropriate. We are talking about an individual who is post-conviction,
whose term of imprisonmenttheir licence periodhas come
to an end, and yet the assessment of the chief police officer
is that they are still a risk, notwithstanding the fact that they have
completed the sentences that the criminal courts have given them. In
those circumstances it would be appropriate for the chief police
officer to apply to the magistrates
court.
Q
59
Mr.
Garnier:
These individuals are subject to the criminal
law. The criminal law says that it is an offence to commit murder or to
solicit murder. Why is that not
adequate?
Mr.
Coaker:
Because we are seeking to prevent that. With
respect to the hon. and learned Gentleman, we are trying to use civil
orders to prevent future harm, whereas the debate between us is that he
would use the criminal law to deal with somebody who does something
wrong. We are trying to interdict into that period so that somebody
does not do something wrong in the first place, as well as using the
criminal law as a deterrent.
The
Chairman:
Order. Before I adjourn the Committee, may I, on
behalf of the Committee, thank all our witnesses for the courteous and
full way in which they have sought to deal with the questions put to
them by the Committee? Thank you very much.
It being One oclock,
The
C
hairman
adjourned the Committee
without Question put, pursuant to the Standing Order.
Adjourned till this day at
Four
oclock.
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