Clause
17
Further
review and release of prisoners after
recall
Amendment
made: No. 77, in clause 17, page 13, line 8, at end
insert—
‘( ) In consequence
of the amendments made by section 16 and this section, the heading to
section 256 becomes “Review by the
Board”.’.—[Mr.
Hanson.]
Clause
17, as amended,
ordered to
stand part of the
Bill.
Clause
18
Recall
of life prisoners: abolition of requirement for recommendation by
Parole
Board
Mr.
Garnier:
I beg to move amendment No. 86, in
clause 18, page 13, line 30, after
‘may,’, insert
‘with the
approval of the Lord Chief Justice or a judge designated by
him,’.
The
amendment would mean that the provision in subsection (2) would state
that the Secretary of State may, with the approval of the Lord Chief
Justice or a judge designated by him, in the case of any life prisoner
who has been released on licence, revoke his licence and recall him to
prison.
The heading of
clause 18—“Recall of life prisoners: abolition of
requirement for recommendation by Parole Board”—seems to
stand in contradistinction to clause 17, through which the Secretary of
State appears to be bending over backwards to refer matters to the
Parole Board. He seems to be going the other way with clause 18 and
taking away from the Parole Board any power to intervene in these
matters. I am not going to detain the Committee long on this amendment
because my argument broadly mirrors those that I made about the
constitutional propriety of allowing the Secretary of State to do
things within the sentencing system that should more properly be done
by independent judges or the Parole Board.
I understand the
Minister’s point about the work of the Parole Board. We all know
that it has had its budget slashed so that it has had to cut back on
face-to-face interviews in prisons with offenders wishing to apply for
release following consideration of their cases by the board. We all
know that the number of cases that it has to deal with on paper only is
growing. Although, to some extent, the Government have reversed the
mistake that they made in taking away the resources that allowed the
Parole Board to have more face-to-face interviews, the position is
still pretty parlous. However, all of those inefficiencies and mistakes
do not permit the Government to take unto their own hands the power
that they wish to have under clause
18.
As I said, I draw
a comparison between clauses 17 and 18 because the influences seem to
be going in different directions. Under clause 16, the Secretary of
State wants not only to decide for himself what goes on, but to have
the power to change the number of days of the automatic recall. I think
that the arguments have been adequately described both now and on
another occasion. I hope that the Minister can satisfy me that this
clause, if it is not amended, is a good one.
Mr.
Heath:
I rise briefly to agree entirely with the arguments
made by the hon. and learned Gentleman. The Minister said earlier that
he wanted the Parole Board to concentrate on the most serious cases.
Well, this is the most serious case in terms of a restriction in
liberty. This is the revocation of a licence given to a person under an
indeterminate sentence. It should have at least a degree of judicial
oversight. I believe that a judge should take the decision, but I am
prepared to accept a decision taken by the Lord Chancellor in
conjunction with a judge. I find it difficult to accept purely a
decision of the Executive effectively to deprive a person of his
liberty, sine die, on grounds given by an elected Minister, rather than
through a judicial process. I thus support the view expressed by the
hon. and learned
Gentleman.
Mr.
Hanson:
Again, I hope that there is an element of
commonality between both Front Benches in the sense that I, too, want
to ensure that the decisions taken are correct and proper, and that a
potential offender who will lose their liberty has the right to have
their case reviewed later. Under the clause, all recalled offenders are
entitled to be notified of the reasons for their recall and to see
material on which that recall decision is based. Their case will also
be referred to the independent Parole Board so that the recall can be
reviewed, and the Parole Board has the power to direct that such
prisoners are immediately
re-released.
The
question arising from the amendment is whether a Lord Chief Justice, or
a judge appointed by him, should authorise the recall of life-sentence
prisoners before that process occurs. In my opinion—I accept
that it is only my judgment—the possibility for that judicial
oversight before the recall occurs would cause delay and, perhaps, some
great difficulties in managing the system. It could also put the public
at risk.
Mr.
Garnier:
I would not prevent a potential offender from
being arrested and held in custody while the matter was considered, but
something more than simply the Secretary of State’s signature is
needed. We should bear in mind that the relevant person will not
actually be the Secretary of State. As in the old Home Office days, a
designated Minister in the Department will have responsibility for this
aspect of implementation. He or she will be advised by a host of
lawyers and civil servants, so the decision will be made deep in the
recesses of bureaucracy. The Minister will have to stand up and defend
this in Parliament if things go wrong, but this will be very much a
bureaucratic and administrative decision. We are moving the criminal
justice system further and further away from judicial oversight or
involvement.
Mr.
Hanson:
This might not be the hon. and learned
Gentleman’s intention, but I should be very interested to know
the basis on which a prisoner could be recalled and held in custody
while waiting for a judge to authorise that recall in the scenario that
he describes. We need to look at those issues, but he says that the
recall could be authorised, and an individual could be taken off the
streets, because they were a risk or had broken the terms of their
licence, and that they could be put in a police cell to await the
sitting of a High Court judge or the Lord Chief Justice to authorise
that recall to prison.
Under our current proposals,
that recall can occur. It is immediate. It removes the offender from
whatever place of safety they may be in, for the good of either the
public or themselves, and may relate to any offences that they might
have committed. It allows Parole Board oversight of the decision
subsequently.
4.45
pm
The hon. and
learned Gentleman’s amendment would include a provision, which
may be helpful or not, for the judiciary to examine the relevant
issues. However, such a procedure would be bureaucratic, slow and may
involve the judiciary having to sit at evenings, weekends or different
times of the week to have oversight to ensure that those recalls
occur—and recalls are often undertaken speedily. For those
reasons, I am happy to reflect on judicial involvement, because we can
always have discussions about such matters, but I am satisfied that
there is sufficient public safeguard for the public and the judicial
system in having the decision about the potentially recalled offender
overseen by the Parole Board, post recall
occurring.
Mr.
Heath:
Perhaps the Minister will remind the Committee what
the situation is now and whether the slowness or the bureaucratic
nature of the process has been regularly brought to his attention or to
that of the House. I am not aware that that has been a
problem.
Mr.
Hanson:
My point is that, under amendment No. 86, tabled
by the hon. and learned Member for Harborough, the Lord Chief Justice
or a judge appointed by the Secretary of State, would be required to
authorise the recall of life sentence
prisoners.
Mr.
Heath:
At the moment, it is a Parole Board recommendation:
first the person is arrested, then there is a recommendation from the
Parole Board to the Secretary of State, who makes a decision. It is
hard to see that there would be an extended process beyond what
currently
happens.
Mr.
Hanson:
Most recalls are already undertaken using
emergency powers. My assessment—again, this a matter of
judgment—is that the proposal for the Lord Chief Justice or a
judge appointed to authorise the recall of life sentence prisoners
would inevitably mean delay and additional work for the courts and,
potentially, no swift return of dangerous, violent prisoners to
complete their sentences if their behaviour caused concern. I am making
that judgment and simply saying to the Committee that safeguards are in
place. On that basis, I ask the hon. and learned Gentleman to ask leave
to withdraw his
amendment.
Mr.
Garnier:
I shall put the Minister out of his misery: I
will ask the Committee’s leave to withdraw my amendment, but I
want to ask him a question. First, he reckons that we are talking about
some 4,500 likely offenders a year being recalled for breaching their
licences, which is fewer than the number who apply to the Parole Board
for early release from prison on
licence.
Secondly,
judges like to get a good night’s sleep, just like anybody else,
but I assure the Minister that judges are available 24 hours a day, in
the criminal and civil jurisdictions, to deal with cases that need to
be dealt with immediately as a matter of urgency. They can be
got out of bed, contacted via the telephone and got off the golf course,
if necessary, to reach a decision that they have to take, so we need
not worry too much about their being disturbed in that sense. However,
we do need to worry about Ministers encroaching on the powers of the
criminal justice system beyond their constitutional rights as elected
Ministers. Although we do not have a formal constitution—our
constitution is not written in one document, but in lots of different
places and in various conventions, and so forth—we understand
the separation of
powers. I accept that,
very often, for reasons of convenience, be it administrative, executive
or otherwise, the boundaries between the Executive and the judiciary
and the legislature are blurred. However, every now and then we ought
to recognise that those separations exist for a purpose: to protect us,
to enhance the rule of law and to control the Government, otherwise we
are wasting our time. I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
18 ordered to stand part of the
Bill.
Clauses
19 and 20 ordered to stand part of the
Bill.
Mr.
Garnier:
On a point of order, Mr. Cook. I want
to make a suggestion now so that you have a while to consider it before
reaching a decision. Government new clause 29 appears on the amendment
paper for consideration under clause 26. However, new clause 28, which
deals with the powers of the Court of Appeal criminal division, is not
grouped with amendments under clause 26. Presumably, it will be dealt
with separately after clause 129 as one of the new clauses listed on
page 3 of the amendment paper. It is entirely a matter for you,
Mr. Cook, but you might find it more convenient to have the
new clause 28 debate, which fits in with clause 26, when we discuss
that clause rather than at the end. I simply make that suggestion and
invite your opinion on it in due course.
The
Chairman:
That is a fair point. Thank you for that
guidance. Bearing in mind the progress that we have not made today,
that might be a question for another Chairman at our next sitting. The
much more realistic point is that we could do what the hon. and learned
Gentleman requests if the Committee were of a mind to agree to it, but
at the moment it is questionable whether the Minister has papers
prepared that far forward. We do not need to come to that proposal yet,
just to be aware that it may transpire.
Clause
21
Referral orders: referral
conditions
Mr.
Hanson:
I beg to move amendment No. 21, in
clause 21, page 16, line 19, leave
out from ‘been’ to ‘but’ in line 21 and
insert
‘dealt with by such a court for any
offence other than the offence and any connected offence on only one
previous
occasion’.
The
Chairman:
With this it will be convenient to discuss the
following amendments:
No. 140, in
clause 21, page 16, line 19, leave
out
‘of only one offence other than
the’
and
insert
‘on only one
occasion for
an’.
No. 141,
in
clause 21, page 16, line 21, leave
out from ‘offence’ to end of line 22 and insert ‘;
or
(iii) if they have previously been
referred to a youth offender panel under section 16 above, a further
referral has been recommended
by—
(a) a member of a
youth offending team,
(b) an
officer of a local probation team,
or
(c) a social worker of a
local
authority.’.
Mr.
Hanson:
I hope this will not take too long, Mr.
Cook. The amendment tabled by the hon. and learned Member for
Harborough has ably anticipated mine. I hope that Government amendment
No. 21 provides the clarification that his amendment seeks, namely that
an offender may be given a referral order if he has previously been
convicted on one occasion. It is the case that offenders are often
convicted on one occasion for more than one offence and we do not wish
to rule out such cases. I hope that there will be agreement across the
Committee to the amendment.
Mr.
David Burrowes (Enfield, Southgate) (Con): I am grateful
for the Minister’s acknowledgement of our foresight and
diligence in tabling the amendment, which has been followed dutifully
by the Government, as in other policy areas. I do not wish to split
hairs on amendments Nos. 21 and 140, which are very similar, and
although ours is clearer and simpler, I would not wish to divide the
Committee on the
words.
Amendment
No. 141 takes things a stage further. It does not deal just with the
issue that was the subject of the previous amendments in allowing the
flexibility and extension of referral orders to cover those cases when
a defendant has been convicted on a previous occasion. We seek to allow
a situation where, with a defendant who has had a referral order made
against him in respect of a previous conviction, the court is enabled
to decide in the particular circumstances whether to extend a further
referral order. That often occurs in the youth courts where, sadly,
referral orders are sometimes not implemented for weeks or months after
the first visit with the youth offending team outside court and the
defendant can commit another offence and come back before the court.
The court is often proscribed from allowing a further referral order to
be imposed even though the intent behind the order might
work.
There are cases
where it would be thoroughly inappropriate to impose another referral
order: the defendant has had their chance to be diverted away from the
criminal justice system and they should not have an additional
opportunity, but there are instances where a defendant has committed
another minor offence or one unrelated to the original one that was
subject to the referral order.
Maybe there are circumstances
where the referral order has not had its true impact on the defendant
for reasons that may not be their fault, where it should be open to the
court to have the flexibility to impose an additional referral order
or, indeed, an extension. Amendment No. 141 seeks to provide for that
and allow the insertion of an extra subsection to say that:
“(iii) if they have previously been
referred to a youth offender panel under section 16 above, a further
referral has been recommended
by—
(a) a
member of a youth offending
team,
(b) an officer
of a local probation team,
or
(c) a social worker
of a local authority.”
In
those circumstances, given the intention in the clause to extend the
flexibility and applicability of referral orders, I would like to move
amendment No.
141.
Mr.
Hanson:
Amendment No. 141 would allow, as the hon. Member
for Enfield, Southgate has just indicated, the award of a second
referral order, if that has been recommended by the youth offending
team, an officer of the probation team, or a social worker from a local
authority.
I do not
wish to see referral orders used for a second time, for reasons that I
shall outline to him. If a young person has reoffended, they have
failed the referral process and not taken the opportunity that has been
given to them to correct their behaviour at the first referral order.
The referral order principle works on the basis of restorative justice,
with the offender being made to face up to the effect that their
offence has on others, taking responsibility for their actions, and
making restoration to their victims. We have deliberately designed the
sentence to be targeted at those who receive a court sentence for the
first time, where they plead guilty. Pleading guilty demonstrates an
acknowledgement of the events and is an indicator that the young person
is suitable for the restorative justice approach, in terms of facing up
to their offences and talking to their
victims.
We are
extending the referral order to be available on second conviction, if
not used previously, because those people have not had the opportunity
to undergo the referral process. I must say to the hon. Gentleman that
the purpose of the youth rehabilitation order that we have put in place
is, under the terms of the Bill, the next stage in relation to a failed
referral order, and I ask him to reflect on that and to withdraw his
amendments, and I ask the Committee to accept the Government
amendment.
Mr.
Burrowes:
I ask the Minister to reflect on the particular
instance where, in a sense, the referral order has not failed, albeit
that the defendant has committed a further
offence.
I can think
of a number of circumstances where the referral order has not had any
real impact beyond the first meeting at court, there has been no real
implementation and the restorative appointments have not taken place.
In a sense, the failure of the order has not necessarily been the fault
of the defendant, when it is subject to the recommendation of the very
people who perhaps know best: the youth offending team, the local
probation team or a social worker. The point of the amendment was to
allow flexibility to the court, so I would like the Minister to
consider such exceptional examples where a referral order before the
court has not necessarily totally failed, because it has not really
started. The amendment would allow flexibility in those circumstances
even though a further offence has been committed.
Given that the Minister is
willing, by implication, within the clause, to give a second
opportunity to those who have previously been convicted to be diverted
from the system, the amendment could extend a second opportunity to
those in respect of whom the referral order has not had its full
impact. I do not wish to press the amendment to a vote, but ask the
Minister to reflect on the
matter.
5
pm
The
Chairman:
That amendment has not been moved
formally.
Mr.
Burrowes:
On a point of order, Mr. Cook. I
recall formally moving the
amendment.
The
Chairman:
No, the debate was on Government amendment No.
21 and we were considering the amendments Nos. 140 and 141
incidentally.
Amendment
agreed
to.
Question
proposed, That the clause stand part of the
Bill.
The
Chairman:
With this it will be convenient to discuss the
following: New clause 7— Sentencing of young
offenders—
‘(1) Section
16 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (duty
and power to refer certain young offenders to youth offender panels) is
amended as follows.
(2) Omit
subsection (2).
(3) In
subsection (6) omit “(2)
or”.
(4) In consequence
of the amendments made by this section, the heading to section 16
becomes “Power to refer certain young offenders to youth
offender panels”.
(5)
Section 17 of that Act (the referral conditions) is amended as
follows.
(6) In subsection
(1)—
(a) for
“16(2)” substitute “16(3)”,
and
(b) for
“compulsory” substitute
“discretionary”.
(7)
In subsection (1A) after “conditions”, insert
“also”.
(8) In
subsection (3)—
(a) omit
“the compulsory referral conditions or”,
and
(b) for “16(2) or
(3) above (as the case may be)” substitute “16(3)
above”.
(9) In section
19 of that Act (making of referral orders: effect on court’s
other sentencing powers) omit subsection
(7).’.
New
clause 15—Extension of a referral
order—
‘(1) Schedule 1
to the Powers of Criminal Courts (Sentencing) Act 2000 is amended as
follows.
(2) In paragraph 5(1)
for “power” substitute
“powers”.
(3) For
paragraph 5(2)
substitute—
“(2)
Those powers are the powers to revoke the referral order (or each of
the referral orders) or extend it by up to 3
months.”.
(4) In
paragraph 5(5) for “so dealing with the offender”
substitute “revoking an order for an offence specified in
sub-paragraph (4).”.
(5)
In paragraph 5(6) after “The appropriate court may not exercise
the” insert
“revocation”.’.
Mr.
Burrowes:
The intent of the referral orders is primarily
to divert young offenders from the criminal justice system and that is
welcome. If they are fully implemented and funded, including all of the
restorative
elements and the whole package, they will work. Moving young offenders
away from the criminal justice system must be to everyone’s
benefit.
There is a
concern that there should be appropriate flexibility, as proposed in
new clauses 7 and 15. New clause 7 would substitute for the compulsory
element within the referral orders the discretion that was sought in
the evidence sessions by the Magistrates Association, which said that,
particularly in relation to high-end offences, it would like the
flexibility not to use referral orders. That is not proposed in the
Bill.
Currently, a
referral order must be given for the first offence when an offender
pleads guilty and the offence is imprisonable. The only alternative
that applies to very serious offences is custody. That is the concern.
There are cases of robbery where the term is not sufficient to warrant
being referred to the Crown court. There are offences of serious sexual
assault that could be determined to come within the youth court
jurisdiction. When dealing with a defendant who has no previous
convictions and who pleads guilty at the first opportunity for such
serious high-end offences, the courts do not have the discretion to
decide whether to propose a
referral.
The courts
are often left in the invidious position of having to decide whether to
impose a referral order or a custodial sentence. They may be reluctant
to impose a custodial sentence and want the discretion to impose a
substantial community order. That is not available to them under the
Bill. The flexibility that magistrates would properly want when dealing
with that high-end penalty is not available. These new clauses would
provide that necessary discretion to enable magistrates to deal with
penalties in an appropriate manner, particularly for serious crimes.
That flexibility would avoid the inevitable step that we have talked
about in earlier debates of an increase in the population of young
offenders in detention. The new clauses would allow the magistrates
another weapon in their armoury to stop the defendant reoffending,
whereas custodial sentences often do not have that effect. I invite the
Minister to consider them and the point about flexibility that the
Magistrates Association quite properly made.
I hope that
the Minister will also deal with the practical aspect of referral
orders. I have said previously that there is concern that many referral
orders are not implemented in a timely fashion, and that the additional
referral orders that will be an inevitable result of the Bill will lead
to costs. The impact assessment states that those costs will be offset
by a reduction in reconviction rates, but will the Minister provide
more details of that assumption? There will inevitably be costs, and
the concern is that they need to be properly built into the system to
enable youth offending teams fully to implement referral
orders.
I understand
that the Youth Justice Board is considering referral orders in relation
to the roll-out of restorative programmes, which will all cost money if
we are to give true effect to referral orders. There is concern that
that must come to fruition—the additional referral orders need
to be properly funded. Another matter on which a good opportunity is
often not taken is rehabilitation for those with drug and alcohol
addictions. Often, developing a youth offender from the criminal
justice system requires proactive and immediate attention and treatment
for
such addictions. That does not happen, because of the paucity of
adolescent services. It is important that the Government take that on
board if they want to give true effect to the good intentions behind
referral
orders.
Mr.
Hanson:
I thank the hon. Member for Enfield,
Southgate for his new clauses. I shall deal first with new clause 15,
which would provide the courts with a power to extend a referral order
for up to three months. There is some merit in that proposal, and I am
happy to examine it in detail. As I have said, an order should be
subject to a maximum 12-month time limit, but within that there is the
potential for it to be extended for up to three months for failure to
comply or when it is impractical for the child or young person to
comply. There is an argument, and the hon. Gentleman has made it, that
there should be some flexibility, particularly if circumstances are
beyond the control of the young person, to prevent them from completing
the contract in the initial term. I ask the hon. Gentleman not to press
new clause 15 on the basis that I shall consider it in detail and see
whether we can bring forward something that meets his objective
positively.
New clause
7, as the hon. Gentleman said, addresses a concern
raised in oral evidence by the Magistrates Association, which was
concerned about the compulsory conditions applying to referral orders.
Its view was that, for more serious first offences to which the
defendant pleads guilty, it should be open to the court to give a youth
rehabilitation order with robust requirements rather than make the
required referral order. The hon. Gentleman eloquently put that case
again.
When a referral
order is made, the young offender must agree a programme of action with
a youth offender panel to form a youth offender contract, which may
include such things as paying compensation, attending mediation
sessions with a victim, carrying out unpaid work or participating in
specified activities such as those that assist a young person to deal
with drug or alcohol abuse. In short, the referral order is in place to
deliver a restorative justice approach through a consideration of not
just the causes of difficulties but how reparations can be made and
mediation undertaken, based on offenders engaging with the court
process for the first time. Restorative justice can be effective for
young offenders who have not previously thought about the impact of
their offending behaviour on others and the communities in which they
live and work. I strongly appreciate that courts do not like to have
their discretion fettered, but I believe that we have a strong case for
the referral order to be maintained in its current position. It
currently has the lowest reconviction rate of all juvenile sentences,
at just over 44 per cent. It is an effective use of reparation for the
prevention of reoffending, and I want to continue to provide that
option for all those who qualify.
The terms of
the contract can be robust and the penal power of that is strong. There
is an opportunity for the case to be referred back to court for
resentencing if the young offender fails to comply, but I believe that
it is currently in the right place, and I support the position of the
referral order on the face of the Bill. With those few comments, I hope
that the hon. Member for Enfield, Southgate can accept my kind offer to
look at new
clause 15, but I ask him to withdraw both new clauses for the reasons
that I have
outlined.
Mr.
Burrowes:
I am grateful to the Minister for his kind
offer—I am always interested in considering kind offers from
anyone, but whether I accept them is another issue. In relation to new
clause 15, I am certainly willing to accept the offer to deal with the
issue of flexibility. In a sense, that is the second bite of the cherry
and relates to the wonderful amendment No. 141, which I was not able to
move. The new clause provides the opportunity for flexibility in those
instances when the referral order has not been able to be properly
implemented. Therefore, I welcome the Minister’s indication and,
in that regard, do not wish to press the new clause to a
vote.
I would like
the Minister to reflect further on new clause 7 and on the
circumstances that the magistrates have outlined to us in Committee and
which others have seen in many youth courts. Magistrates often feel
obliged, given the seriousness of an offence, to move towards the
custodial option. Given the concern about the ever-rising prison
population, it is important to take seriously magistrates’
concerns that these offences are dealt with more often than not by way
of a custodial option and not a referral order—we have already
looked at ways by which that could be stemmed and the high rate of
custodial sentences can be
reduced
In a
magistrate’s mind, it is not in the interests of justice or the
public to deal a referral order for a serious case, such as sexual
assault or robbery, through a referral order; if the defendant complies
with that order fully, their conviction would effectively be spent and
it will not be on the record. As far as the magistrates will be
concerned, the defendant would basically be getting off for a serious
offence. They often consider such an offence differently from those
less serious cases that can properly be dealt with through a referral
order. I do not wish to press the new clause to a vote or take any more
time, but I invite the Minister to look at those particular
circumstances and how those concerns can be alleviated.
Question put and agreed
to.
Clause 21,
as amended, ordered to stand part of the
Bill.
| 
