Q
164Mrs.
Moon: I have two separate questions. The first is for the
NSPCC and Barnardo’s, and it relates to the deaths of children
and the capacity for coroners to exclude the media from inquests.
Parents have complained to me that if a child commits a criminal
offence, the
details are confidential, but if they take their own life, their history
and death are exposed in the media. The parents felt that there is an
injustice in that. What is your
view? Barbara
Esam: The NSPCC shares that concern. We think that
families have a right to privacy in such situations. We would like the
family at least to be asked what their position is on it and to be
given an opportunity to make representations to ensure that their
details are kept
private. Martin
Narey: I am afraid that, once again, I do not know
enough about the issue to comment on it. It is not an issue on which we
are lobbying. Indeed, we are not lobbying on the Bill at
all.
Q
165Mrs.
Moon: My second question is for the IWF and relates to
encouraging or assisting suicides. You have some experience in
controlling images that appear on the internet and are one of the few
organisations dealing with matters of control of information and data
on the internet. What is your view on the legislation and how do you
see it being best
implemented? Peter
Robbins: I have not studied the provisions in the
Bill that relate to suicide, because I listen to other organisations,
such as Papyrus and the Samaritans, which have done a considerable
amount of work in that area. I take an interest in the work that they
do, but it is not part of our remit, which is to deal with child sexual
abuse content and obscene content. Suicide websites, however, do come
across our radar, as indeed do many other topics that relate to
illegality in connection with anorexia, bulimia and other things. We
have tried to keep a focus around illegality. We do not deal with
inappropriate content as such—our remit is the
illegal.
In
terms of suicide websites, if there are such things—I have not
looked into that detail to be able to sit here and say that they would
fail the test—but speaking as a representative of a notice and
take-down organisation, we are not sure that there are any of those
websites in the UK. If there were, they would be something that
internet service providers would actually take a view on and remove
anyway. If they are abroad, and I am told there may be some, then it
would be important to have a partnership with a body we could refer
things on to. We cannot issue notices to take down content in other
countries’
jurisdictions. It
would be important, as it is with indecent images of children, that we
have hotlines in other countries which would mirror our legislation and
our activities, so we could have that content tackled, either by police
investigation or notice and take-down to the internet service provider
or the service provider. The issue of suicide websites and the question
whether the law is correct or needs to be clarified are important, but
I would say there are difficulties in terms of how you deal with it
outside the
UK.
Q
166Mr.
Garnier: I wonder whether I could ask Mr. Narey
about the sentencing questions, both from your current position within
Barnardo’s and also from your earlier experiences as someone who
played an important role within the Prison Service. I am concerned by
the clauses in the Bill which deal with the setting up of the
sentencing council. You will perhaps realise that the sentencing
council guidelines must be followed, if this Bill goes through as
currently drafted.
Clause 107
states: “Every
court must, in sentencing an offender, follow any sentencing guidelines
which are relevant to the offender’s case, and must, in
exercising any other function relating to the sentencing of offenders,
follow any sentencing guidelines which are relevant to the exercise of
the
function”. There
is then a little let-out that
states: “unless
the court is satisfied that it would be contrary to the interests of
justice to do
so”. [Interruption.]
I am sure that the Minister can cross-examine once I have finished
asking these
questions. There
does not seem to be much discretion left there, but the position
becomes in my view, more worrying when one adds clause 107 to clause
109, which deals with “Resource implications of
guidelines”. We are told that the council has to publish draft
guidelines under the earlier clauses. As well as issuing other
documents, the council must publish a resource assessment in respect of
the guidelines, which will deal
with “the
demand for prison places, the resources required for probation
provision, and the resources required for the provision of youth
justice
services.” Presumably,
those resource implications and assessments are to be published for a
purpose, namely to influence the sentencer. Do you think that this is a
proper way to construct a sentencing regime, or are you concerned about
what impact the Bill, as drafted, will have in relation to the
sentencing
council? Martin
Narey: My understanding of the Bill and certainly,
the intention of the working party that made the recommendations to the
sentencing council, of which Mr. Howarth and I were both
members, was very clear. Discretion should be retained and judges, in
the interest of justice, should be able to depart from a guideline for
particular reasons. However, it was considered and agreed by the
working party that the guidelines should have rather more force than
the current guidelines for the sentencing guidelines council. The
provision of discretion was central to the working party’s
conclusions. On
the second point, about resource implications, while I very much
welcome the conclusions of the working party, when I was a civil
servant and advising various Home Secretaries, my advice was, and the
agreements made with the previous Lord Chief Justice were, that we
should go further to restrain the use of custody. That was not
necessarily to drive the prison population down, but to put the Prison
Service in a position in which it could reasonably plan for the decent
care and perhaps even rehabilitation of those in its care. Personally,
I regret that the new council will not have to take account of the
penal and probation resources at any one
time.
Q
167Mr.
Garnier: I think that you know this already, but let me
say in parenthesis that I think the purpose of prison should be not
only to lock someone up for the period of the sentence, but to reform,
to rehabilitate, to educate, to get people off drugs and all the other
positive things that do not seem to happen enough in the present
overcrowded prison estate. I was very fortunate that Mr.
Howarth came with Lord Justice Gage—I do not think that you were
able to come, Mr. Narey—to give a presentation to the
Opposition justice team last summer, which was very useful. Are you
saying that
what we now have in the Bill meets some of, but not all of, your hopes,
or does it contradict some of the things that you had hoped
for? Martin
Narey: The answer is that I think that it goes some
way towards what I would have preferred the working party to recommend.
I know your view on prisons, and I know that you consider
rehabilitation to be important. In my view, the reality is that many
people whom we send to prison go for such short periods that any form
of rehabilitation is impossible. There are others we send to prison
who, if we were using the place more coherently, would stay rather
longer to ensure that we had effected rehabilitation or at least a
reduction in dangerousness. I had hoped that the council might have
gone further and taken greater hold of those whom we send to prison, as
opposed to those whom we put on community
sentences.
Q
168Mr.
Garnier: Do you think that the resource assessments ought
to be studied more carefully by the Ministry of Justice than by
sentencers? It ought to provide the facilities to accommodate those who
need to go to prison and to provide the resources, through the
probation service and other community punishment sources, for those who
do not need to go.
Martin
Narey: I am sure that ex-colleagues in the Ministry
of Justice will study the resource assessments carefully. Rather than
the courts or the sentencing council simply telling the Government what
resources are needed—although they may still do it in future
years—I would prefer that in any one period they try to manage
within the current constraints of prison and probation places. Why we
ration almost every other public service, primarily health, but we have
no rationing of penal or probation resources has always puzzled me. The
result is that prisons are considerably less effective than they might
otherwise be.
Q
169Mr.
Garnier: I can see that. Are you therefore suggesting that
there could be circumstances in which in year X, because of resource
constraints, for example, defendants who might have been sent to prison
the year before would not be, not because the justice of the case does
not require it, but because there is simply no room in the prison
estate? The following year, by which time another few hundred places
might have been provided to the Prison Service or there was better
provision of community punishment systems, a defendant who committed
the same offence on broadly the same factual basis could go to prison,
because the estate was in a better position to receive that prisoner.
Are we not in danger of creating a form of inconsistency in
sentencing? Martin
Narey: I understand your concern, but I am confident,
from the tone of the report and everything that the chair of the
committee said that there is an absolute determination in every
individual case to ensure that the judge or magistrate is able to take
the decision and give the sentence that they feel is
appropriate. A
greater danger is that, if sentencing guidelines do not have to pay any
attention to the resources that the Government of the day decide to
dedicate to prisons or probation, there could be a significant
dislocation.
Q
170Mr.
Garnier: Let me give you a current example. I have been
told that magistrates in Staffordshire are not able to send defendants
on community sentence
programmes because they are full up. As a consequence, the magistrates
are sending to prison people who they believe ought not to go to
prison. They are sending people to prison for six-month sentences or
less when they would be better dealt with and more positively and
progressively dealt with outside prison and under the supervision of
the probation service. That is happening now. How do you think the Bill
will help to provide more
resources? Martin
Narey: I do not know whether it would be a matter of
providing more resources. I realise that this is politically difficult,
but I think that there is a good case for putting a limit on the amount
that we spend on prisons particularly, but also on probation. I am
genuinely staggered at that example. In my 23 years working with
offenders, I do not think that I have ever come across a situation in
which the court has given a more severe sentence because of capacity
problems. Many cases have gone the other way.
I
remind the Committee that, until 1982, a child of 17 or under could not
be sent to a detention centre unless there was a place. The clerk of
the court phoned a detention centre every day to ask whether there was
a place. If there was not, the court did something else. The world did
not come to an end. We just accepted that we should have a limit on the
number of children in custody. I would be delighted if we returned to
that
principle.
Q
171Mr.
Garnier: I am afraid that the Staffordshire example is a
true one. In my experience sitting as a recorder in Nottingham in the
summer of 2008, instead of starting their sentences at once, those
sentenced to community sentences occasionally had to wait for three or
four months before a place on a community punishment course became
available. That creates all sorts of difficulties and prevents the
offender from having the incentive to get on with work. One can
physically see when the prison estate is overcrowded, but not when the
community punishment system is overcrowded. That is the problem that we
face. Martin
Narey: The answer is that you must flex resources.
That is not for me any more; three or four years ago it would have
been. The head of the National Offender Management Service or the
Justice Secretary need to ensure that resources are redistributed, so
that there are extra facilities in the community sector. It is nonsense
to send anybody to prison who the court determines is suitable for a
community
penalty.
Q
172Mr.
George Howarth: I have a couple of quick points before I
get on to a slightly larger issue. Do you agree that the principle of
consistency is even more important when dealing with young people than
with older
offenders? Martin
Narey: I
agree.
Q
173Mr.
Howarth: Secondly, do you agree from your experience at
Barnardo’s and in previous incarnations that it is important to
have an element of predictability about not only the number of cases
going through, but the seriousness of those offences and the
sentences—whether community or custodial—that they are
likely to
attract? Martin
Narey: Accepting that you should always
allow significant discretion for individual cases, I agree with that,
too.
Q
174Mr.
Howarth: That leads me to a further point. Do you agree
with me that Mr. Garnier was wrong to dismiss as unimportant
the qualification that what happens must be in the interests of
justice? It is a very important qualification
indeed. Martin
Narey: Certainly, the working party saw it as such.
The working party was clear that there should be no restraint on an
individual judge or bench of magistrates in an individual
case.
Q
175Mr.
Howarth: Unless that was in the interests of
justice. Martin
Narey:
Yes.
Q
176Mr.
Howarth: Finally, can you confirm one of the conclusions
that we arrived at, which was that insufficient data are available at
the moment to enable the Ministry of Justice or anybody else to predict
with any certainty the correctional capacity, to use a phrase that my
ministerial colleague finds slightly ugly? Do you agree that there are
insufficient data to predict with any certainty what the capacity of
the Prison Service, the young offenders’ service, the probation
service or community sentences needs to be in 12 months’ time,
or two or three years’
time? Martin
Narey: The data are imperfect and I welcome the
commitment to improve the quality of data gathering, but I think that
we have sufficient data to make a reasonable fist of judging what will
be the outcome of certain sentencing guidelines. When I was a member
not of the working party, but of the original Sentencing Guidelines
Council—I am sorry, but technically, because I was a civil
servant, I was an observer on that council—with the help of
statisticians from the Home Office, it was able to adjust sentencing
guidelines to try to ensure that their consequences would be neutral in
terms of prison places. It might not always have got that right, but I
think that it got it reasonably correct, and it is better, in my view,
that it does that, rather than producing guidelines that bear no
relevance to the resources that the Government of the day are able to
dedicate to prison places, for
example.
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