Criminal Justice and Immigration Bill

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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.
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.
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