Legal Aid, Sentencing and Punishment
of Offenders bill
The Committee consisted of the following Members:
Kate Emms, Committee Clerk
† attended the Committee
‘(2) A court shall have a duty to take all reasonable steps to ensure that the terms and requirements of the sentence are understood by the offender.’.
‘(ca) why it is giving a custodial sentence, if giving such a sentence,’.
‘(e) the effect of the sentence on any child or other dependant in the care of the offender where the sentence is—
(i) a custodial sentence,
(ii) a fine,
(iii) a community order.’.
‘(4) If the offender is not present when sentence is passed, subsection (3) takes effect as if the words “to the offender” were omitted.
(4A) The court must provide written versions of any statement given under subsection (2) and any explanation given under subsection (3).
(4B) Copies of the documents mentioned in subsection (4B) above must be given (if the relevant person is in court when sentence is passed) or sent by post (if the relevant person is not in court when sentence is passed) to—
(a) the offender;
(b) the offender’s legal representative;
(c) the victim(s) of the offence;
(d) family member(s) and/or representative(s) of the victim(s) of the offence;
(e) the Crown Prosecution Service;
(f) any co-defendant convicted in the case, whether or not at the same trial/hearing;
(g) the legal representative of any person in (vi) above;
(h) the probation service or, if the offender is under 18 years of age, the youth offending team;
(i) if the offender is under 18 years of age, the offender’s parent/guardian;
(j) representatives of the media.
(4C) The duty in subsection (4B) is subject to any reporting restrictions in force in the case.
(4D) Where the offender is aged under 18, no details tending to identify him may be included in the written reasons provided under subsection (4B)(j).’.
‘(4) A court must provide written versions of any statement given under subsection (3) to—
(a) the offender;
(b) the victim;
(c) if the offender is under 18 years of age, the offender’s parent/guardian;
(d) any co-defendant convicted in the case, whether or not at the same trial/hearing;
(e) the probation service or, if the offender is under 18 years of age, the youth offending team.’.
‘( ) Where the court imposes a sentence that may only be imposed in the offender’s case if the court is of the opinion mentioned in—
(a) section 148(1) of this Act (community sentence), or
(b) section 152(2) of this Act (discretionary custodial sentence),
the court must state why it is of that opinion.’.
‘A court passing sentence on an offender has the duty to consider the impact of the sentence on any child or other dependant in the care of the offender where the sentence is
(a) a custodial sentence,
(b) a fine,
(c) a community order.’.
Helen Goodman: It is a pleasure to see you in the Chair again, Mr Hollobone. The duty to give reasons for and to explain the effect of a sentence is extremely important. To help the Committee, I point out that I shall speak first to amendments 299, 300 and 302 and secondly to amendment 301 and new clause 9, which relates to dependants and children. Amendment 298 is technical.
The object of amendment 299 is to ensure that the offender understands the sentence. The object of amendment 300 is to explain why a custodial sentence is being given. The object of amendment 302 is to inform other key parties in the case. The clause is a much-weakened version of the pledge given by the Tory party in opposition, before the general election, to have transparent sentencing. I know that it considered maxi-min sentencing. I know that it wanted to make release halfway through a sentence
Of course, in examining these matters, the Government have understood that by and large the public simply do not understand why, if a person is sentenced to four years, they are spending only two years in prison. Until and unless we can make that clear to victims, we will not be able to make it clear to the public. That is why our amendments refer specifically to them.
Another problem is that the clause weakens the current obligations to explain the meaning of the sentence by giving the Lord Chancellor a blanket exceptions provision to exclude by order any crimes that he chooses. That point was made strongly in representations by Liberty and Justice, so I hope that the Minister can explain that weakening.
Amendment 299 is designed to ensure that the offender understands the sentence. Clearly, there is little point in sentencing someone if they do not understand what they have done wrong and what is to happen to them or what they must do as punishment and to rehabilitate themselves with society. What may seem like ordinary language to a judge or magistrate may not be clear to the offender. Our amendment is designed to improve the drafting. I will speak about several classes of offender who are particularly likely to have difficulty in understanding what is being said to them. We could have drafted a more complex amendment that referred to foreign languages, children’s particular needs and intellectual development, and the use of Braille, but I decided not to because the issues come down to one factor: the offender must understand what is going on.
We received strong representations from Mencap on the needs of people with learning disabilities. It said that a quarter of prisoners under 18 have learning disabilities or difficulties, and that their reoffending rate is 78%. That is 10 times the level of learning disabilities in the general population. The Prison Reform Trust has carried out a lot of research with that group, and wrote it up in a report, “No One Knows”, with some interesting examples.
Anna Soubry (Broxtowe) (Con): Perhaps the hon. Lady will forgive me if I have got this wrong, but all the people she is describing will have been represented by a solicitor and/or barrister. It is beholden on them and part of their duty when representing anyone to ensure that the client understands. In my experience, the one thing that every solicitor and barrister does is to make sure their client understands absolutely everything that
Helen Goodman: I know that the hon. Lady practised at the Bar, and having seen her perform in the House I am sure she was very effective, and that she gave her clients the quality of care that she is describing. I have no doubt about that, but I am sorry to tell her that research demonstrates that more than half of children who offend have speech, language or communication difficulties. That research was done in 2007. A more recent study in 2010 showed that 65% have language difficulties, and 20% of them were scored as being severely delayed. The Government believe that 23% of people have learning disabilities. The problem is that there is no systematic approach for screening and assessing such people. Sometimes, as the hon. Lady says, if they have a good lawyer it is fine, but sometimes it is not.
Mr Dave Watts (St Helens North) (Lab): I have no doubt that the solicitor or barrister will explain to their client exactly what is facing them and what the crime is, but the criminal must be able to take in the points made by their solicitor or barrister. Is that not the point?
Helen Goodman: That is exactly the point. That is why the voluntary sector surveys into people’s perceptions are significant, and why it is a problem that two thirds of those with learning disabilities say that they experience difficulties in the court. For example, they may have difficulty understanding words such as “breach”, which is not the sort of word that people in normal life think about. Hon. Members on the Government Benches, by and large, have benefited from an extremely good education and should pause to think what the criminal justice system is like for those who commonly go through it.
Mr Robert Buckland (South Swindon) (Con): The hon. Lady is highlighting a significant problem of speech, language and communication difficulty. I am vice-chair of the all-party group on speech and language difficulties, which recognises the alarming statistics that she has raised and has proposals for early intervention to diagnose those problems. On the court position and sentencing, however, clause 54 is helpful because it places a duty on the court to explain matters “in ordinary language.” For example, instead of referring to “your counsel”, the judge could say “your barrister”; instead of “mitigation”, the judge could use other words to explain proceedings to the defendant in ordinary language that they will understand. At the end of proceedings, the judge could make it clear to the defendant that their barrister will explain again the full effects of the sentence that has been passed, so that they have a full understanding. The problems that the hon. Lady rightly raises will be addressed by clause 54 and the arguments expressed in the debate.
Helen Goodman: I hear what the hon. Gentleman says, but after the Committee has finished its deliberations, I suggest that he has a conversation with his hon. Friend the Member for Blackpool North and Cleveleys (Paul Maynard) whom I have heard in the Chamber making precisely the point that I am making about the
That contentious subject obviously arouses passions among Conservative Members, so I shall move on to amendment 300. A custodial sentence is the most serious penalty a court can impose, and it is right that the sentencer explains why it has been given and why, if alternatives such as a fine or community order were available, they were not used.
Amendment 302 extends the list of people who will receive a written copy of the sentence. During the evidence-taking session, we received submissions that suggested a much longer list that would include all lawyers to all parties and the press; the right hon. Member for Dwyfor Meirionnydd included that in one of his amendments. My amendment suggests a slightly shorter list because I wanted to capture the essential parties while avoiding unnecessary bureaucracy or imposing high levels of resource cost on the court system. The amendment seeks to pare down the parties involved to those considered essential.
and that must be tackled. Victims are not happy when, for example, they hear that the offender is getting two years in prison but they see them six months later. That could happen easily if the offender is released halfway through the sentence or if, on the day they are sentenced, they have already spent six months on remand.
Conservative Members who have practised at the Bar might think that is absolute common sense, but I must confess that until the Leader of the Opposition gave me this job, I had no idea that release halfway through was automatic. [ Interruption. ] Conservative Members are surprised, but, on this point, I am with 95% of Great Britain’s public; most people do not know that release halfway through is automatic.
Mr Buckland: I am not criticising the hon. Lady, because I have no doubt that she will have had to deal with a wide range of issues as a Member of Parliament for some years and could perhaps be forgiven for not knowing that detail. However, I have to remind her that the automatic early-release provisions were part of the Criminal Justice Act 2003, which the Labour Government introduced, and I would have thought that she would be familiar with such a major plank of their criminal justice legislation, which she must have supported and voted for.
Mr Andy Slaughter (Hammersmith) (Lab): I hope that my hon. Friend will take the comments of the hon. Member for South Swindon as a compliment, because the Opposition clearly believe that her wisdom and authority go far beyond her years in the House. Although Members will be pleased to hear that I was aware of the provisions, my hon. Friend makes a good point none the less, because the remission on sentences changes for different reasons, and it has changed in legislation over the years. It is not surprising, therefore, that even very well-educated people do not know the exact details. My hon. Friend makes a sound point about the general public’s understanding of what a sentence means.
Helen Goodman: I am grateful to my hon. Friend. That is exactly the point: the general public do not understand the measures, and it is our responsibility to help people understand them. I do not mean that in the sense of public education; however, but victims of crime will be affected by the issues, and we have tabled the amendment so that they get the information that they need.
Another criticism will be that it would be unduly bureaucratic to write long letters. However, it should be possible to have fairly simple letters with standard explanations of what release on licence means and what the conditions of recall are. In its response to the White Paper, “Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders”, Victim Support said:
“We know from our experience of working with victims that many do not understand sentencing and do not know what sentences mean in practice. This is backed up by our research with victims and witnesses which found that they often leave court without a full understanding of the sentence given to the perpetrator of their crime.”
Anna Soubry: The hon. Lady makes a good point about victims often not understanding the sentence. However, rather than having a prescriptive procedure, which would be extremely costly and a nightmare to administer, we should recognise that the failing and the fault lie with the police officer who fails to liaise with the family, especially in more serious cases, so that they understand the sentence. That face-to-face explanation is the way to approach this; it is by far the more humane and sensible approach. It would explain things tonnes better than writing them down on a piece of paper, which, again, assumes that the recipient can read.
Helen Goodman: I do not see that there will be any great reduction in bureaucracy depending on who is required to give the information. We had a long discussion earlier about legal aid, which is paid for by the taxpayer, but I cannot see that there would be any great reduction in the resources used if the barrister or the police, rather than the court, have to write the letter. At the moment, there are no such requirements on those people, so it is significant that Victim Support says that the sentencer should cover such matters. It would like what is said in court to be followed up by a letter from the witness care unit. It states:
It is an area where victims often feel that there is a significant imbalance between themselves and the defendant, as the defendant has a legal representative who can provide a full explanation, whereas the victim, of course, does not have a legal representative in court. That is why we have such a long list.
Mr Buckland: I take the hon. Lady’s point about the need to communicate more consistently and better with victims. It may well be that mechanisms within the Crown Prosecution Service, such as letter writing and proper liaison, can be improved. Let us consider the position of a Crown court judge, perhaps with a busy list on a Friday of six or seven different sentences, some of which involve more than one defendant. How will such a proposal work for the judge who is trying his best to get through the list and deal with every case in turn? Will that judge be expected to write out verbatim each set of sentencing remarks before he or she gives the judgment? That will lead to a bit of a problem due to the bureaucracy involved, and it will affect the swift and proper administration of justice when we are dealing with people waiting in a list.
Helen Goodman: We included co-defendants in the amendment because, obviously, they have an interest as well as victims. The hon. Gentleman is perhaps going into slightly too much detail about the point in the process at which such action should happen. We have not said anything about the point at which it should happen.
Mr Buckland: I accept that, for example, in the Crown court there are no doubt full recording devices and that transcripts can be made—usually at some cost and a little later on. However, in the magistrates court there is no such procedure. The proceedings are not recorded verbatim. What mechanism could be put into place to help magistrates who are passing sentence? How can their remarks be recorded?
Helen Goodman: I am not suggesting that all sentencing remarks should be sent verbatim to the parties involved; I am saying that the judge or the magistrate should say what is to happen in plain language that anyone present can understand, and that subsequently the people listed should receive a letter setting out the position. Often people are stressed out and cannot remember what was said, but the amendment would mean that a week later, when they had gone home, they would have something to remind themselves of what had been done.
We could go further. When I met the people who run Support after Murder and Manslaughter, they said that victims of very serious crimes that cause huge distress in families should get a transcript of the whole case. When a member of a family has been murdered, that is completely understandable. It is almost the bare minimum that we can offer.
Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC): The argument of the hon. Member for South Swindon is double-edged. He said that a Crown court judge on a Friday, when sentencing perhaps 10 or 12 cases, will not have the time to scribble down a few lines of the business end of his sentencing remarks. Frankly, the problem that we have is that judges are so overworked that they are not able to explain their decisions anyway. The situation is not good, whether orally or in writing.
Helen Goodman: That remark is slightly misconceived. We could not possibly have coverage of all the cases that are going on in the entire nation. What victims, or those who have some particular relationship to the crime, are interested in is their case. I do not suppose that the BBC, Sky or others would broadcast cases about somebody smashing down Mrs Jones’s back hedge. It would not be fantastically fascinating to the great British public, but it would be of supreme importance to Mrs Jones and it is she who would like to see that. Whatever one’s views about the broadcasting of court cases, the hon. Lady’s remarks are slightly misconceived.
Coming back to the amendment, I want to explain why I included parents on the list. It is, I think, common ground across the House that we want to support, reinforce and, in some cases, increase the responsibility and control that parents exercise over their children, particularly teenage children. If they are to do that, they must have information about what their child is expected to do if they are on a community order. That seems to be pure common sense.
We included co-defendants, which I hoped was a way of avoiding confusion, as well as probation and youth offending teams. We know that co-ordination and co-operation between different parts of the criminal justice system needs to be addressed. It is not as good as it should be, and lack of communication seems to be one of the reasons why things that ought to happen do not always happen.
Let me turn to amendment 301 and the associated new clause 9, which require the court to consider the impact of any sentence on children and dependants, and to explain it to the offenders. The children of offenders are the invisible victims of the criminal justice system, but they should not be. That should be given more attention, particularly when one considers the very large number of children whom we are talking about.
In any year, at any time, 160,000 children will have one parent or another in prison. That is two and a half times the number of children who are in care, and six times the number of children on the child protection register. Each year, more children will have a parent in jail than will experience their parents’ separation. Everybody knows, or can easily imagine, that that is an unhappy and extremely disturbing situation for children. The Department for Education believes that 7% of all children will at some point in their childhood experience having a parent in prison. Some 54% of prisoners have children under the age of 18, and 17,700 children are separated from their mothers each year because their mothers are in prison.
The position of children whose mothers are in prison is of the most extreme concern. I shall describe why that is, and why we need to address the issue in a more strategic way than we have done hitherto. A lot of attention has been focused on women in the criminal justice system, and the Minister is trying, with limited resources, to continue the work begun by my hon. Friend in the other place, Baroness Corston. The children
The most interesting fact that I discovered when I researched the issue—this is why I became increasingly concerned about it—is that 92% of men in prison who have children say that their partner is looking after their children, but only 9% of women in prison who have children say that their partner is looking after their children. That is extremely alarming—90% of children are not with either parent. Only 5% of children with a parent in prison are able to stay in the home that they were living in before the parent was imprisoned; the other 95% have to move. That is why I come back to the remark—I know that it sounds rhetorical, but I think that there is truth in it—that these children are the hidden victims of the criminal justice system.
I am sure that the issue causes concern to all Members across the House. We are talking about the welfare of the child and the long-term effects on them, their potential and their future in society. Obviously, there is also an effect on their parents—particularly their mothers, as I say—because nobody can be expected to concentrate on some programme requirement if they are anxious about what is happening to their children outside prison. There is also a cost to us all.
However, I am not simply referring to the need to give information and to address the needs of dependants when parents are sent to prison. We have included fines and curfews in the list. We will come back to curfews when we discuss a later clause, but on fines, I remind hon. Members that the Financial Services Authority produced a report for the National Offender Management Service that found that 48% of prisoners have a history of debt. It also found, not surprisingly, that 60% of families become worse off while a member of the family is in prison.
I am not arguing, of course, that people with children should never go to prison; that would be an absurd proposition. I am not arguing that they should never pay a fine or compensation. I am not arguing that no mother should ever go to prison, although there are people who argue that, but that is not my view or the view of the Opposition. Of course there are dangerous and violent women who need to be locked up, just as other people who are dangerous and violent need to be locked up. Sometimes, of course, women need to be kept away from their children for the welfare of the child. However, if we look at what is going on overall, we see that we have the balance wrong at the moment.
Kate Green (Stretford and Urmston) (Lab): Does my hon. Friend agree that this would be a good moment to put on record that when the court is considering means and assessing the appropriate fine to be imposed on an offender who is a parent, any payments to that parent through the benefits system that are specifically made because they have children who are under 18 should not be taken into account? That would mean that payment of child tax credit or child benefit would always routinely be excluded in the calculation of the parent’s means.
Helen Goodman: I am grateful to my hon. Friend for making that pertinent point; she is absolutely right. She brings huge knowledge of the benefits system to all these discussions, and she makes a very sensible remark. The criminal justice system cannot expect the rest of us to be satisfied if it takes decisions irrespective of the consequences and simply expects social services departments to pick up the pieces. Social services departments will have to do that unless the impact on children is taken into account at the point of decision. I will go so far as to say that the way that the interests of children are ignored is irresponsible.
Anna Soubry: The record should make it clear that judges and magistrates certainly take into account what will happen to children when they sentence parents, especially when they sentence a lone parent. I, and I suspect many other people in the room—
Anna Soubry: I see a nod on the Opposition side of the Committee. We recognise that one of the first questions that will be asked of a lone parent’s representative is: “What is happening to the children, and what provision has been made for them?” In my experience, all magistrates and judges know precisely the consequences of a lone parent receiving a custodial sentence, because invariably the state has to pick up the pieces, and the bill.
Helen Goodman: The hon. Lady says that, but I will go on to give her some more information that suggests that things are perhaps not so rosy, or operating so well. In a survey of 1,400 women in Holloway with children, 42 of them—4%—did not even know where their children were and who was looking after them.
Furthermore, I am sure that the hon. Lady has read the Corston report, and I suggest that she re-read it. It contains alarming data collected by a voluntary sector organisation called Hibiscus. The children of foreign national prisoners are those most at risk, as they are sometimes left to fend for themselves. No account is taken of that, even though the children might be abroad. The hon. Lady needs to pause, therefore, and consider whether things are quite as well organised as she suggests.
The first problem is the shock for the child of a parent suddenly disappearing. The judge might know what will happen, but not the child. In 85% of cases this is the first significant separation between the child and the parent. Only 5% of the children can live at home and the other 95% have to move. Of the children of women prisoners, 9% are looked after by their fathers, and 25% by grandmothers. Some of the children go into care, fostering or adoption, but the Ministry of Justice’s statistics do not add up to 100%. We do not know what is happening to all the children, and I hope that if the Minister cannot tell us today, he will initiate an investigation and collect the numbers, because a policy cannot be reasonable if it is not based properly on the facts.
Anna Soubry: It is dangerous to record figures without taking into consideration the fact that they do not show how many of the women were in that position when they committed the offence. We do not know how many of them did not know where their children were because
Helen Goodman: As I say, if the Ministry of Justice is not collecting the statistics, it is difficult to have a full and accurate picture. I got the numbers from Barnardo’s and the Prison Reform Trust, which, as the hon. Lady knows, both work with children whose parents are in prison. If the hon. Lady was right, that would be fantastic, but I honestly do not believe her, and in any case I do not think that what she says relates to my point about needing an explicit duty to take into account the impact on the dependants of the person being sentenced, at the time of sentencing. If the hon. Lady is saying that everything in the garden is lovely, I hope that she will have no objection to the amendment. If she is right, it would not add any extra burden. The issue has not been taken into account, but I believe that it should be. That is why we have tabled the amendment.
Anna Soubry: The matter really is important. We know that people receive pre-sentence reports. When a probation officer speaks to a defendant, they will ask about his or her family circumstances. That whole duty then kicks in. The judge will notice from the pre-sentence report whether there are children and what arrangements are in place. There is no evidence to suggest that judges and magistrates do not take into account family circumstances. Where is the evidence that they do not? In my experience and—I suspect—that of everyone else, we know that it is taken into account.
Helen Goodman: The hon. Lady is barking up the wrong tree. I do not believe that people have the information. Even if she has the information, with the law as it stands, it would not be proper for people, when they are sentencing, to take into account what happens to dependants. That is why we need to make some changes—[ Interruption. ] The hon. Lady looks despairing, but she should not be as despairing as we all should be about the children.
Kate Green: Perhaps what speaks most powerfully to me—I understand where Government Members are coming from—is the fact that the outcomes are so poor for children whose parents are in prison. The hon. Member for Broxtowe suggests that in some cases—I am sure that she is correct—the outcomes would be poor irrespective of whether those children’s parents are incarcerated. However, I suspect that that is quite a small number, and that the incarceration of the mother, in most cases, will make the situation worse. In particular, the fact that so many children seem to be forced to move house when the mother is incarcerated suggests that their well-being is seriously compromised.
I am sorry that the intervention is turning into a little bit of a speech. Speaking briefly, from my experience sitting as a lay magistrate for 16 years, both the attention that pre-sentencing reports paid to the position of dependants and the attitude of magistrates regarding whether they were legitimately taking account of the
Helen Goodman: I am grateful to my hon. Friend for that intervention. I said that there are several reasons why we need to take the matter into account. Another is the implications for the taxpayer. On average, a prison place costs about £40,000 a year for a man and £56,000 a year for a woman. The Joseph Rowntree Foundation believes that, where there are children, the average cost is about £5,000 per family, which will be higher in cases where children are being taken into care, fostered or adopted.
We also need to take account, as I said at the beginning, of whether the separations are conducive to prisoners rehabilitating themselves. As I said before, there are particular problems for women. Only half the women maintain contact with their children while in prison. That is made considerably more difficult for them because, inevitably, the women’s estate is more sparsely distributed around the country. A high proportion of women are more than 100 miles from their homes. People have to travel long distances to visit, and there is no financial support for families to make those visits.
Another aspect is the long-term costs for the child. Unsurprisingly, the prognosis for such children is poor. They have a higher chance of being not in education, employment or training. I think the Ministry of Justice knows that there is a trebled risk of antisocial behaviour. The experience of having a parent in prison is traumatic and stigmatising. It is bad for children’s health and education, and it means that they are more likely to live in poverty.
By not addressing the needs of such children at the outset, we are setting them on a path to being far more likely to be involved in the criminal justice system for the rest of their life. Some 37% of prisoners come from families in which someone has been found guilty of something more serious than a motoring offence, and 32% of prisoners come from families in which someone has been in prison. The “Cambridge Study in Delinquent Development” published in 2005 found that having another member of the family in prison was the biggest risk factor for people’s future options, being bigger than any of the other social and economic problems that they face.
Tom Brake (Carshalton and Wallington) (LD): I am listening carefully to the hon. Lady, and I assume that her official party position is now in favour of community sentences as an alternative to custodial sentences for low-level offenders.
Helen Goodman: That is exactly where I was about to go with my speech. We need more community sentences, which is why we have pioneered the women’s centres. I am extremely disappointed that the Minister has cut resources for women’s centres by some 25%, because decisions to give non-custodial sentences can be made only if such an alternative is available.
As I said, the language that I have used is not gendered and deliberately so, because we do not take the view that women’s sentencing should be different from men’s or subject to different rules; we are asking for their dependants to be taken into account. Many people say that women are treated more harshly in the criminal justice system—
Helen Goodman: My hon. Friend says that they are, but I have checked what is going on and I have to tell her that women have received the same length of sentence for similar crimes. The problem is that they are more likely to be given a custodial sentence early on: for a first offence, 28% of women receive a custodial sentence compared with 13% of men. To pick up precisely the point made by the right hon. Member for Carshalton and Wallington, 70% of the men in prison but 82% of the women in prison are there for non-violent offences, which is why we need to reconsider the balance.
I hope that the Minister will see that I am arguing for a system that is more humane but also more economic in the long run. The New Economics Foundation believes that for every £1 in community provision there would be a £14 return to women, children and society over 10 years. I hope that the Minister will accept the amendments.
I am in broad agreement with most of what the hon. Lady has said, but I will confine myself to the amendments that I have tabled. In effect, amendment 267 would place a duty on courts to notify in writing the offender, the offender’s legal representative, victims of the offence, family members or representatives of the victims, the Crown Prosecution Service, co-defendants, other legal representatives, the probation service, the offender’s guardian or parent if the offender is under 18, and representatives of the media. I will explain why I refer to representatives of the media.
The amendment would effectively remove the Lord Chancellor’s power to prescribe by regulation cases in which the duty to give reasons for the sentence imposed and explain its effect in court should not apply. I believe that the duty should apply in all cases. It is also highly desirable for a written version to be provided of the reasons for and explanation of the sentence. The amendment provides for cases in which offenders are not present in court for sentence, for example because they have chosen to absent themselves. Under the amendment, the judge or bench would still have a duty to explain to those in court the reasons for imposing the sentence, as well as its effect, but a written version would be given to the offender. The amendment would also provide for written versions to be distributed to representatives of the victim’s family, as I explained.
I am not speaking to my amendment just for the sake of it; perhaps I could not say so of anybody else either. The hon. Member for South Swindon is an experienced barrister dealing with criminal matters. He knows that on Fridays, judges sentence many people, and some
I went down to the cells to see him, and I said, as one would, “I’m sorry, nobody can avoid a custodial sentence. My job will be to keep it as short as I possibly can in the circumstances. What are you going to do when you’re released?” He turned to me and said, “I’ve thought about that.” I said, “Good,” and made some notes. He said, “For the last nine or 10 months, every apple I eat, I’ve kept the apple core, and I’ve planted it. When I come out, I shall sell the apples.” That showed that he was not very lucid, and that I was not getting through to him. I am not making fun of the young gentleman. He had been smoking cannabis, the strong stuff, since he was 13 years of age, and that was what happened. I could not get through to him, and I have no doubt that the judge did not get through to him.
I went down to see him after the sentence, which was mercifully short, but a custodial sentence none the less. I explained to him once again and said, “Do you understand?” He said, “Yes, I do.” The following day, his father rang my chambers, because the young man could not explain what had happened or what sentence he had received. I am afraid that that is not uncommon, given the huge amount of strong cannabis that is now being taken and the number of people suffering from delusions, drug problems and so on. Others, of course, might have hearing problems. That is a snapshot that illustrates why the amendment might be useful.
Some time ago, Lord Justice Leveson came before the Justice Committee. I put it to him that it would be a useful addition to our practice if sentencing judges or magistrates included a brief résumé—say four sentences—of what the sentence was, why it was imposed and how long it would be in effect. He said that, unfortunately, courts would be very busy. I have no doubt that the clerks in the magistrates courts and the associates in the Crown court are very busy. However, if we are serious about transparency and making the public aware of what a sentence means, why it was imposed and how it works, it is not too much to ask for a brief résumé of four or five sentences to be taken and for a copy of that to be sent to a list of—[ Interruption. ]
Mr Buckland: Who would do that? Sometimes one cannot reduce a complex sentencing exercise to four or five sentences. Would that not be a problem? If I were the judge or magistrate, I would be concerned to ensure that what I said was faithfully reproduced.
We should also consider the amendment in relation to reporting. Not so long ago, a circuit judge in south Wales sentenced a paedophile. As a result of the operation of two or three different Acts, he could not give that wretch a longer sentence than the one that he imposed—he could not possibly do it. He was vilified in the press. I went on local radio to defend that judge, who is highly regarded and fair minded. The remarks that he had made in sentencing were ignored. He had clearly said that he was constrained by particular Acts and therefore could not sentence that man to a day longer, but the press came out and said that he was treating a paedophile very softly indeed and had not imposed a proper sentence on him.
That is not the first and will not be the last example of the press, by design or otherwise, misconstruing what judges have said. Such cases could be cleared up if we followed the simple procedure in the proposals. It just so happens that the judge in question, who was completely exonerated from day one, is now a member of the High Court bench, and rightly so. The point is that time and time again, some parts of the press think that misconstruing judges creates a good story, which it does, because people like to read about other people getting things wrong and making an appalling mess of it.
The amendment’s purport is to ask for a succinct note of the business end of the sentencing remarks to be made available. That is not too much to ask—it would be transparency at work. The hon. Member for South West Norfolk referred to televising court proceedings, which is not a good idea. People might play to the gallery, witnesses’ words might be constrained or people might say things that they would not dream of saying were they not in the public gaze.
However, televising sentencing remarks might be useful. I am not against what the hon. Lady said. I am against televising routine cases throughout their proceedings, but televising sentencing—yes. However, that will not be an answer to the problem, because although there might be a growth in local television, there will not be a television camera in every Crown court in England and Wales.
Mr Llwyd: Yes. All the Inns of Court have strong drama companies—I shall say no more. My amendment would deal with that ill—and it is an ill. Very often, people have their opinions created for them by the media. If the media decide not to report fairly on sentencing, whether by design or otherwise, we might see the criminal justice system fall into disrepute. Nobody in this Room or elsewhere would like to see that happening. The proposal would be a useful step forward and will not amount to a lot of work.
Mr Llwyd: I am grateful for the intervention. Six months ago, the right hon. Gentleman would have been the first to support this amendment, but life goes on. [Interruption.] I have not costed the proposal, for obvious reasons. I am not a Minister, so it is not up to me to cost it. I am suggesting a policy that might usefully be followed and the right hon. Gentleman would undoubtedly have supported me a few months ago.
Anna Soubry: It has to be said that if a defendant has such a lack of understanding of their sentence, one would have to doubt their fitness to plead in the first instance. As the right hon. Gentleman will know, a question of fitness to plead is the first hurdle to jump when getting to that level of sentence.
Mr Llwyd: I take the hon. Lady’s point, but that is why I mentioned that case. People who suffer from that particular complaint and who have been overdoing strong cannabis can be as lucid as she or I one minute and the next minute they are not. He might have presented himself before the probation officer for the purposes of the report as perfectly lucid. If he was not perfectly lucid, how would he have been able to secure so many A*s and so on and how would his school have thought that he was heading for university armed with four A-levels? None the less, the day I saw him, he was nothing like that.
Mr Buckland: The mechanics are important. The Crown courts automatically tape proceedings. The court associates have access to a national computer system and they are busy typing in the orders that are made, so they have a lot of work on their hands already, and that is vital because the judge can look at a living file on every occasion. Finally, the judges themselves are doing a tick-box exercise because they are taking part in a national survey on sentencing. Already, there is a lot of paperwork. I am sorry if I am repeating my point. I am concerned that this is yet another burden and that it may be the straw that breaks the camel’s back.
Mr Llwyd: That may be so, but we could argue about that. The hon. Gentleman knows that judges often do not fill in the boxes anyway because they feel overworked. Perhaps the answer is to list five of six fewer pleas on a Friday. I have made the point as best I can. I should like also to refer to the victims in all of this. Sally Gimson told the Committee that it was very important that matters should be explained in “ordinary language”. She said:
“Very often, as you say, victims are not in court, and they might not understand—if they are told at all, and they might not be.”––[Official Report, Legal Aid, Sentencing and Punishment of Offenders Public Bill Committee, 13 July 2011; c. 31, Q48.]
She then goes on to support the idea of notification. Louise Casey said that she thought it useful to use language that was clear and easily understood, and nobody could disagree with that. She also thinks that it would be helpful for something to be written down.
The Committee will be pleased to hear that I am losing my voice rapidly, so I shall conclude my remarks by saying that the amendment would be useful. It would deal with several current ills in the system, but I take on board what the hon. Member for South Swindon said. Judges are very busy, but I am sure that it is not beyond the wit of someone to come up with a system whereby such a real problem can be dealt with.
Ben Gummer (Ipswich) (Con): I rise to speak partly because the hon. Member for Hammersmith is not in the room, so I know that I shall not be barracked. I shall make my comments on the amendments short, because we need to make progress. I hope to be wrapping up my remarks at about 3 o’clock.
It is a real measure of where the Government are that we are having such a discussion. It is exciting because, for the first time in a long time, we are having substantive discussions about deep, penal reform. It is also encouraging to have heard the hon. Member for Bishop Auckland making such constructive suggestions and engaging in what, I hope, is a momentous point in our prison history. It is also interesting to see how her attitude is diverging from that of other members of the Opposition Front Bench, especially her boss, who has been giving a rather different impression of what he thinks about non-custodial sentences.
The amendments have one thing in common, which would be to add complication and detail to what is already a large Bill. There are many things that we need to correct, particularly in sentencing. We are dealing with a massively over-extended Courts Service, one which almost approaches chaos at points. We are attending to what is, at times, a dysfunctional CPS, which is unable to proceed in the normal sense of administrative efficiency. We are also dealing with a broken social service system, which too often does not take the needs and requirements of women offenders and their children into account. We know about that, but to try to make perfect the enemy of the good now would be counter-productive. By adding in so many requirements, the gist of which I think that everyone on the Government Benches would support, we would be making life harder for the Courts Service at the point at which it will see the largest revolution in sentencing for many decades.
I hope that, in time, there is the prison capacity to bring proper min-max sentencing to bear. We know that we cannot do that at the moment because there is not the capacity. When we have the capacity for a more civilised approach to women prisoners, we can repeat what is done in Doncaster prison, for example, by bringing families together on a twice-weekly basis, and bring some of the best practice from Norway about part-time prisoners. With the available resources, we can reconsider such issues. However, given the significant challenges faced by the Minister with responsibility for prisons, such issues would muddy the Bill and be counter-productive.
I suppose that I am one of the few members of the Committee who is not a barrister, but I have sat on the bench with a Crown court judge during his sentencing process. His big worry was having the time to think through sentences and give the right one instead of filling out forms and ticking boxes all the time. For him
We will end up in a difficult situation if judges are required to distinguish custodial and non-custodial sentences; I have discussed that with the Prison Reform Trust, which raised the issue with me. Government Members, with support from some Opposition Members, are seeking tough non-custodial sentences that the public understand to be as onerous for the offender as a custodial sentence. If we write into the Bill a requirement that sets a bar, almost suggesting that a custodial sentence is more serious and onerous than a non-custodial sentence, it could have a counter-productive impact on public opinion. Amendment 300 is, therefore, misconceived. I understand its purpose but think that it could have a perverse impact on the media relations that we know we must somehow correct.
The amendments speak to many of our concerns about language, women and explaining sentencing to the public. However, I have considered each of them carefully and feel that each could end up having a perversely bad effect on what we are trying to achieve across the House. I hope that we can revisit them at a later point in proceedings, but I cannot support them.
Kate Green: Although we might not see it from casual observation, there is much consensus in the Committee about the issues under discussion, and I was struck by the comments made by the hon. Member for Ipswich, which were sensible and realistic in many respects. I want to add a couple of points about sentencing and the consideration of dependants. This has been a useful discussion and I think it would be helpful to put them on the record.
We have spoken a lot about what already goes on in court, but we must make a distinction between magistrates courts, where the vast majority of cases are heard and where most of the judiciary are not professional judges but lay magistrates, and the Crown court where more serious cases are heard, and where judges have a high degree of professional expertise and deal with considerable pressures given the importance and busyness of their courts. There has been some blurring over what mechanisms are in place to record sentences and what goes on in court, and how that information is fed back to defendants, their victims and anyone else who is interested. We need careful and detailed plans so that the right mechanisms are in place for each judicial forum. It is important to understand that what works in the Crown Court might not work in the magistrates court.
When I sat as a magistrate between 1993 and 2009, the process of sentencing decisions improved considerably. The structured approach that magistrates began to take, and the way they approached decision making and used
Unfortunately, one downside to the improvement in sentencing structures is that they become very complex; the hon. Member for South Swindon referred to that. For example, a community penalty can have a number of different elements. I have bitter memories of flicking backwards and forwards through sentencing guidelines on pronouncements because I was trying to describe a community penalty that had three or four different components, none of which was on the same page. There were different options for which parts to read out, depending on how far the process had gone, who the defendant was, how many times they had previously appeared in court and whether they had pleaded guilty. Discounts are an important part of our sentencing framework but, as is accepted across the Committee, they add further complexity to making and communicating a sentencing decision. I am in favour of anything that helps simplify the process of explaining how different components come together, because we have not yet achieved perfection.
I was interested in the remarks made by the hon. Member for Ipswich about not wanting to downplay the seriousness of a community penalty by putting in extra explanations about when a custodial sentence is imposed that would not otherwise be applied. I understand his point and will reflect on it, but the converse argument is that custody is a very serious penalty and we should ensure that when magistrates and judges are reaching for it they can absolutely verify and validate the process by which they arrive at the conclusion that no other sentencing option is possible. A pronouncement explaining that might help to ensure that the decision is absolutely rock solid and secure.
Finally, I made most of my comments on dependants in my earlier intervention on my hon. Friend the Member for Bishop Auckland, but I would say that there are still judges and magistrates who are unsure and ambivalent about the weight they ought to give to the existence of children in the family of a defendant, particularly a mother, who is facing a custodial sentence. It would help to be explicit that not only is it legitimate, but it is required of courts to take that factor into account. It would not predispose the judge in their ultimate sentencing decision, but it would be useful explicitly to say to the courts: “This factor falls within the purview of your sentencing decision.” Whatever the hon. Member for Broxtowe and others might believe is the practice in most cases, the extent of poor outcomes for children whose parents are incarcerated suggests that we are not giving the weight that we should to the well-being of children.
On a serious note, it is important that defendants, parties to proceedings and victims understand properly the detail of the sentence. I do not agree with the argument that it is too much trouble for a judge to spend a couple of minutes filling out a simple form. I have not been a judge, but the hon. Member for South Swindon sat as a Crown court recorder and would have had a busy list on a Friday, so I am sure that he has much more experience than I have of the pressures on the judiciary in a Crown court situation. In my experience, however, the judiciary go to great lengths to try to explain sentences, and I do not think that it would take them more than a couple of minutes to explain what the sentence outcome was. That would provide more transparency and act as a safeguard for the judge, to an extent.
The hon. Member for Broxtowe said, I think, from a sedentary position: “But it is unnecessary.” We have had a good debate on the amendments, and I do not think that the measure is unnecessary. The debate has been interesting, and I wish that colleagues on the Committee could have been as excited about other clauses. Clause 12, for example, is a terrible clause and I wish it could have created as much passion among the practitioners sitting on the Committee. The argument that the measure is unnecessary is not worthy. The amendments are important.
I am ambivalent about cameras in courts but given the pressures that courts and judges face, is not the most effective way of registering what is said to have cameras and a verbatim recording? Anyone who did not understand the court proceedings would at least be able to go back and view what was said.
Karl Turner: The right hon. Gentleman makes a valid point, but the practicalities of recording every sentencing are difficult. It seems completely impossible, in my view. I am not persuaded by the idea of televising courts; I do not agree with it. There is a tendency for advocates to play to the gallery, as the right hon. Member for Dwyfor Meirionnydd said, and I think there is a danger that the judiciary might do so as well. In my experience, if the press are in the public gallery in a courtroom, judges’ remarks are sometimes exaggerated for the benefit of the reporters sitting in court.
The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt): I agree with the hon. Member for Stretford and Urmston that we have had a good debate, and I agree with her about the remarks of my hon. Friend the Member for Ipswich, who summed up the position well. Like everyone else, I am anxious to make progress. Every useful intervention made requires us to give more time to the examination of the Bill’s detail, but on reflection, this debate has been well worth the Committee’s time. I will reply to the debate and put on
Before I turn to specific amendments, I think it will be useful if I explain clause 54. It might also help us to avoid a stand part debate. Clause 54 replaces section 174 of the Criminal Justice Act 2003 with a new section simplifying the existing duties to explain a sentence. The proposal was widely supported by the vast majority of those who responded to the consultation paper “Breaking the Cycle”. Many people, not least in the judiciary, have said clearly that the current statutory requirements are overly prescriptive and have become increasingly complex as additional requirements have been added.
Current legislation is difficult to locate and understand, and can become simply impracticable in the day-to-day operation of the courts. The Government want to address those problems, which is why we created replacement section 174 to simplify, shorten and consolidate the various changes made to the section since 2003. In doing so, however, we have retained the important statutory requirements placed on courts to explain the effects of a sentence and, crucially, the duty to state in open court, in ordinary language, the court’s reasons for the sentence. That means that not only the offender but victims, witnesses and the public can see justice being done. It is a balancing act between the need to ensure that courts make it clear why a sentence is being imposed and the need to avoid burdening courts with unnecessary and prescriptive provisions that confuse rather than clarify.
I am grateful to the right hon. Member for Dwyfor Meirionnydd and the hon. Member for Bishop Auckland for tabling the amendments and giving me an opportunity to explain the clause. I know that the first set of amendments was inspired by the briefing produced by Liberty, and they are none the worse for that; we all rely on advice. I turn to why the Government believe that amendments 267 to 270 are unnecessary and impractical, and why they are unlikely to achieve what the right hon. Gentleman and Liberty say they want to achieve.
The first part of amendment 267 would delete a power that allows the Lord Chancellor to prescribe cases where the duty to explain does not apply, or where the explanation of a sentence may be made in the absence of the offender or provided in written form. The next part of the amendment would change the nature of the duty to explain the effect of a sentence when the offender is not in present in court.
I should explain that the power given to the Lord Chancellor in new section 174(4) already exists in the current law. On this narrow point, however, I must say that the power has never been used. When we looked for an example of when it might be used, I confess that we were left scratching our heads. We have taken a safety-first attitude that it might be used, so we would tend to leave
Consequently I am happy to say to the right hon. Gentleman on the specific point about section 174(4) that I will go away and look at the power, and I will see if anyone cleverer than me can come up with examples of where it might be used. If they do come up with an example, we may want to preserve it, but if they do not I see no reason not to get rid of it, which would be consistent with the aim of simplifying the position.
Amendment 267 would also change the nature of the duty to explain the effect of a sentence when the offender is not present in court, so that it became a general duty to explain rather than a duty to ensure that the effect of a sentence was explained to the offender. The Government consider that the duty to explain is rightly directed at the offender, whether or not they are present in court, because it is primarily the offender who must be made aware of the implications of their non-compliance with their sentence.
Practical issues arise with the next part of the amendment, which would place a requirement on a court to provide written reasons for sentencing and a written explanation of the sentence in every case. The amendment would go on to require, again in every case, that these written remarks are given or posted to the offender and no fewer than nine other groups. That is simply not a practical proposition. More than 1 million sentencing decisions are made each year and providing written reasons in 10 million letters would lead to a large increase in the work load of courts at very significant expense. In addition, such a proposition would not help to build understanding of sentencing among the public. Sending sentencing remarks to representatives of the media in every case, as the amendment also requires, would simply swamp the media organisations. Swamping the media organisations may have its own appeal, but perhaps it should not be done at the expense of the taxpayer.
Mr Llwyd: No, the learned Lord Justice Leveson did not support the idea. His only objection was that he thought that associates in the Crown court and clerks in the magistrates courts were already too busy. He did not actually support the proposal, but he did not vehemently say, “Well, as a matter of principle, it is nonsense.”
As we are representing the interests of the taxpayer here, I have a problem with “a very substantial cost” being added to the system, and it would also complicate the life of court administrators. We must make a cost-benefit analysis and, in these circumstances, I fear that I must invite the Committee to resist the proposal.
That is not to say that there is no written record of the sentence; just because judges do not always issue written sentencing remarks does not mean that there is no written record. For offenders receiving a custodial sentence, the sentence is first recorded by the court clerk; normally, the offender’s counsel or legal representative will then explain the sentence to the offender before they leave the building, as members of the Committee have made clear. The witness care unit has an obligation to explain the sentence to both victims and witnesses in writing in due course, and when the offender is taken to prison, a warrant issued by the court is given to the prison detailing the sentence that has been handed down. The prison then calculates the release date for the defendant and informs him or her of that as soon as possible. For community orders, the probation service receives a record of the court’s order and explains the implications to the offender at the first meeting. With fines, the offender is issued with a collection order that sets out the terms and methods of payment.
For those reasons, we oppose any further prescriptive additions to legislative duties, although I do not want to suggest that we have dismissed the thoughts behind the amendment. We want to increase the public’s understanding of sentencing, on which both sides of the Committee are in agreement. That is why the court service has agreed, in response to the victims commissioner’s recent report, to make transcripts of sentencing remarks in cases involving deaths available to the family of the victim. We are also making sentencing information more available and transparent. As has been recently reported, and as referred to by my hon. Friend the Member for South West Norfolk, we are considering televising sentencing remarks. They are practical measures that will help victims, witnesses and the public understand sentencing, and I hope that the right hon. Member for Dwyfor Meirionnydd will agree that they form a more achievable approach than his amendment, particularly in the current economic circumstances. Our approach is consistent with both his objective and our aim of generally reducing prescription and the burden of administration.
Amendments 268 to 270 would reinstate in section 174 the requirement for a court to set out where an offender has received a custodial sentence because they have met the custodial threshold, or where they have met the threshold for a community order. Such thresholds are contained in sections 148 and 152 of the Criminal Justice Act 2003. In revising section 174, we have removed the unnecessary provisions, such as those that the amendments seek to reinstate. There is already a general duty to give reasons for a sentence in ordinary language under subsection (2). Where an offender receives a custodial sentence or a community order, the court will invariably say why it has imposed that sentence, that the offence is so serious that a custodial sentence is necessary, or that a community order is warranted. The general duty already covers the need to explain if a custodial or community order threshold is met. I am alive to the issues raised by my hon. Friend the Member for Ipswich about making community orders more robust and punitive. He made a sound point about the overlap between the punitive effects of sentences in the community and in prison.
Listing specific custodial and community sentence threshold requirements in section 174 is an example of how the 2003 Act has become overly complex, and that is what we are trying to address in the Bill, and I hope that the explanation will reassure the right hon. Gentleman that amendments 267 to 270 can be withdrawn.
Amendments 298 to 302, which were tabled by the hon. Member for Bishop Auckland, cover similar ground, although in a different way. I have already set out why we think that the general duties to give reasons and the effect of a sentence are important. Amendment 299 would, however, delete the duty to explain in open court and in plain language the reasons for imposing a sentence. That general duty in subsection (2) is crucial to ensure transparency and public confidence in sentencing. It is also a long-standing legal requirement set out in statute and, for many years before that, in case law, that a court must give reasons for its sentence, rather than simply stating what the sentence is. It is also crucial for the appellate court, so that it knows the court’s reasons for a particular sentence.
Amendment 299 would also replace the duty to give reasons for a sentence with a duty on the court to take reasonable steps to ensure that the offender understands the terms of the sentence. That, however, is exactly what subsection (3) of revised section 174 will do. In short, amendment 299 would delete a crucial duty and replace it with a requirement that already exists.
Amendment 300, as I understand it, seeks to add to the duties of the court. It would add a requirement to explain why a custodial sentence has been imposed; in other words, to explain that the offender has met the custodial threshold, as set out in section 152 of the 2003 Act. As I have already said in relation to amendment 270, we have removed the specific requirement to outline when an offender has met that and the community order threshold, because that requirement is met by the general duty to give reasons for a sentence in subsection (2). That reduces the detail of section 174 without losing the important duty to give reasons. However, amendment 299 would delete the duty to give reasons for a sentence, so the specific requirement would, rather oddly, create a duty to give just the one reason for a sentence. To compound the confusion, the duty to give a reason for a custodial sentence is inserted into section 174(3), which is the duty to explain the effects of a sentence. That would confuse the reasons for and the effects of a sentence.
Amendment 302 is similar to amendment 267 in that it would place a requirement on the court to provide written sentencing remarks. As I have said, written sentencing remarks can be valuable, especially in very serious or controversial cases, but to require them in every case, even for five rather than 10 groups, is simply impracticable.
Finally, I understand the thinking behind amendment 300 and new clause 9, which are both designed to ensure that the court considers the existence of children and dependants in sentencing. They are both well intentioned. Amendment 300 would add to the duty on the court to explain the effect of a sentence a new duty to explain the effect on the children and dependants of the offender. I do not believe that such a change is required, is in keeping with the clause or is a practical proposition. The duty in subsection (3) of revised section 174 is to explain to offenders the effect of the sentence imposed
New clause 9 would place a specific requirement on a court to consider children and dependants in sentencing. I do not believe that such a specific addition to the law is necessary. In considering a sentence, courts must take into account the offence’s seriousness, which relates to the harm caused and the culpability of the offender. In deciding on the seriousness of an offence, courts will have regard to any mitigating circumstances of the offender, including consideration of the offender’s responsibility for the care of children or dependants. That is a long-established practice, and guidance is provided by judgments of the Court of Appeal on the weight to be given to care responsibilities as a mitigating factor. Although I understand the reasons behind new clause 9, I do not think that it is necessary to place yet more prescriptive provisions into law when the judiciary can and already do consider such matters as mitigating factors in sentencing.
Helen Goodman: I shall not delay the Committee with a long series of remarks, but I shall make two points. I accept that it is conceivable that our amendment 299 is technically flawed, and I shall not press it or amendment 300 to a vote. However, notwithstanding the hon. Gentleman’s remarks, insufficient weight is being given to the needs of dependants and to the interests of victims, so I shall press amendments 301 and 302 to Divisions. I beg to ask leave to withdraw the amendment.
‘(e) the effect of the sentence on any child or other dependent in the care of the offender where the sentence is—
(i) a custodial sentence,
(ii) a fine,
(iii) a community order.’.—(Helen Goodman.)
‘(4) A court must provide written versions of any statement given under subsection (3) to—
(a) the offender;
(b) the victim;
(c) if the offender is under 18 years of age, the offender’s parent/guardian;
(d) any co-defendant convicted in the case, whether or not at the same trial/hearing;
(e) the probation service or, if the offender is under 18 years of age, the youth offending team.’.—(Helen Goodman.)
‘( ) In the Armed Forces Act 2006—
(a) in section 252 (duty to give reasons and explain sentence), omit subsection (2);
(b) in section 253 (duties in complying with section 252), omit subsections (1)(a), (c) and (d) and (2)(b) and (d) to (h).’.
‘() paragraph 24 of Schedule 25 to that Act;’.—(Mr Blunt.)
Helen Goodman: To be clear, the Opposition are content to agree the increases in sentencers’ discretion in the clause to allow for cases where a breach of conditions under a community order is trivial. In amendments 303 and 304, however, we oppose the use of fines in the event of such a breach. Essentially, we have three objections to that measure. First, it undermines the community order regime; secondly, it will privilege the very wealthy who might come into contact with the criminal justice system; and thirdly, we have doubts about the efficacy of the fining regime.
First I will look at some of the community orders. The community orders include offending behaviour programmes, which might include programmes to address patterns of domestic violence or sexual offence, curfews and community orders intended to address people’s drug or alcohol problems. If attitudes and behaviours are driving people’s criminal behaviour and the offender refuses to comply with an order to go on a programme to address the underlying drivers of the offending behaviour or to acknowledge and address their problems, we do not accept, and the public will not accept, that fining will be adequate recompense or a way of making people change their behaviour in the appropriate manner.
I want to remind members of the Committee of what is going on at the moment. I am grateful to the National Association of Probation Officers for this information. Of all community orders imposed in 2009, some 52% ran their course successfully, 12% were terminated early for good progress, 16% were terminated for failure to comply and 10% were convicted of further offences. The pattern will not be significantly different in other years. Perhaps one quarter of people will be fined instead of being sent to custody or required to complete their community orders.
As an example, take someone who is beating his wife. It cannot be acceptable that he should avoid dealing with that problem through paying a fine. That is not a fanciful example. When I went to visit the probation office in Middlesbrough, which covers both my constituency and that of my hon. Friend the Member for Stockton North, I met one of the probation officers, who told me that she was dealing with an offender who had repeatedly been up on domestic violence charges. He begged her not to be recommended for a domestic violence programme and to have an alternative. She was obviously highly resistant to that, which was right.
We need to make it absolutely clear to people that a fine is not acceptable and that we will not flex the system to that extent. That view is also held by the Magistrates’ Association, given the example that it gave. If a person is on a curfew, and the curfew is that they have to be at home on a Saturday afternoon instead of being at a football match having a fight, as they do on a regular basis, it is no use to give them a fine if they breach that. That is not an acceptable alternative.
Alex Cunningham (Stockton North) (Lab): Does my hon. Friend agree that this clause plays into the hands of rich celebrities, such as footballers and models and people of that ilk? We have seen examples of that in recent months. They easily stump up the cash and pay the fine, instead of receiving a punishment that punishes them.
Helen Goodman: My hon. Friend makes precisely a point that I was going to come to. To the kind of people that my hon. Friend is talking about, £2,500 is a trivial sum of money. They will take legal advice and they will avoid the 100 hours unpaid community work, which to them, on their stupendous salaries, would be worth thousands and thousands of pounds. They will simply write the cheque. That is not fanciful. I have here a report from The Times about Ms Naomi Campbell. It states:
“Yesterday Campbell, 38, pleaded guilty to kicking and spitting at police officers after flying into an uncontrollable rage on board a flight from Heathrow to Los Angeles in April. Campbell had ordered the Captain Miles Sutherland to get off the aircraft and look for her suitcase personally, holding up the flight for almost an hour. When the cabin crew eventually called the police to remove her she refused to disembark and claimed she was targeted because she is black.
The model pleaded guilty at Uxbridge Magistrates’ Court…to two counts of assaulting a police officer, one of disorderly conduct likely to cause harassment, alarm or distress and using threatening abusive words or behaviour to cabin crew.
and to the captain of the aeroplane. Subsequently, British Airways fined the super-model. It is clear that, if she had had the option down the track of not performing 200 hours’ community service, she would have written an even larger cheque.
Mr Blunt: The hon. Lady misunderstands the effect of the proposal, so we might be able to curtail the debate. The fine is an additional punishment. The community order continues so, in such circumstances, Mrs Campbell would not be buying herself out of her community work that she had been ordered to do, but would have to continue to do it.
Helen Goodman: I am grateful to the Minister for his explanation. Before we go any further, will he explain whether the fine is instead of a custodial sentence in the event of breaching a community sentence?
Mr Blunt: The fine is not instead of anything. The additional changes to the sum of £2,500 is to give sentencers, when they are presented with such a situation, greater flexibility to deal appropriately with the cases in front of them.
Mr Slaughter: I hear what the Minister is saying and he will correct me if I am wrong, but in the event of a breach and if the transgression were minor, and explicable, the order would continue or it would be revoked and there would be fresh sentencing. That fresh sentencing is either likely to be a further community order, perhaps of a more onerous or appropriate kind, or a custodial sentence. That still seems to be a nod towards leniency in the sense that, for what may be a breach more serious than something minor that is dealt with by allowing matters to continue, in the example cited by my hon. Friend, the person will be allowed to get away with paying a fine.
Helen Goodman: I am indebted to my hon. Friend for his remarks. If he is right, and I am sure that he is, it seems that the Minister was trying to get off on a technicality and that the substantive point in our amendment is, in fact, correct.
Our third worry about the clause is the unsatisfactory record of collecting fines. It is obviously highly likely that people who are unreliable in performing community orders or in paying compensation are also likely to be unreliable in paying their fines. If the fines are not paid, they will be seen to be getting away with it. That is how the public will see the position. The Magistrates’ Association has told us that it is particularly worried about the matter with respect to serial offenders. Although there are penalties for non-payment, they are not used frequently. How realistic is it to use the provision as either an effective penalty or deterrent?
Another reason why there might not be a deterrent effect is that high fines are imposed infrequently. For example, in 2010, the last year for which the numbers are available, only 220 people were fined more than £1,000. The Minister has drafted the Bill to provide for fines of £2,500, which sounds fierce—I know that it is part of the existing scale—but if only 220 people are being fined, how realistic is it for him to say that the £2,500 fine will be used? As I pointed out earlier, the Magistrates’ Association has told us, based on information from the Ministry of Justice, that about a quarter of the people on community orders are not completing them satisfactorily or are breaching them. The provision therefore looks rather empty.
Mr Slaughter: I could not agree more, because part of the discussion about unpaid fines this morning, in which I did not intervene, did not ring true. During the adjournment, I looked at the Law Society Gazette, which reported in July that unpaid court fines have jumped £600 million in aggregate, while the number of court collectors has been reduced by 12% by this Government. The change therefore seems to be a bit of an empty gesture.
Helen Goodman: I am grateful to my hon. Friend for his up-to-date remark. I looked at the 16th report of the Public Accounts Committee for the 2010-11 Session. Last week, hon. Members objected to our referring to briefings from pressure groups, but I hope that they will not object to our referring to House of Commons papers. The report explicitly stated that the Ministry of Justice’s defence of its rate of payment, which was 86% in 2009-10, was not satisfactory. It stated:
“There was little evidence of the sustained improvement in fine collection rates that we were promised in 2006. As at 31 March 2010, outstanding fines and confiscation orders in arrears and over six months totalled just under £1.5 billion, of which just 30% was considered recoverable.”
That figure of about £500 million for what is recoverable is perhaps the same as the number that my hon. Friend the Member for Hammersmith mentioned as having risen to £600 million. The report continued:
“Unpaid court fines and penalties have increased year-on-year and the Ministry’s primary measure of how effectively court fines are being collected is inadequate. The Ministry still relies on payment rate, despite our conclusion after our 2006 Hearing that the payment rate fails to capture the amounts of outstanding arrears. We look to the Ministry to introduce the promised improvements to performance measurement by September 2011.”
“Without combined financial and operational performance data and a full understanding of its costs, there remains a risk that, in implementing its Spending Review settlement, the Ministry will not achieve best value for money and will not understand properly the impact of cost reductions on frontline services.”
I offer the Minister a frank remark that is intended to be helpful. If, when he next negotiates with the Treasury, rather than accepting all its endless requests for short-term public spending cuts, he could pay a little more attention to the scope for bringing money in under the fines—the same issue arises on fee collection—some of the public expenditure cuts, which I am sure that he is not particularly happy about implementing, would not be necessary. If £1.5 billion of fines—a large sum of money—are outstanding and £500 million is recoverable, he should look at doing something to get that money in quickly.
I shall give the Minister a further piece of advice: he should talk to his colleagues in the Department for Work and Pensions, because the child maintenance executive, which has a similar problem of large amounts of outstanding money, has looked into securitising the loans so that the Government get their money now and someone else takes on the liability and responsibility for collecting them. With that significant improvement in the Department’s finances—£500 million is a lot of money—perhaps some other things that the Minister has to do would not be necessary.
We cannot see a rationale in justice terms for the proposal. The only rationale that we can see is that fines are cheaper in the short term for the Government to administer. They want to save on probation and prison resources by using fines as a penalty. We believe that it is wrong to do that and wrong to make those cuts. We also believe that they can recover that money and should have a proper strategy for it. That is why we have tabled the amendments.
Mr Blunt: The amendments seek to amend clause 56 to remove the power from the magistrates and Crown courts to impose a fine of £2,500 for the breach of a community order. The Government, along with the Magistrates’ Association, believe that the addition of a fine to the current options for dealing with a breach would be valuable in ensuring that offenders face the appropriate response for failing to comply with a community order. The only area in which the Magistrates’ Association is at odds with us is the sum of the fine. However, it supports the proposal in principle.
At the moment, an offender who is fined by a court but fails to comply with any of the requirements of their community order must be dealt with in one of two ways set out in statute. The court must either vary the existing order by making its requirements more onerous or revoke the order and resentence the offender as if they had just been convicted of the original offence. The hon. Member for Hammersmith made that point.
Clause 56 will extend that limited menu by adding the option of a fine of up to a maximum of £2,500. That is a straightforward punishment for failing to comply with a community order. It is important to remember that the community order will run on unchanged. The clause is self-evident good sense. The offender does not get out of the community order by breaching and paying a fine. That will bring home to offenders the importance of adhering to the terms of their sentences and improve compliance. It will also make a clear statement to the public that failing to comply with the orders of the court will be dealt with severely, if that is the right response.
The clause will also allow the courts to let the offender complete the original order as imposed. I understand that the hon. Member for Bishop Auckland supports that part of the clause, which will give the courts more freedom than is currently the case to turn the offender away from the crime, if that is more likely in a particular case. That course of action used to be available, as was the fine, but both were removed by that outstanding piece of legislation, the Criminal Justice Act 2003. We now propose to reinstate them. Both options already exist for juveniles.
The rest of the hon. Lady’s remarks were about the apparent inability to recover fines. The evidence produced in support of her arguments and the helpful quote by the Law Society were as good a condemnation of the wretched inheritance that we received from the previous Administration as one could hope to hear in Committee. I am grateful for her helpful advice about how we can address the mess with which we were left.
Mr Blunt: No, I will not. As a Member who supported the previous Administration, and as a lawyer, the hon. Member for Hammersmith should have known better. We are absolutely in the business of improving recovery of fines. The Under-Secretary of State for Justice, my hon. Friend the Member for Huntingdon is considering all ways of doing that and we will be receptive to all useful suggestions to address the shambles of our inheritance, from whichever quarter.
I trust that the hon. Member for Bishop Auckland will accept the arguments in favour of fines for breaches of community orders, which will restore the situation to what it was before 2003. It will also have the quantum of making clear that the measure is a serious, punitive option for magistrates to use when people will not complete their community orders.
Helen Goodman: We entered into the debate in Committee with a constructive spirit, intending to be helpful to the Minister. We can argue about who is responsible for what has happened in the past, but it is
Having heard the Minister’s explanation about the practical operation of introducing fines, I still believe that there is a small loophole, as does my hon. Friend the Member for Hammersmith. I am pleased to hear the Minister’s assurances, however, and I beg to ask leave to withdraw the amendment.
‘( ) In that paragraph, after sub-paragraph (3A) insert—
(3B) A fine imposed under sub-paragraph (1)(aa) is to be treated, for the purposes of any enactment, as being a sum adjudged to be paid by a conviction.”’.
‘( ) In that paragraph, after sub-paragraph (3A) insert—
(3B) A fine imposed under sub-paragraph (1)(aa) is to be treated, for the purposes of any enactment, as being a sum adjudged to be paid by a conviction.”’.—(Mr Blunt.)
Helen Goodman: Amendments 305 and 307 are designed to keep the length of a suspended custodial sentence at 12 months. Amendment 306 would keep the requirement for a community order alongside a suspended sentence. I add, however, that we received evidence on that matter from Louise Casey, the victims commissioner, and from the former Solicitor-General, who is sadly no longer in the House. Amendment 308 would challenge the clause’s retrospective nature.
The proposal to extend the length of a suspended sentence order to two years brings within the scope of such orders some serious crimes for which, the Opposition believe, people who are found guilty should be punished. It will again look to the public as if people are being let off, especially given the proposal to drop the requirement for a parallel community order alongside the suspended sentence order.
I shall give some examples from the sentencing guidelines of crimes for which an SSO would be available under the proposals: actual bodily harm; premeditated assault resulting in relatively serious injury; robbery; a weapon produced and used to threaten force, and/or force used which results in injury, for which current sentences can be as low as two years; theft from a vulnerable person involving intimidation or threat of force or deception, for which the starting point for sentencing is 18 months; public order section 4 offences that are racially aggravated, for which two years is the maximum; benefit fraud by professional fraudsters organising large-scale fraud in which millions of pounds can be at stake, for which the sentences can be two years; making a false statement to obtain a passport, for which the starting point is 18 months; involuntary manslaughter; and sexual assault by penetration with a body part where no physical harm is sustained and the victim is over the age of 16.
Mr Buckland: Those are examples of sentences that are imposed by guidelines recommended by either the Sentencing Guidelines Council or the Court of Appeal. This morning the hon. Lady talked eloquently about the plight of women and their position in the criminal justice system. What would happen if a single mother, who was the sole carer of her children, came before the court on a benefit fraud involving a guideline with a sentence of two years? Will not the proposal to extend the suspended sentence provisions help the courts’ discretion in dealing with difficult positions involving single parents caring for children? Can she respond to that fundamental dichotomy at the heart of her argument, and indeed of what she seems to be advancing as her party’s policy?
Helen Goodman: I am grateful to the hon. Gentleman for that example. There will always be difficult decisions. I think I made it clear in my remarks about children that there would always be people who had committed extremely violent offences, and were perhaps a danger to their children, who needed to be in custody. My point, however, which I am sure the hon. Gentleman understood, was that at the moment 85% of women in prison are there for non-violent offences. Many of the offences that I was listing for the hon. Gentleman are violent ones, and this matter will cause extreme concern.
Furthermore, as I also made clear in my opening remarks, the other problem with the clause is that it will no longer be required to have a community order to address the sort of issues that the hon. Gentleman was talking about, in the waiting time—I cannot think of the technical word—for the suspended sentence order. The approach in the clause is, I am afraid, risky and weak.
Mr Slaughter: The hon. Gentleman’s point might be more valid if suspended sentences were now given, as they used to be, in exceptional circumstances. He has picked on an exceptional case. Suspended sentences are becoming more common; they seem to be given more regularly as a more usual part of sentencing procedure. My hon. Friend may or may not agree with my cynicism, but I am afraid that the provision, like many in the Bill, is more about getting people out of prison and bringing the bill for custody down than about anything else. That is what lies at the heart of this amendment, not the sincere compassion of Government Members.
Helen Goodman: My hon. Friend gets to the core of the matter. Many measures in this part of the Bill are designed to reduce the financial burden on the Ministry of Justice, irrespective of the long-term implications for people’s offending behaviour, of whether or not justice is done and of how they will be seen by the general public.
Let me make it clear to Members on the Government Benches that when I refer to the sentencing guidelines, I am not taking up some kind of theoretical position. I have also had a look at what is going on in sentencing, by which I mean the length of sentence that people are getting for different crimes and the possibility that some of those crimes will now move into the scope for being suspended.
Unfortunately, because of the way in which the Ministry collects the figures, we cannot see them between 12 and 24 months. Figures are collected between 12 and 18 months and 18 and 36 months, but the 12 to 18 months period is a good proxy for the zone that we are looking at. The crimes include threat or conspiracy to murder, manslaughter and causing death by reckless driving. I was interested to see that they included reckless driving because my hon. Friend the Member for Kingston upon Hull East has a proposal to beef up the sentencing for that crime, which I thought that Government Members were minded to support. It seems that there is some inconsistency about the matter.
The list goes on to cover wounding or endangering life, cruelty to children, child abduction, rape, sexual activity with a child under 13, abuse of children through prostitution, and burglary in a dwelling. Then we move on to the white collar crimes. They include fraud, false accounting, forgery, production and supply of class A drugs, kidnapping and firearms offences—firearms offences are in the wrong category and should be under violent offences. The point that I am trying to make is that hundreds if not thousands of perpetrators of serious crimes could get away with neither a community order nor any time in prison.
Mr Buckland: I am sorry. I am not rising in anger, but with a mounting sense of concern. The hon. Lady is positing examples, including serious offences of rape, to try to draw the Committee to the conclusion that, because there is an increase in a discretion to allow suspended sentences, serious crimes will be subject to suspended sentence orders by Crown court judges. I caution her to take very great care in allowing us to jump to that conclusion. It would be wholly wrong and a complete caricature of the Government’s proposal.
Helen Goodman: I am not trying to caricature the Government’s proposal because, to be honest, we have not had much data from the Government. Perhaps the Minister will be able to tell us which categories of crimes he believes will now fall within the suspended sentence order rules. All I can do, and I am sorry if this does not satisfy the hon. Member for South Swindon, is look at what is going on at the moment, look at the current guidelines and draw attention to the risks that may follow. There seems to be something rather incoherent in saying that a crime is so serious that the sentence, if the person went into custody, is two years and that this
Jessica Lee (Erewash) (Con): On the point about coherence, it is useful in these debates to stick to more evidence-based proposals or suggestions. The concern is that with this list of offences we are moving into the realms of speculation by mentioning serious offences where the prospect of them being part of a suspended sentence is completely removed from what will happen.
Helen Goodman: I am concerned about these risks. All I am doing is reflecting to Government Members offences where people are currently getting sentences of between 12 and 18 months and pointing out to them that if the rules are changed on suspended sentence orders, this is what may happen.
Anna Soubry: Will the hon. Lady make it absolutely clear, and could Hansard record, that people who are convicted of rape do not get sentences of 12 to 18 months? Neither are those sentences given for serious violence or offences such as kidnapping, and rarely for manslaughter. I could go on. It is a spurious argument that does not advance the debate, and it is extremely misleading to any member of the public who is here or who reads Hansard. It does the hon. Lady no credit, with respect.
Helen Goodman: I am sorry. The hon. Lady is wrong about that. I have the numbers here, and I will tell the Committee, because I was amazed when I read them. Ten people got between 12 and 18 months for child abduction. For sexual assault on a male,15 people got between 12 and 18 months and 31 people got between 18 and 36 months. For rape of a female, one person got between 12 and 18 months and 50 people got between 18 and 36 months. For sexual assault on a female, 131 people got between 12 and 18 months and 257 people got between 18 and 36 months. For sexual activity with a child under 13, 20 people got between 12 and 18 months and 32 people got between 18 and 36 months.
Ben Gummer: I am grateful to the hon. Lady for giving way. As someone who does not practise at the Bar and does not sit on a bench, I have considerable concern about the way that this debate is going. We are dealing with a difficult Bill. I do not want it ending up in territory where we might be misleading the public. A whole series of offences have been cited. We have no idea of the context or the judgments. We may end up in
Helen Goodman: It is perfectly open to the Minister to explain to us which crimes he thinks will be covered that are not covered at the moment. I look forward to hearing about it. I wish that more had been published in the impact assessment, because there was almost nothing about this. Nor was there anything in the impact assessment about the financial savings and the reduction in prison places that the Government are expecting from the measure. If the Minister has better data than mine, which are simply the Ministry of Justice’s own published information, I look forward to hearing them.
Mr Buckland: All right, two cases. We have to be very careful, because we do not know the full facts of those particular cases. My main point, however, which may reassure the hon. Lady, is that all sexual offences are covered by the Sentencing Council’s guidelines. The starting point for a serious sexual offence is always a term of custody. There are ranges of terms of imprisonment between high and low. The guidelines, to which sentencers must have regard, are to start at terms of imprisonment and then apply mitigating factors that would draw the court back below the custodial threshold. I say again that we should be careful before jumping to the conclusion that increasing discretion in such matters will somehow lead to unduly lenient sentences being passed in serious cases.
Helen Goodman: The hon. Gentleman obviously has not looked at the statistics. I remind him what I told him in the first place. The second category was people sentenced to between 18 and 36 months. As we have understood it, some of those people, although not all of them, will fall within the new rules. To take the example of rape of a female, the number is 51. I am raising questions and pointing out risks. That is the job of Her Majesty’s Opposition.
Mr Watts: My hon. Friend made an important point about serious crimes, or crimes that appear serious, and lenient sentences. The Bill could have an impact on sentences. She should not be put off by the excitement on the Government Benches. It is for the Minister to set out clearly which crimes will bring which sentences, so we should not back away from it. So far, the Bill is unclear, but we hope that the Minister will clarify exactly which crimes will bring which penalties.
Helen Goodman: I am grateful to my hon. Friend. I remind Government Members that one of the most liberal pressure groups in British civil society, the Prison Reform Trust, also opposes the clause. It is not some eccentric frolic of mine. I also remind the Minister that as well as asking him which crimes he thinks will be
Kate Green: I shall be brief. Will the Minister respond to three questions? First, as my hon. Friend the Member for Hammersmith said, suspended sentences have gone in and out of fashion over the years, and if one looks at Government proposals in recent years, it seems that they are more in fashion now. Will the Minister explain the purpose of the change to the legislation and what he seeks to achieve through longer periods of suspension in relation to sentencing objectives? Does he see it as an opportunity for more rehabilitation, or are there other sentencing objectives that he seeks to achieve? I am confused about the purpose of the proposition.
Secondly, what is the Minister’s view on the likely level of compliance with longer periods of suspension? I am sure that none of us wants to set up people to fail. That is a completely pointless approach to criminal justice. I would be grateful if he would tell us what assessment he has made of likely compliance levels with longer periods of suspension. Thirdly, what assessment has the Minister made of the impact on reoffending rates?
Mr Blunt: I am grateful to my hon. Friends for their interventions while the hon. Member for Bishop Auckland presented her case. They illustrated clearly and with my full support the fact that she has uncharacteristically taken this debate in the wrong direction regarding the Government’s underlying intentions. I will be happy therefore to address her questions and those of the hon. Member for Stretford and Urmston.
The clause is consistent with widening the discretion of courts to impose suspended sentences, and the amendments would remove the effect of clause 57 and the proposed changes. Currently, the courts can only suspend a custodial sentence of less than 12 months. They are required to impose at least one community requirement. We are proposing to allow the courts to suspend a sentence of up to two years and to give them discretion as to whether any community requirement needs to be imposed.
Suspended sentences can be a useful tool for the courts and we want to ensure that they make the best use of them. Offenders on suspended sentences have a lower reoffending rate than those sentenced to immediate custody of less than 12 months. Any offence meriting up to two years’ custody could potentially attract a suspended sentence, but it is entirely at the discretion of the court, taking account of all the circumstances of the case as to whether a suspended sentence is appropriate. This is of course the same position as now for offences receiving 12 months or less.
It is the judiciary who have said that they consider it unlikely that they would impose many long suspended sentences, but the option to suspend a sentence of up to
Helen Goodman: The hon. Gentleman knows perfectly well that the rules for giving suspended sentences were completely different before the 2003 legislation. This is now being done in a different context where different considerations apply and different rules govern the giving of suspended sentences. Today, there are some 46,000 people getting suspended sentences. At the point when the periods were long, the numbers were under 10,000—I think they were about 6,000; it is a totally different situation.
Mr Blunt: I have already made it clear that we would consider it relatively exceptional to use suspended sentences of such length, but we think it right to return to the position before the 2003 Act to give sentencers discretion. We also think it right that we should actually trust our sentencers and give them appropriate discretion instead of saying that they must impose a requirement whether or not it is appropriate in their judgment. As I have made clear, we do not expect this provision to be used very often.
Mr Blunt: I was asked for examples. If the court considers that the offender has an uncharacteristic lapse of judgment, but is unlikely to reoffend and has an unblemished record, the threat of custody is likely to be sufficient incentive to make sure that that offender does not stray on to the wrong side of the law in future.
Mr Slaughter: If the Minister is saying that suspended sentences in excess of 12 to 24 months will be given in exceptional circumstances, that is not what the clause says. If he is saying that it is expected—or even if he is trying to give guidance to the judiciary—that these sentences will be used very rarely indeed, I am afraid that that is not good enough either. I have entire confidence in the judiciary to exercise their powers, but that is not what we are talking about. Offences that can attract two-year custodial sentences are likely to be serious offences. It is the Government’s job to decide whether they are appropriate in respect of the broader range of sentences and whether it is right in such circumstances to allow those sentences to be suspended. The Minister cannot wriggle out of that.
Mr Blunt: It is not a question of wriggling out of anything. The hon. Gentleman is implying that anyone who gets a two-year custodial sentence will have it suspended. Of course, that will not be the case. We are
Anna Soubry: It is effectively a sword of Damocles. The defendants know that should they breach that period of suspension, the full two years will come down upon them and that they will go away—[ Interruption. ]
Mr Watts: I do not like to disappoint the hon. Gentleman. Is it not the case that if someone has a 12-month sentence suspended or someone has a 24-month sentence suspended, by its very nature the sentence of 24 months must be for a more serious crime? By giving that flexibility, there will be more suspended sentences for more serious crimes. Is that likely to improve people’s view of the justice system?
Mr Blunt: The purpose of the provision is to improve the delivery of justice. It is appropriate for Parliament to give wider discretion to sentencers and to restore them to the position they were in before the 2003 Act. There is a difference in approach between the Government and the previous Administration, whose sentencing reforms took things in an extremely prescriptive direction. We believe that we can expect our judges to uphold the law and give appropriate sentences. The general direction of travel is then to give them more discretion, and the provision is part of that process. It will give them greater ability to do justice.
I return to the community requirements. At present, the court has no choice but to impose a requirement even when there is no obvious rehabilitative need to be addressed. Again, such cases are unlikely to arise often, but it makes no sense to waste scarce resources when the court determines that they are unnecessary and that the sword of Damocles held over the person, as my hon. Friend the Member for Broxtowe suggested, is sufficient.
We have to remember that a suspended sentence without requirements does not mean that the offender has got off. The sentence is recorded as a custodial sentence, as are the consequences that flow from it, and the threat of custody hangs over the offender for up to two years. I assure members of the Committee that having a two-year custodial sentence on someone’s record is an extremely serious matter. Giving the courts additional discretion will allow them to target suspended sentences to best effect. I trust that the Committee will accept my reassurances, particularly with regard to the context in which we expect sentencers to use the powers, and that the hon. Lady will withdraw amendments 305 to 308.
Helen Goodman: I said that we would not the criticise the increase in discretion under the clause. I am disappointed that the Minister has not answered the basic question about which we had most debate: which further crimes can now be punished with a suspended sentence order? It is no good Government Back Benchers saying that is a side issue or a non-issue, when the Minister has been completely incapable of giving us any further information about what will actually go on. I am sorry to say that I do not think that is an adequate basis for legislation.
Nor am I satisfied with what the Minister says about community orders. The truth is that a person who commits a crime and gets a suspended sentence order might not have a community order as well. Although there is a stigma attached to having a criminal record, a person who commits a crime serious enough to carry a two-year custodial sentence might receive no serious or adequate punishment. Furthermore, if someone does not have a community order running alongside the suspended sentence order, the only breach that will send them to prison is another offence.
The Minister made much of the group of people who have unblemished records and who, in a moment of amnesia, commit a crime that carries a custodial sentence of two years. I hope he will remember that the list that I read out of crimes covered by the measures included false accounting and fraud. That is the Guinness defence; it is precisely what was argued in the Guinness case. People had expensive lawyers who could put up good defences and say, “It was a moment of amnesia.” It is precisely such white-collar criminals for whom that will be the biggest loophole.
Nor has the Minister answered my questions about what the cost savings will be, how many prison places will be saved—in other words, how frequently he expects the powers to be used—or why the measures are retrospective.
Mr Blunt: I have made it clear that infrequently is the context. On the issue of retrospection, where a person has committed an offence but not been convicted and sentenced before the commencement of the provisions, modifications to the suspended sentence will be available to the court.
Tom Brake: I intervene because I am having difficulty reconciling the hon. Lady’s remarks with her earlier approach to community sentences, which I thought was constructive. She accepted the evidence base for them and accepted that they were about flexibility, yet in relation to suspended sentences, she seems to have gone off in a completely different direction.
Mr Blunt: The reason why the hon. Lady has not been able to identify savings in the impact assessment is that we do not expect the provision to be used frequently enough to register any savings to the criminal justice system. We expect use to be rare and certainly not sufficient enough to see a reduction in the general level of the requirements on custodial sentences.
Helen Goodman: I am interested in what the hon. Gentleman says, but if one looks at the statistics of what happened between 2003 and now, one can see that—I do not know what the word is—the number of people receiving suspended sentence orders when the rules changed increased sevenfold. Labour Members think that that is a risk too far, so I will press amendments 305 and 306 to a vote.
‘Armed Forces Act 2006 (c. 52)
The Armed Forces Act 2006 is amended as follows.
(1) Section 200 (suspended sentence orders with or without community requirements) is amended as follows.
(2) In the heading omit “with or without community requirements”.
(3) Omit subsections (1) to (4) (power of relevant service court to make suspended sentence order with or without community requirements, and meanings of those terms).
(4) In subsection (5) (modification of section 189(1) of the Criminal Justice Act 2003 in its application to a relevant service court)—
(a) for “(b)(ii)” substitute “(a)”,
(b) for “the end of sub-paragraph (ii)” substitute ““imprisonment),””, and
(c) in the words treated as substituted, for “(a)” substitute “(i)” and for “(b)” substitute “(ii)”.
(5) After subsection (6) insert—
“(7) In this Chapter “a suspended sentence order with community requirements” means a suspended sentence order that imposes one or more community requirements within the meaning of section 189(7)(c) of the 2003 Act.”
Omit section 201 (provisions of the Criminal Justice Act 2003 that do not apply to suspended sentence orders without community requirements).
In section 207 (definitions for purposes of Chapter 4 of Part 8)—
(a) in the definition of “suspended sentence order with community requirements” for “200(3)” substitute “200(7)”, and
(b) omit the definition of “suspended sentence order without community requirements”.
(1) Schedule 7 (suspended prison sentence: further conviction or breach of requirement) is amended as follows.
(2) For the heading before paragraph 1 substitute “Modifications of Part 2 of Schedule 12 to the 2003 Act”.
(3) In paragraph 1 (modifications of Part 2 of Schedule 12 to the Criminal Justice Act 2003 in case of suspended sentence orders with community requirements) omit “with community requirements”.
(4) Omit paragraph 2 (modifications of Part 2 of Schedule 12 to the Criminal Justice Act 2003 in case of suspended sentence orders without community requirements) and the heading before that paragraph.
(5) After paragraph 6 insert—
6A Paragraph 8(2)(ba) of that Schedule has effect as if at the beginning there were inserted “where the court dealing with the offender is the Crown Court,”.”
Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 (SI 2009/1059)
In Schedule 2 to the Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 omit paragraph 2(2) (modifications to section 189 of the Criminal Justice Act 2003 pending the commencement of the repeal of section 78 of the Powers of Criminal Courts (Sentencing) Act 2000).
Armed Forces Act 2011
In Schedule 3 to the Armed Forces Act 2011 (minor amendments of service legislation), in paragraph 17 (amendment to section 200(5) of the Armed Forces Act 2006) omit “paragraph (b) of”.’.—(Mr Blunt.)
‘after sub-paragraph (4) insert—
(4ZA) A fine imposed under sub-paragraph (2)(ba) is to be treated, for the purposes of any enactment, as being a sum adjudged to be paid by a conviction.”,’.—(Mr Blunt.)
Helen Goodman: I shall explain to the Committee why I will ask my colleagues to vote against clause stand part. Many of the arguments that we had on the amendments to clauses 56 and 57 are compounded in this clause. In essence, by including serious assaults, robberies, frauds and violent crimes against children in extended sentence orders, the Minister is proposing to allow breaches of these suspended sentence orders to be penalised with a fine. As the Magistrates Association said:
It is not an appropriate way in which to deal with the breaches if people have committed offences for which they have received a two-year sentence. It demonstrates that the Government are not taking a serious view of the impact of serious crime on communities.
Will the Minister tell us how frequently he expects this provision to be used; what the reduction in the prison population will be; and what the cost benefits will be to the Ministry of Justice? The figures in the public domain from his own Department show that under the current, more limited regime, the proportion of suspended sentence orders breached is around 12% and the proportion of cases in which the person is convicted of another offence is around 15%. It appears as though more than a quarter of those receiving the suspended sentence orders would be liable for a fine in the event of these breaches.
Currently, there are some 50,000 suspended sentence orders. The Minister’s proposals will increase that number. He hopes—we all hope—that there will not be a significant increase. He says that he is confident that that will be the case, but Opposition Members are not quite so confident. In any event, what we might expect is 12,000 breaches each year, a large number of which will undoubtedly be dealt with by a fine. We do not believe that victims will find that satisfactory or that it will be acceptable to the public. I do not wish to repeat what I said previously, but I am sure that the Minister will understand that the Opposition will vote against this clause.
Mr Blunt: Clause 58 is intended to increase the court’s discretion in dealing with the breach of a suspended sentence order. At present, there is a presumption that where there is a breach of the order, the court will give effect to the custodial sentence unless it would be unjust to do so in all the circumstances. We have no plans to change that position. However, where the court does not give effect to the custodial sentence it must at present make the order more onerous either by amending the community requirements or by extending the
The measure sits alongside our general trend of introducing greater discretion, including in the use of suspended sentence orders, by providing such orders without the imposition of community requirements. In such circumstances, if a court decided not to give effect to the custodial sentence for a breach, the only other penalty available would be to extend the operation of the order. The availability of a fine for a breach will therefore be a useful alternative penalty for the courts.
We do not expect fines to be routinely used as a penalty for breach, because in the majority of cases a breach of a suspended sentence order should and does result in a custodial sentence being given effect. However, the availability of fines provides the courts with more discretion in deciding on the appropriate penalty for a breach in each case.
‘( ) In section 177(2) of the Criminal Justice Act 2003 (community orders: restrictions relating to particular requirements) omit paragraph (c) (which refers to section 202(4) and (5) of that Act).
( ) In section 190(2) of that Act (suspended sentence orders: restrictions relating to particular requirements) omit paragraph (c) (which refers to section 202(4) and (5) of that Act).’.
Mr Blunt: Amendments 250 and 251 are technical amendments to clause 59, which will amend section 202 of the Criminal Justice Act 2003 in relation to programme requirement orders. They will repeal provisions in sections 177(2) and 190(2) of the 2003 Act in consequence of the changes made within clause 59. These consequential changes were drafting oversights that should have been included in the Bill.
‘the Criminal Justice Act 2003’
‘(5A) After subsection (7) insert—
(8) The probation trust for each area must—
(a) make provision for the availability of programmes appropriate for offenders of varying levels of intellectual ability and understanding, and
(b) ensure that the content and style of the programme in which an offender participates is appropriate to the intellectual ability and understanding of the individual offender.
(9) A public body imposing an order as laid out in this section shall have a duty to take all reasonable steps to ensure that the terms and requirements of the order are understood by the recipient of that order.”.’.
Helen Goodman: Amendments 310 and 311 would delete the leaving out of accredited programmes and would make a consequential change. Amendment 312, which relates to making provision for people with learning disabilities, is rather different.
The purpose of amendments 310 and 311 is to retain the use of accredited programmes. We accept the proposal in the clause that there can be flexibility where a person attends or undertakes a community programme. However, I have a question for the Minister: will there be any rules or limits on travel time? It would not be acceptable if a person was expected to travel long distances, as people could be dependent on public transport, and would incur significant costs. I am sure that he has thought of that and will have worked out the limits on travel time, and I hope that he will be able to tell the Committee.
It is important to retain accredited programmes, because the evidence shows that they are effective in reducing reoffending. Further to the point made by the right hon. Member for Carshalton and Wallington a moment ago, in our consideration of the amendments to the clause, we are looking primarily at what can best be done to reduce reoffending and improve rehabilitation. Currently, the reconviction rate for people on short-term sentences is about 66%. For people who are supervised by the probation service, it is about 50%, and if the person is on an accredited programme as well as going
Given that accredited programmes and custody are considerably more effective than other ways of dealing with people, one is bound to ask for the reason behind the Government’s actions. I am sorry to say that the only rationale that we could come up with was to facilitate the Government’s programme of privatisation and contracting probation services out to the private sector. As I understand it, they want to follow a black box approach, which means that there will be no rules about what is done with people and everything will be measured on payment by results. The Minister talks about payment by results, and I will respond to him on that, except that I will not do it at this juncture, because I am not convinced that that is strictly necessary.
The risk of not having accredited programme and of contracting out the running of community programmes, which is currently done by a professional probation service, to the private sector is that such programmes will instead be run on a large-scale and cheap basis that is not attuned to the different needs, characteristics and learning styles of offenders. If that happens, the programmes will not work and we will see crime go up again. That is another example of the short-termist approach that the Government have taken to the criminal justice system—low costs now, risking higher costs to the community later. The abandonment of accreditation, which most private sector organisations will not be able to offer, will mean that such organisations can put in cheaper bids than the probation trusts, which have higher professional standards.
I am not saying that the accreditation system run by the Ministry of Justice panel cannot be simplified; I think it can be. However, abandoning standards in the area is risky and inappropriate. In 2009, 22,400 people were on community orders with accredited programmes; 12,500 were on suspended sentence orders with such programmes; 18,500 were on drug and alcohol programmes with community orders; and almost 7,000 were on drug and alcohol programmes with suspended sentence orders. That makes a total of 60,000 people. I described levels of effectiveness on reconviction rates: the difference between running and not running accredited programmes might be as much as an additional 20,000 crimes a year. The proposal is therefore a worthwhile approach.
I briefly remind the Committee of the principal accredited programmes. Thinking Skills aims to reduce impulsive behaviour and improve problem solving. I cannot help thinking that some such programmes would be useful for Members of this House. The drink-impaired driving programme addresses the causes of drink-driving and aims to avoid its repetition. A low-intensity alcohol programme tackles moderate problem drinking. A community drink-violence programme is different in that it addresses the relationship between alcohol and violence, relating particularly to binge drinking. The latter three are interesting because they demonstrate that thought has been given to the different sorts of crime and patterns of behaviour, and care has been taken over the need to address those in different ways.
Mr Blunt: The clause does not remove accredited programmes. Its object is to make it easier for offender managers to exercise professional judgment in deciding what is the most appropriate accredited programme for an offender, while maintaining judicial control over the broad content and length of the requirement. Does the hon. Lady accept that assurance and will it persuade her to conclude her arguments?
Helen Goodman: I need a little more than a two-sentence explanation, because that is not our understanding of the Bill. We want a better explanation of the clause from the Minister. We have received strong representations on the matter from the Prison Reform Trust and the National Association of Probation Officers, which share our reading of the clause.
Ben Gummer: On the point about probation officers, this is the clause that excites many people in my constituency, who are pleased with their additional power to manage offenders as they see fit. The measure is part of the broader purpose of the Bill, which is to give greater discretion to professionals. I am beginning to see a divergence between Her Majesty’s Opposition and Her Majesty’s Government.
Helen Goodman: I am grateful for that intervention. The Government could make a case about bureaucratic burdens on the probation service. The hon. Gentleman serves on the Justice Committee, which has considered the probation service’s role and has found that probation officers are too tied up in bureaucracy. That is a valid criticism. It is true that officers do not have enough face-to-face time with clients. Too much report-writing and, as Government Members would call it, box-ticking is a problem that must be addressed. I also agree that we must broaden the scope for professional judgment in the probation service.
Kate Green: Does my hon. Friend agree that our aim is not to fetter professional judgment and discretion, but, from our reading of the clause, we are concerned that accredited programmes should be accredited because they have a demonstrable and evidenced effect on reoffending? Surely that is the crucial point.
Helen Goodman: My hon. Friend is absolutely right because nothing that we are saying prevents probation officers from exercising their professional judgment in their normal supervision of offenders, regarding which programmes they recommend for people or what they put in pre-sentencing reports.
Mr Blunt: The intervention by the hon. Member for Stretford and Urmston is extremely helpful because it makes it clear that people should be on programmes that are properly evidenced. If someone happens to be on the wrong programme or, in the opinion of their offender manager, could be on a better one, we offer precisely that flexibility to the offender manager, without having to return to court. I agree with the hon. Lady that things need to be done on the basis of evidence, and it is common sense that we give offender managers the opportunity to make such a change.
What is not clear from what the Minister says is why if a programme is backed up evidentially as being effective it does not become accredited, so I will wait to hear what he says about that, and consider his response. We need to be careful that the Minister’s well-intentioned plan to improve flexibility is not at a later stage used simply as a cost-cutting measure. The Opposition are conscious of the fact that the probation service in some areas faces 10% cuts this year. We agree with the Minister that community orders and rehabilitation need to be effective, but I am not yet convinced that what he says is what is in the Bill, nor am I convinced of what its effect would be.
Amendment 312 relates to programmes for people with learning difficulties. Significant numbers of people entering the criminal justice system have learning disabilities, and the amendment is designed to ensure that they understand what is required of them and that there are programmes they can do. Both of those things are necessary because it is pointless for people to do things that do not work—it is a waste of their time and our money—and if they do things, or do not do things, that they do not understand, they will spiral downwards.
In its evidence to the Committee, Mencap stated that it was particularly keen to see the change outlined in the amendment. Young people accessing its “raising your game” project said that they had difficulty, at the moment, in understanding where they had to be and when they had to be there. It would be wrong if because of a lack of appropriate provision people with learning disabilities were excluded from community orders and unnecessarily sent into custody. Unless reasonable adjustments are made, this group of people will be unfairly sanctioned and more of them will end up in custody.
It might help if I first explained what the clause seeks to achieve. I want to make it clear that it does not remove accredited programmes. It amends section 202 of the Criminal Justice Act 2003, which is the provision governing the programme requirement of community orders and suspended sentence orders.
The clause reduces the amount of detail that a court must specify when imposing a programme requirement as part of a community order or a suspended sentence order. The aim is to make it easier for offender managers to exercise their professional judgment about what is the most appropriate accredited programme for an offender while maintaining judicial control over the broad content and length of the requirement.
Kate Green: I want to be absolutely clear that the Minister is saying that all programmes will be accredited and the discretion for the probation officer is to choose which accredited programme, and that that is the thrust of the clause.
Mr Blunt: That is the thrust of the clause because, at present, when a court believes that an offender should participate in a programme requirement, it must by law specify the particular programme, the place where the offender must go to participate in the programme and the number of days that they must attend the programme. However, it sometimes becomes clear soon after the offender has started a programme that a different course or programme would be more likely to deal with their problems and turn them away from crime. For example, the offender could have been sent on an anger management course but it soon becomes evident that the problem is with domestic violence. Currently, the only way to change programmes is to take the case back to court with an application for the programme to be changed. That is bureaucratic and takes time. The clause will allow the offender manager to make the change without the necessity of going back to court, but that does not mean that the offender manager is effectively sentencing the offender. The court will still require the offender to take part in a properly accredited programme and it must still specify the number of days that the offender must participate in the programme. I hope that that gives the hon. Member for Stretford and Urmston the assurance that she was seeking.
Because the court will not know the exact programme that the offender will follow, it cannot specify the location and the clause reflects that, which takes us on to the question that the hon. Member for Bishop Auckland asked about travel. The clause makes no changes to how offenders travel to attend programmes. It is up to the offender manager and the offender to agree what is reasonable in the circumstances of the case and that is plainly appropriate. The law will still require any place where the offender is sent to be properly approved and it will still require the offender to comply with instructions from his responsible officer and anyone running the course that they are on.
Amendments 310 and 311 would reinstate into section 202 provisions that only make sense where a court is specifying a particular programme, which courts will no longer do. For example, a court cannot be required to check that the course is available since it will not specify a course; indeed, the court will not even know which course the offender will be following. So these amendments would create duties that cannot possibly be complied with under the new arrangements and that therefore would be totally unreasonable.
At this point, I must say that I wonder who here is actually trying to support the probation officers in exercising their responsibilities to rehabilitate offenders most effectively? In that sense, I have been slightly surprised by the tone of the remarks by the hon. Member for Bishop Auckland, because anything that moves towards effectively enfranchising probation officers and giving them the necessary discretion to deliver the most effective programmes and the most effective outcomes for the people in their charge is an appropriate direction to take. The court will have made the appropriate disposition about the number of days that the offender is required to attend a programme and about the fact that the offender must attend a programme, but the clause is an absolutely sensible way of entrusting probation officers within the limits set down by the sentence of the court.
Amendment 312 would place statutory duties on both probation trusts and other bodies in relation to programme requirements. Those duties would require trusts to provide programmes for every level of intellectual ability and understanding, and they would require bodies imposing orders to explain their effect to offenders. These changes would either replicate existing law or prescribe a level of detail in the content and delivery of community orders and suspended sentence orders that is not appropriate to primary legislation.
In any case, every care is already being taken to ensure that programmes are tailored to the needs of offenders, including their intellectual capacity. I wonder what on earth everyone is trying to achieve regarding all these professionals who we entrust to deliver these programmes? The road to hell, in legislative terms, has been paved with good intentions over the last decade or 15 years, whereby we have over-prescribed the outcomes in Parliament. It has all been part of a direction of travel that has not helped the professionals on the front line who are trying to deliver. That is why we are making the changes, to get proper exercise of discretion at the appropriate level.
Courts are already under a statutory duty to explain to offenders in ordinary language and general terms the effect of the sentence imposed on them. In addition, responsible officers have a statutory duty to make any necessary arrangements in connection with offenders’ requirements and to promote compliance. In the case of a programme requirement, his duty must surely involve discussing with the offender what he must do and how he can best participate in the programme chosen for him in the light of his circumstances.
Helen Goodman: I am grateful to the Minister for that explanation. I am happy to withdraw the amendments, but I remark in passing that he might want to look at the explanatory memorandum and the impact assessment, because they were not clear—it was easy to misunderstand what was going on in the clause. I beg to ask leave to withdraw the amendment.
‘(4) After subsection (6) insert—
(7) Before making a relevant order imposing a curfew requirement, the court must obtain and consider information about any risk of physical or mental injury by or to the offender or an associated person which may be caused or increased by the imposition of a curfew requirement.
(8) In subsection (7) “associated person” means a person who is associated with the defendant within the meaning of section 62 of the Family Law Act 1996.”.’.
Helen Goodman: I do not think that there is much scope for misreading this clause, it is a lot simpler to understand. The amendment is about an extension of the amount of time in any 24 hours for which a person can be curfewed. The Government are proposing to increase the time from 12 to 16 hours. Our amendment seeks to hold it at 12 hours. Amendment 314 aims to strengthen the law on the impact that any curfew might have on other members of the household.
My main reason for moving the amendment is that, on this occasion, the Government have not been consistent on their rehabilitation objective. If people are curfewed for 12 hours, such as from 7 o’clock at night until 7 in the morning, it is still perfectly feasible to go to work, to attend a training course or even go to school—although young people’s things are different, so I will not confuse the argument. However, if we move to a curfew of 16 hours, it would be impossible for anyone to have a full-time job. I simply cannot see how that fits with what the Secretary of State has repeatedly said he wants people to do.
Mr Buckland: I remind the hon. Lady that the proposal is to increase the maximum period to 16 hours. Let us not confuse the concept of a maximum term with a constant imposition of the full term. It will not happen in every case, it is a matter of discretion.
Helen Goodman: For the whole afternoon, repeatedly, we have had Government Members saying, “We’ll legislate like this but, don’t worry, the judiciary won’t really use it.” That is not a proper basis for us to undertake legislation.
Mr Slaughter: The position is slightly better than in clause 12, when the Government said that they had no intention to use it whatever. At least they are only saying that they will hardly ever use it.
Helen Goodman: I am grateful to my hon. Friend. The argument that the provision will not be used much is not a sensible way for us to progress. We want people to rehabilitate and to have jobs. The Secretary of State has even said that he wants offenders in prison to do a full week of work and that he wants people on community orders who are unemployed to do a full week of unpaid work. The provision under discussion is not consistent with that. Although the hon. Member for South Swindon has assured me that the 16 hours will be used infrequently, it is highly likely that, if people are given curfews of 16 hours, it will be seen as an alternative to prison. In other words, it is another cheap option from a Department looking to save money.
In its review of curfews and tagging, the Magistrates’ Association said that, from the point of view of the offender, curfews have the disadvantage of loss of liberty, but no advantages in terms of security, bed, food and structure to the day. The Magistrates’ Association made it absolutely clear that it would view the longer curfews as an alternative to custody for what are called not-so-serious crimes. It also said that it has been using curfews in that way, in those instances, when the probation service is overstretched and as an alternative to unpaid work, and it is cheaper than unpaid work, too. It is not acceptable to give people curfews because Ministers want to stop building prisons and embark on a prison closure programme.
Furthermore, as I am sure the Minister is aware, the Department is sailing close to the wind on civil liberties. When Justice gave evidence to the Committee during the summer, it described curfews as “house arrest.” The Court of Appeal found that, in the case of control orders, an 18-hour curfew would be a breach of people’s human rights. I hope that the right hon. Member for Carshalton and Wallington will tell us what he thinks about the implications for civil liberties.
Once again, I refer the Minister to a Public Accounts Committee report, namely its 62nd report of the 2005-06 Session. It found that the curfews were great in financial terms, because they are approximately £70 a day cheaper than having somebody in prison. That is an annual saving of £25,000 a year per person put on a 12-month curfew, as opposed to sending them to prison. However, it also said—and this is undoubtedly true—
It also said that, at the moment—I do not think that things have changed since the report—no specific help is given to people with respect to training and work that would help their rehabilitation. The report also pointed out that families are not given the help and support they need to live with a curfewee. That relates to amendment 314, which aims to strengthen the consideration given by the Criminal Justice Act 2003 to the effect on relations with the rest of the family.
“courts should be specifically required to consider any potentially harmful impact on the offender and in particular any increased risk of domestic violence as a result of a curfew requirement. This would be particularly relevant where there is a history of domestic violence or abuse to dependants within the family.”
The second risk is the risk from the offender to the rest of the family. I do not know about the constituency of the hon. Member for South Swindon, but I can think of several cases in which mothers have had to throw out their 18 or 19-year-old children because of the bad
In considering extending the hours from 12 to 16 they should remember that curfews are highly likely to be used for people who do not live in large four-bedroom houses with nice gardens, and who are not like the WikiLeaks chap, who lived in a positive mansion when he was under a curfew. Most people under a curfew will be living in small flats, in overcrowded conditions. That is a major concern.
Mr Llwyd: I rise briefly to support amendment 313 and endorse everything that the hon. Lady has said about the extension of curfew hours from 12 to 16. It is of great concern to many organisations that that would amount to house arrest. The hon. Member for South Swindon says that 16 hours would be a maximum, and that is true, as 12 hours was previously the maximum, but there is grave concern that the power will be used more often than many Committee members imagine.
Poor educational achievement and unemployment are catalysts for offending, as we know. I wonder how a young person—or someone of any age—who is under a 16-hour curfew while looking for work, will come to terms with trying to get gainful employment or do something useful, without sliding back into crime.
We are reminded by Liberty that it is important for offenders to be given the opportunity to address their offending, and the provision seems to stand in the way of that. In the Green paper issued in March the Government envisaged the implementation of tough new measures in place of custodial sentences. I tend to think that that suggests things will veer towards the making of more 16-hour curfews, not fewer. That is not to say that the hon. Member for South Swindon is not sincere in what he says; but I think the underlying trend will not be towards minimal use, but the other way.
It is true that the deprivation of liberty involved in that imposition is less than in a custodial sentence, but several organisations, including Liberty, are concerned that, once legislation is passed to introduce new and excessive tagging and curfew powers, there will be few measures to ensure that they are used as a maximum, as intended. In the past, tougher community penalties have not always been used as an alternative to custody. Rather, they have been additional and possibly harsh punishments, available to courts in circumstances where a custodial sentence might not be appropriate.
Curfews of the proposed duration will make it difficult for individuals to hold down regular work or perform other useful functions. That will not do anything to rehabilitate anyone. This level of punishment in the community, which is tantamount to house arrest, is likely to have a further stigmatising effect thus preventing successful reintegration. Such requirements will disrupt family life, affecting not simply the individual concerned, but his or her family or those residing with the person, including siblings, children and so on. Despite accepting the sincerity of the indication that 16 hours would be a maximum, I am afraid that it would become almost the norm in many cases.
We are going into a completely unacceptable area of punishment, but whether it borders breaching human rights is another matter. Cases may well be taken on
Tom Brake: I have some reservations about the proposed extension of the potential curfew, but I underline the fact that there is discretion. I am sure that the Minister will have strong expectations, as I am sure all other Members have, that when the powers are applied, the impact of the curfew and the ability of the person to whom it is being applied, who may often be a very chaotic individual, to understand its implications and the implications of breaching it will be examined carefully. Therefore, a lengthy curfew will apply only when there is an appreciation that the person to whom it applies can respond to it appropriately.
Mr Blunt: We have a lot of guessing here. The intention is that the provision will replace sentences where people would otherwise have gone to custody. Several remarks have been made about the effect of having to live with an offender on a curfew in their home, but hang on a minute, what about the effect of living without the offender if the offender has gone to prison? That deprives a family of the principal breadwinner, and leads to all the rehabilitative consequences of having to put someone inside for a short sentence. I am not disguising from the Committee that the intention is to make community sentences, in terms of curfew, more punitive and better capable of protecting the public. That means that those sentencing people to the orders in the community can do so with greater confidence and the public can have greater confidence that the objective sentences will be met.
The hon. Member for Bishop Auckland and the right hon. Member for Dwyfor Meirionnydd may, in strict terms, have been mildly misled by my hon. Friend the Member for South Swindon, but his point is absolutely correct: this delivers flexibility and it is about a maximum.
However, there will be maximum use of the power. For example, if it replaces the sentence of someone who would otherwise have gone to prison due to concern about the threat they might pose to the public, and due to the punitive weight that the sentence required, it will be appropriate for it to be used.
On the point about 18 hours, the provision does not take us to that. Eighteen hours was found to be unacceptable for control orders, which are given to people who have not been convicted of a criminal offence. These are sentences of the court for people who have been convicted of a crime.
Mr Slaughter: What is the Committee supposed to do? Is it supposed to take the view of the hon. Member for South Swindon and the right hon. Member for Carshalton and Wallington or the completely contrary view of the Minister? Let us assume that we take the
Mr Blunt: It is not house arrest. House arrest requires a person to remain in the house all the time. It is a curfew requirement that is being increased from 12 hours to 16 hours a day. It is also being done to deliver the kind of flexibility to which my hon. Friend the Member for South Swindon referred. For example, one might choose to curfew someone for 16 hours at the weekend and curfew them for less during the week so that they can remain in employment and training, and therefore be less likely to become a permanent antisocial member of society.
Mr Buckland: Let us remind ourselves that if a maximum is imposed, that still leaves nine till five every day for an offender to be at liberty. There are still eight hours in the working day available to him.
Mr Blunt: We are considering allowing the court to impose 16 hours, and instead of the overall maximum length being six months, the court will be able to impose a curfew of up to 12 months. Enabling courts to impose longer curfews in this way will make a community order capable of being more punitive, and attractive as a suitable disposal for more serious offenders, possibly some who might otherwise have gone to prison. It will also increase the confidence of the public, who will see a community sentence regime that is more demanding and more likely to protect them.
Amendment 313 would remove the increase to the daily curfew amount, leaving it at a maximum of 12 hours, but I note that amendments have not been introduced to restrict the increase in the maximum duration of overall requirements to 12 months. The Government believe that increasing the maximum hours of curfew per day would give the courts more scope to use community orders to punish offenders, protect the public and encourage compliance. A curfew period of 16 hours could enable courts, for example, to curfew offenders for 12 hours overnight, as happens now, but also add a further period designed to ensure that the offender is at home immediately before a community payback session, for example, to increase their likelihood of attending those kind of programme requirements.
Amendment 314 would extend the existing duty of the courts to obtain and consider information about the possible effect of the curfew requirement. At the moment, before imposing a curfew requirement, the court has to consider the effect that the curfew might have on other people living at the curfew address. That relates to the domestic violence point that the hon. Member for Bishop Auckland adduced in support of her arguments. With longer curfews, one would accept that it would be even more important for the court to take account of the views of family members before setting the curfew hours.
The extension in amendment 314 is very wide. It would require the court to obtain and consider information about the risks of both physical and mental injury, of
I hope that the hon. Member for Bishop Auckland will be reassured and withdraw her amendment. I am absolutely clear that the measure is an important addition to our armoury. I am delighted to oppose the amendments and, of course, ensure that the clause becomes part of the Bill.
Helen Goodman: I preferred it when the Minister was not on the punitive side of the argument. This is deeply concerning. The Minister’s remarks have made me more worried than I was previously about the implications of the clause.
To revert briefly to an earlier argument, people go to prison to punish them with the hope of rehabilitation and to provide greater safety to the public. It is clear that, of the three aims that we have constantly to bear in mind, in looking at this, the Minister has focused solely on punishment, to the exclusion of the two other aims.
Mr Blunt: That is completely inaccurate. I made the point to the right hon. Member for Dwyfor Meirionnydd that this is a way of keeping someone in work and training who would otherwise have gone into custody. Keeping someone in work or training rather than sending them to prison is a critical part of ensuring that they can be rehabilitated.
Helen Goodman: I do not know what the Minister did before he was a Member of Parliament, but I have never had a job that I could travel to, do, and travel home from within eight hours. Most people do not have that. It is completely impractical. One minute the Minister talks about breadwinners; the next, he is giving people only eight hours. It does not stack up.
Furthermore, the Minister said that people should have curfews if they were a threat to the public, which concerns me. That suggests that that person has a tendency to behave in a violent and unpredictable manner. It is precisely because of that that we tabled amendment 314, which would strengthen the requirements on the court to address the other members of the household. I am sorry, but the Minister has not satisfied Opposition Members, so I will press the amendment to a vote.
Amendment proposed: 314, in clause 60, page 45, line 7, at end insert—
‘(4) After subsection (6) insert—
(7) Before making a relevant order imposing a curfew requirement, the court must obtain and consider information about any risk of physical or mental injury by or to the offender or an associated person which may be caused or increased by the imposition of a curfew requirement.
(8) In subsection (7) “associated person” means a person who is associated with the defendant within the meaning of section 62 of the Family Law Act 1996.”.’.—(Helen Goodman.)
Helen Goodman: I simply wish to say that the clause is eminently sensible, and we wish to support it. I introduced parallel legislation to restrict the travel of people who were fiddling their benefits or not paying their child maintenance. It is outrageous to find people who claim that they cannot pay fines bunking off on 500-quid holidays. The clause is absolutely the right direction in which the Government should be going.
There will be agreement that the mental problems suffered by many people in the criminal justice system are extremely worrying. They range from depression to severe psychosis. I do not think that the picture about what is going on is entirely clear, but all the numbers are going in one direction. I think that 10% of men and 30% of women have a previous psychiatric admission when they are sentenced. Michael Spurr, who was the head of the National Offender Management Service—
Michael Spurr believes that 10% of people in the criminal justice system suffer from serious mental health problems. The Royal College of Psychiatrists believes that 90% of people have a problem, and 70% of people have two problems. The Opposition agree that prison is not suitable for such people. It is a matter of concern that last year, only 1,200 people were moved from the prison estate to an NHS secure hospital. That might be connected with the fact that while the cost of a prison place is just over £100 a day, the cost of a secure hospital place is about £480 a day. That is why we think that the £5 million that the Ministry of Justice and the Department of Health have put into diversion is helpful. However, before the Minister tells us in too glowing terms how marvellous that is, I point out that in reality it would pay only for between 40 and 60 professionals around the country. They will be offering a signposting service, not the extra treatment needed where there is a massive shortage of resources. The Centre for Mental Health estimates that sorting out the problem would cost about £50 million, although I accept that community treatment with drugs is a cheaper option.
We are concerned about the Government’s view that a decision to send somebody for mental health treatment can be made without the advice of a medical professional. The Minister will say that this is another instance of where that is not what the legislation means, but that is how we have interpreted it.
Mr Blunt: If the hon. Lady will allow me, I will make the case for the clause to stand part of the Bill, and she can come back if she wishes to pick up on any points. She may have misunderstood the intention behind the clause.
Mr Blunt: Given the hon. Lady’s remarks about medical professionals, my comments may enable her to support the clause. It aims to simplify the procedural requirements necessary for a court to impose a medical health requirement treatment as part of a community order or suspended sentence order, and it removes the specification for a senior clinician—a section 12 medical clinician, as specified under the Mental Health Act 1983 —to carry out the initial mental health assessment. The clause removes the reliance on senior clinicians, who tend to operate in secure mental health services and in general do not deal with lower severity cases where a community-based approach through a mental health treatment requirement would be more appropriate. It means that a broader range of mental health specialists, such as doctors practising as psychiatrists, and psychiatric nurses and psychologists, can carry out the initial health assessment, and it will help to ensure that assessments are carried out more promptly and reduce court delay. If necessary, complicated and particularly serious cases can be referred to senior clinicians.
The clause does not affect existing requirements, which will maintain the safeguards necessary for administering a treatment requirement. Before making the requirement, the court must continue to be satisfied that an appropriate assessment of need has been carried out, that arrangements are in place for treatment to be delivered, and that the offender has expressed their willingness to undertake and comply with treatment. The legislation addresses a serious and appropriate issue, and I hope that the hon. Lady will be reassured.
Helen Goodman: I am not reassured. I knew there was a practical problem; I was going to address it and will tell Government Members why. As I understand it, the Mental Health Act 1983 extended the range of professionals whose approval was necessary to certify treatment. In the Mental Health Act 2007, the definition was broadened to include the following: a registered medical practitioner, a chartered psychologist, a first-level nurse whose field of practice is mental health or learning disability, a registered occupational therapist, and a registered social worker.
The Minister seems to suggest that it is difficult to get reports from that long list of professionals. Opposition Members, however, feel that the clause is too risky and that it is inappropriate. Evidence from the Royal College of Psychiatrists and the charity, Rethink, shows that
We have had evidence from somebody—since the Minister disrupted me, I cannot find my notes. However, evidence shows that when the right medical report is not received at the right time, people may end up having more court hearings than they would have had otherwise. We would like the Minister to understand the matter in a slightly different way, because we think that putting medical practitioners to one side carries two risks. The first is that people who should have mental health treatment do not get it. The second, which is equally problematic, is that people who do not need it, get it. I put it to the Minister that such a situation would be rather Kafkaesque.
Furthermore, evidence given to the Justice Committee in 2008 found that defending barristers frequently recommend their clients to refuse to go along with mental health treatment requirements if the requirement, which is part of the community order, is longer than an alternative custody sentence that might be given. That is seriously problematic, because for completely inappropriate reasons, people are not getting the treatment that they need. People suffering from mental health issues are not in the best position to judge their own mental health, and those who are involved in the criminal justice system are already people who, because of mental health problems, may sometimes—not always—be extremely difficult to manage. The Minister is trying to rely solely, as we read the proposals, on the individual’s consent.
Another point made by the Royal College of Psychiatrists was that where a person refuses treatment but still requires it under a mental health treatment order, they might not fulfil the criteria for sectioning. That is why the college would like to see a section 12 approved person involved in the process.
If we do not have the involvement of people who are medically qualified, that simply will not happen. Probation officers are not trained in mental health and it is quite wrong to put responsibility for making judgments on to them, just as it is unfair to the offenders.
I hope that the Minister read the Bradley report before he proposed the measure. Let me remind him of what Bradley said. He said that the pre-sentence report needed to address four things: culpability, or whether the mental health problem explains the crime; the risk of repeat; the feasibility of the community order versus custody; and supervision, should psychiatric treatment be involved. He also wanted the sentencer to consider whether going to prison would make the person’s mental health condition better or worse.
Instead of sorting out the problem, managing the system properly—the system does not work as well as it should at the moment—or putting in resources, the
Mr Blunt: With leave, Mr Hollobone, I will reply. The hon. Lady has very properly raised her concerns, but there is a serious danger that if the Committee accepts her amendment, it would have the unintended consequence of preventing mental health treatment requirements from being made and getting people in a timely fashion into mental health treatment. The current requirement is for a full psychiatric report to be carried out by a senior clinician—a section 12 doctor as per the Mental Health Act 1983. The limitations that we are trying to remove act as a barrier to getting more eligible offenders on to a mental health treatment requirement. Those doctors tend to be found in secure mental health services and do not generally deal with mental disorders at a minimum or lower level of severity, where a community base would be more appropriate.
The hon. Lady will share with me and with Lord Bradley the objective of getting people into mental health treatment when that is more appropriate, rather than into justice treatment. The practical problem with the limitations under the law as it now stands is that the current process for receiving an assessment can take several weeks, even up to two months, which causes delays in court time as well as for offenders who require mental health treatment.
The hon. Lady says, “Get more senior clinicians in place to make these assessments.” It would be great if we could turn round and manage to deliver that, but she will understand that in the current resource environment, that is not a practical outcome. We are faced with the proper choice to be made. It would be a perfect situation if there were enough senior clinicians to carry out all the assessments, but there would be an issue about whether they were being diverted from people for whom they were more appropriate. However, we are not in that position. We want people to have timely access to mental health treatment requirements.
Tom Brake: While the Minister is on the subject of mental health treatments, may I mention another point, on which I am sure he is also pushing? People in prison are facing significant problems in accessing mental health treatment, because their primary care trusts are not dealing with them quickly enough.
Mr Blunt: The whole area of the mental health requirements of offenders, as brought up by Lord Bradley’s report, which we fully endorse and support, is one where we must make much better progress. The unintended consequence of the hon. Lady’s amendments would be to prevent us from improving the situation and getting people into treatment in a more timely fashion.
Helen Goodman: The Minister’s remarks are disappointing and inappropriate, and his arithmetic is not even right. We are all agreed that psychiatric reports written by the four classes of medical professional are not currently arriving in a timely way. I urge the Minister to look again at the Bradley report, which made two cost-benefit analyses. One addressed the court process and one looked at effective sentencing to the community.
Ministers have seen a problem—I am not running away from it—and have put it on the “too difficult” list. Rather than having a proper management response, they want to change the law. Opposition Members are extremely concerned, as I said at the outset, that the wrong people will get treatment, that the people who need treatment will not get it and that there is potential for serious infringement of people’s civil liberties. I am sorry, but we cannot support the clause.
‘(a) In section 209 of the Criminal Justice Act 2003 (drug rehabilitation requirements) omit paragraph (d) of subsection (2).’.
‘(2) In section 212 of the Criminal Justice Act 2003 (alcohol treatment requirement) omit subsection (3).’.
Helen Goodman: The amendments would remove the requirement for a person to consent before being given a drug rehabilitation order or an alcohol treatment requirement order. The Minister will know that people with drug and alcohol problems are a major issue in the criminal justice system. It is frequently assumed that the problem with drugs in the criminal justice system is the acquisitive crime that people engage in to feed their habit, but anybody who has spent any time looking into the issue or meeting people will know that the drugs
When we look at this, we have to balance a number of things. The impact on the community if we allow people to continue with their drug treatment is not being given sufficient weight at the moment. I met a number of people working at Holme House prison in the constituency of my hon. Friend the Member for Stockton North, and they told me that half the drugs smuggled into the prison are not illicit. They are prescribed drugs that people on prescriptions in the community are not using in a regular way, as they said they would. Those people in the community abstain and flog them off. The drugs are then smuggled or sold into the prison.
When we address this, we need to take into account the massive cost of people who refuse to give their consent to drug rehabilitation orders, which the taxpayer is being asked to bear and which, according to parliamentary answers given by Ministers, comes to some £60 million. The cost of keeping someone on methadone for a year is £2,500.
I am sure that the Minister will refer me to the ECHR judgment on drug treatment, which the Government lost in 2003. I find it ironic that Members of this House, who are up in arms about considering the implementation of an ECHR judgment on prisoner voting, seem to have completely missed the ECHR judgment on drug treatment, which has a far greater impact on the whole community, on the criminal justice system and on offenders. As Ministers look at this, they need to take account of why we lost the case. We lost the case because people were taken off drugs immediately, which meant that they went through cold turkey. The case turned on whether that was inhuman and degrading treatment. Such treatment would not follow from agreeing to the amendment; what would follow is the completely sensible, rational approach to drug treatment that is followed at the moment, in which people’s dosage is reduced gradually over a period of six months, 12 months or 18 months. That does not have the same impact.
If anything, the alcohol issue is even clearer. Drink-driving offences are a huge problem for the whole community. Of those convicted of drink-driving, 63% of men and 40% of women admit that they have driven hazardously in the previous months. In half of violent crime cases, the victim believes that the offender was drunk. High levels of binge drinking are fuelling violent crime on Friday and Saturday nights. The issue is community harm.
In the case of the alcohol amendment, I want to reinforce the fact that we are not talking about medical treatment. When we discussed programme requirements and considered some of the alcohol programmes, I pointed out to the Committee that they were courses to teach people how to control their drinking and avoid drink-driving. It simply does not make sense that, although we do not negotiate with people about whether we will curfew them, fine them or send them into custody, we must negotiate when it comes to alcohol treatment requirements. We need to toughen up on that. I hope that the Minister will take the amendments seriously.
Mr Blunt: I recognise that the hon. Lady’s intention is to ensure that more offenders undertake the treatment that they require to tackle their substance misuse, with the aim of supporting recovery and reducing reoffending. However, I do not believe that the provisions will deliver those outcomes; indeed, they could have an adverse effect.
Putting aside the legal difficulties for a moment—it was not the case that I was thinking of but a more general difficulty—I do not believe that compelling an individual to undertake treatment against their wishes will result in more effective compliance and achieve the desired outcomes. As with any person with drug or alcohol dependency, the individual’s willingness to undertake and comply with treatment is surely essential to their rehabilitation and recovery. The same conditions must therefore apply to offenders undertaking drug rehabilitation and alcohol treatment requirements. It is not the same as the court ordering a punishment, which is the comparison that the hon. Lady drew. If the offender does not show willingness to comply, offender managers may be less likely to recommend treatment requirements to the court because they cannot provide firm evidence that the process will result in improved outcomes and aid rehabilitation. In turn, if the court applies a treatment requirement against the offender’s wishes, significant increases in breach rates could be incurred if the offender fails to comply.
As I mentioned, there are also legal difficulties with the amendment. Perhaps the most significant is the general principle, protected by law, that a person should not be subject to medical treatment without their consent. If a court decided to force a person to submit to medical treatment against his will, there is a risk that that would amount to a disproportionate interference with his right to respect for his private life. The court’s decision would therefore be vulnerable to challenge.
The amendment would also act against the principles of the national health service constitution, to which we must pay due regard, that any individual has the right to refuse treatment offered to them and not to be given any physical examination or treatment unless they have given valid consent. If the person does not have the capacity to do so, consent must be obtained from a person legally able to act on their behalf, or the treatment must be in their best interests. Outside the circumstances in which a secure hospital order is applied, that would be particularly problematic in respect of treatment requirements.
Helen Goodman: Do the accredited programmes covering alcohol and substance abuse, such as the drink impaired drivers course, the low-intensity alcohol programme, community drink violence programmes, the offender substance abuse programme and the addressing substance-related offending programme, require consent?
Mr Blunt: I will have to come back to the hon. Lady on advice with the detail of the different programmes. The point that I am making is that there are two issues. One is legal—the amendments would open us up to legal risk—and the second is practical. Such programmes are rehabilitative elements of the community sentencing framework, and rehabilitation, by its very nature, is in the offender’s interest. It is also in society’s interest, obviously, because it puts offenders back on the straight and narrow. It is to offenders’ benefit to engage with such programmes, as it is to society’s.
However, the fact is that if offenders decline to engage with them, the programmes are highly unlikely to work. In the light of that, sentencers should be in a certain position. If they are not going to engage and the probation officer has come to that assessment and makes that point clear in the pre-sentence report, there is precious little point in sentencing people to these programmes. They quite properly should be getting the full punitive tariff; part of the tariff is going to protect the public and make reparation to the victim of the crime. If they are not going to engage in rehabilitation, why are we wasting society’s resources trying to rehabilitate them?
There are proper issues to address. We obviously have to try to ensure that we people want to engage with rehabilitation. We have to explain to the offender that this part of the sentence is in their interest. If they are not going to engage with it, the punitive elements of the tariff and those parts of the sentence that protect the public remain available to sentencers, both then and in the future.
While the key aims of treatment requirements are to aid reduced reoffending, they are also about addressing health needs and enabling the recovery. That should be addressed through consent. For the reasons I have set out, I hope that the hon. Lady will accept my reassurances and withdraw her amendment.
Helen Goodman : I knew that the Minister would say that, if people had not consented, it would not be so effective to go down that path. The fact that it would be less effective does not mean, of course, that it would have no effect.
I knew that he would raise the issue of what people in the NHS think, although of course there are a variety of views. I should point out to him that the purpose of the public services is not to satisfy the professional ethics of the people working in the public services. It is to provide a public service. I also knew that the Minister would raise his legal worries. We are in danger here of seeming virtually to be giving people a legal right to be maintained at a certain level of drug use by the taxpayer. I do not think that is acceptable. However, I recognise that this is an extremely contentious area and I shall not press for a vote. I beg to ask leave to withdraw the amendment.
All I have to say is that we entirely agree with the clause. It will do what the Government have stated that earlier clauses will do, which is to introduce greater
‘may not be made unless a draft of the instrument has been laid before and approved by a resolution of each’.
The amendment, which is straightforward and self-evident, would require a draft instrument to be laid before, and passed by, both Houses of Parliament. It concerns the regulation-making power in relation to the interaction of periods of detention imposed for the breach of a detention and training order with other sentences. The Bill provides for such regulations to be made by statutory instruments thorough the negative resolution procedure. I believe that statutory instruments affecting the right to liberty should be scrutinised by Parliament, and therefore that the affirmative resolution procedure should be employed.
Mr Slaughter: I do not have much to say on the amendment, which I support. I do not know whether the right hon. Gentleman will press it to a vote, but I have a general comment. We do not intend to oppose the clause for similar reasons to those that I gave for the previous one, although I have more reservations about it. The clause will introduce flexibility, but it does so in a complicated way, which I fear will mean that, in practice, the changes might attack the finality that is always appropriate in any sentencing options, although particularly so in dealing with young people, and the clarity that we want to have in sentencing. The clause will allow for further extensions and amendments in relation to detention and training orders, but let us give it the benefit of the doubt and say that it will make another option available to sentencers.
Mr Blunt: I am not sure that the hon. Gentleman spoke to the amendment; he spoke about the clause. That will help us by saving us from having a clause stand part debate, for which the Committee will be grateful.
As the right hon. Member for Dwyfor Meirionnydd made clear, the amendment seeks to amend the process for approving regulations under the clause from the negative to the affirmative procedure. That is unnecessary because the regulation-making power in proposed new section 104B of the Powers of Criminal Courts (Sentencing)
The regulations will set out how a further period of detention for a DTO breach would apply with such a custodial sentence or in any other potential circumstances where the young offender is serving a custodial sentence, having reached the age of 18, but then receives a detention period for having failed to comply with the DTO before reaching the age of 18. Although some of those circumstances are likely to be rare and unusual, we must make provision for them.
In the Government’s view, the affirmative parliamentary procedure should be reserved for delegated legislation that justifies more intense parliamentary scrutiny and oversight. We consider that the matters to be dealt with in these regulations do not require that, as they will be largely technical in nature.
Mr Llwyd: I accept what the Minister says, but I wonder whether it is possible to have a draft of these regulations at some point in the not-too-distant future, because they are quite important, as the Minister himself says, and given their importance, the Committee should have some idea of them.
Mr Blunt: I am grateful to the right hon. Gentleman for that intervention. Of course, these regulations will be available in due course. As to the time scale, I hesitate to give a commitment without receiving advice because they are technical and complicated regulations, and it will require proper work to get them right. Indeed, this whole order is trying to address a lacuna under the last construction, whereby people could get away with a breach of an order if they were being sentenced after the end of the order. That is part of what we are trying to address here. Obviously, therefore, there will be technical complications. If we can provide the regulations, I will ask my officials to do so.
Mr Llwyd: I would have been quite satisfied if the Minister had said that he would use his best endeavours to produce the regulations by the time that we bring the Bill back to the Floor of the House.
Mr Blunt: I am again grateful to the right hon. Gentleman for that intervention. Of course we will use our best endeavours, but I qualify that statement by pointing out all the other work that those people who are likely to be drafting these regulations are doing on other aspects of the Bill that we are considering at present. So, if it is not possible to produce the regulations, I hope that he will be generous in understanding why. Having given that explanation and that assurance, I think that it is time for me to finish speaking now.
‘( ) In section 213 of the Armed Forces Act 2006 (application of provisions relating to civilian detention and training orders to orders under section 211 of that Act)—
(a) in subsection (2), after “(13)” insert “, 104B(1)”,
(b) after subsection (3) insert—
(4) Subsection (5) applies where an order under section 104(3) (further period of detention or supervision) of the Sentencing Act is made against an offender for breach of supervision requirements—
(a) during a period of supervision under an order under section 211 of this Act,
(b) during a further period of supervision imposed for breach of supervision requirements during a period within paragraph (a), or
(c) during one of a series of further periods of supervision—
(i) each of which apart from the first was imposed for breach of supervision requirements during the previous further period of supervision, and
(ii) the first of which was imposed for breach of supervision requirements during a period within paragraph (a).
(5) In the application of sections 104A and 104B of the Sentencing Act in relation to the offender, references to section 105 of that Act include section 214 of this Act.
(6) In subsection (4)—
“further period of supervision” means a period of supervision imposed under section 104(3)(aa) of the Sentencing Act;
“supervision requirements” means requirements under section 103(6)(b) of that Act.
(7) In section 104B of the Sentencing Act, references to a custodial sentence within the meaning of that Act include a custodial sentence within the meaning of this Act.”
( ) In Schedule 3 to the Armed Forces Act 2011 (minor amendments of service legislation), in paragraph 18(b) (amendment to section 213(2) of the Armed Forces Act 2006) for “after “(13)”” substitute “before “and 106A””.’.—(Mr Blunt.)
‘(4) After sub-paragraph (4) insert—
(5) Before making a relevant order imposing a curfew requirement, the court must obtain and consider information about any risk of physical or mental injury by or to the offender or an associated person which may be caused or increased by the imposition of a curfew requirement.
(6) In sub-paragraph (5) “associated person” means a person who is associated with the defendant within the meaning of section 62 of the Family Law Act 1996.’.
I would like to say a few words about the particular relevance of this clause to young people. It is right to say—this would apply to young people and adults—that the extension may limit the offender’s capacity to carry out positive rehabilitative activities and might contain them in premises that are unsuitable for that degree of confinement, where they may be in company or in circumstances that put them at risk of experiencing or perpetuating abuse, neglect or criminal behaviour. This is of particular concern in relation to children. Increasing the extent of curfews may result in a ratcheting up of curfew requirements and community sentences generally, and the comments the Minister made seem to support that view.
Concern has been expressed in a number of briefings from the Prison Reform Trust, Liberty, Justice, the Howard League and even the Magistrates’ Association. Although the Magistrates’ Association supports the extension of powers, it states that
“making maximum use of the new powers to impose a curfew of 16 hours per day, 7 days per week for 12 months would entail a severe restriction of liberty and would have implications for others in the same household.”
“This level of punishment in the community, amounting to virtual house arrest, is likely to have a stigmatising effect preventing successful reintegration. Such extensive curfew requirements further severely disrupt normal family life, effecting not simply the individual subject, but also family members and others residing with him.”
“applies with still greater force in relation to young people, for whom long curfews may have a particularly profound effect. 16 hour curfews lasting for up to a year are likely to ostracise a young person in his or her community in an important time in their personal and social development and may impede effective rehabilitation, for example, by preventing children from taking part in productive activities such as after-school sports or music classes.”
The effect of a 16-hour confinement for up to 12 months on a young person is significant. I think the Minister said that we did not appear to be objecting to the duration of 12 months, but only to the 16 hours. We object more to the 16 hours, but we are also concerned about imposing that degree of confinement on a young person for a year. I will in due course ask the Committee to divide on amendment 345. I will not ask it to divide on amendment 346 or clause stand part, but I express concerns about the clause as a whole.
Kate Green: I support everything that my hon. Friend is saying. We are concerned because developmentally 12 months is a very long period for a young person. We heard that clearly in oral evidence at the start of our consideration in Committee. Although a year is a relatively long time for a curfew order to be imposed on an adult, for a young person, as a proportion of their life and in
Mr Slaughter: My hon. Friend is absolutely right. It shows that even if the Government have given thought to the principle of extending curfews—they appear to have given that thought in two divergent ways—they have not given particular thought to how such additional punitive measures would affect young people.
“Before making a relevant order imposing a curfew requirement, the court must obtain and consider information about any risk of physical or mental injury by or to the offender or an associated person which may be caused or increased by the imposition of a curfew requirement.”
“obtain and consider information about the place proposed to be specified in the order (including information as to the attitude of persons likely to be affected by the enforced presence there of the offender).”
That is in the Criminal Justice and Immigration Act 2008. The Prison Reform Trust says, and we adopt its argument, that the courts should be specifically required to consider any potentially harmful impact on the offender; in particular, in the increased risk of domestic violence as a result of a curfew requirement. Confining people for longer periods—longer periods of the day and longer periods of the year—means that more care needs to be taken.
Ben Gummer: I have to say, not for the first time today, that I am utterly befuddled by the Opposition’s position. It is utterly contradictory with their previous statements about wanting to see stronger community sentences. Secondly, other hon. Members on Government Benches sat through the Terrorism Prevention and Investigation Measures Public Bill Committee, during which the Opposition argued against relaxing curfew extensions on people not even convicted of a crime. We now have to listen to the Opposition saying that we should have weaker non-custodial sentences for those convicted of a crime.
Mr Slaughter: I am glad that the hon. Gentleman raised that point. I only have two further points to make and he brings me on to one of them, which is whether this is a breach of article 5 rights. I will not go through the case law, which I have here, and the history in relation to control orders—the 18 hours, what was said in those cases in relation to 16 hours and so on—but we have spoken to very senior barristers who are expert in this field. We are advised that it may well be something that the Minister should take cognisance of. There may well be a breach of article 5 rights. The case law suggests that the legality is judged by the impact on the individual. If, in a specific case, it is seen that this, which effectively amounts to house arrest, will amount to that degree of impact, then it is perfectly possible, particularly in relation to young people, that the human rights aspects have not been considered by the Government. I very much look forward, having prompted him, to the Minister’s response.
The right hon. Member for Carshalton and Wallington has popped up once or twice in the few days that we have been here and expressed mild concerns about one or two aspects of the Bill. I do not know whether that is for his local papers, or to just register—
Mr Slaughter: If the right hon. Gentleman wishes to intervene and make his presence felt then that is fine. In a Bill that has so many implications for the liberty of the subject, I expected to hear a little more from the Liberal Democrats. I heard an awful lot between 2005 and 2010, and now I get a deafening silence. I think I will count up the lines in Hansard that the two Liberal Democrat Members have spoken in the course of these proceedings and see where we get to.
Helen Goodman: Does my hon. Friend not feel that some of the Tory Members are also behaving in a surprising way? Repeatedly, they tell us that the biggest problem for the liberty of the individual is the state, yet so many of the rules and so much of the first part of the Bill will strengthen the powers of the state with respect to the rights of the individual. Members from both parties of the coalition are well matched.
Mr Slaughter: I am grateful to my hon. Friend. Those comments are very well put. When we get on to talk about bail, not today I expect. [ Interruption. ] I am happy here. We will see a huge restriction on the discretion of the judiciary. That is one of the major challenges. When it suits the Government, they are quite happy to meddle and interfere and restrict the powers of the judiciary, but when it suits them the other way they declare, as the right hon. Member for Carshalton and Wallington said: “Oh well, we’re not necessarily expecting people to use 16-hour curfews; it’s just a matter of discretion.” No, it is not. The Government are clearly saying that it is reasonable to impose a curfew of 16 hours. If the right hon. Gentleman, who was expressing mild concern, thinks that 16-hour curfews for young people are unreasonable, he should say so and vote against the measure.
Mr Slaughter: I can only repeat the comment I made to the Minister earlier. First, he and the hon. Member for South Swindon have absolutely not previously described the curfew as the alternative to custody that it now appears to be. Secondly, if the confinement of someone as young as 12, 14 or even 16 in what might be highly unsuitable premises for 16 hours a day over a year is seriously being advanced by the Government as an alternative to custody, this measure is not the way to do that, even with all the safeguards that go with it, including the education and supervision that we have in secure training centres. We should at least be properly consulted, and the proposal properly put forward, not slipped in in that slipshod way.
Ben Gummer: Earlier, the hon. Member for Bishop Auckland said that Her Majesty’s Opposition supported stronger community sentences. I take the hon. Gentleman at face value on this: if not here, where does he propose that they have stronger community sentences?
Mr Slaughter: The hon. Gentleman can ask the same question as many times as he likes and he will get the same answer. This is not stronger community sentences; it is locking people up on the cheap. That is all.
Mr Slaughter: I have been listening to the hon. Member for Broxtowe with her manufactured outrage all afternoon, and I am getting a bit sick of it. What we have here is a Government who purport, through the agency of the Minister, to be liberalising the sentencing regime, and all they are introducing is a series of half-thought-out, cheap ways to save money, because of the ridiculous level of budget that has been accepted, which no other Department would sign up to. It is obnoxious when adults are affected, but it is doubly so when young people are.
Kate Green: It is important to put on record how strongly I feel about the amendment, in relation to children and young people. The hon. Member for Ipswich has made some very valuable contributions to our debates over the past few weeks, but I am sorry to say that his latest set of interventions was absolutely the opposite of valuable.
Children and young people are different from adults, and we owe them special protections. The youth justice system cannot simply mimic the adult one, and nor should it, because we need to take different steps to intervene and to seek to effect improvement in young lives. We have to care for and treat children differently, and we recognise that through so many aspects of law.
It is not right to start talking about tough community punishments, without asking whether they are an appropriate form, at this extent, for young people and children. I believe that they are not, and I have already said that 12 months is an exceptionally long time in a young person’s life. It is difficult for a young person, particularly one from a dysfunctional background who has never known boundaries or order in his or her life, to get any sense of what a 12-month sentence means. A sentence that is not meaningful to a young person is worthless, and I am concerned that that might be the case here. I am deeply concerned about constraining young people in one place for 16 hours, limiting their opportunities for social interaction and participation in broader educational and extra-curricular activities, and limiting their ability to exercise and move around in their community and be part of their neighbourhood and their environment. I am deeply concerned that in some cases the home is not a very safe place for young people and to keep them there for longer may render it even less safe.
I therefore plead with Government Members, especially those who have made so many thoughtful contributions to the debate so far, to take on board the fact that children and young people are different from adults and
Mr Blunt: Amendment 345 would amend clause 67 so that the maximum number of hours a day for which a curfew could be imposed remained at 12. Amendment 346 would require the court to obtain information in order to consider whether there was a risk of harm by or to the offender or the offender’s family associated with the imposition of the curfew requirement.
The Government believe that it is important to provide the option of a curfew that extends for a longer period than currently applies, for both young people and adults. The extension in the court’s powers will enable the court to impose a curfew requirement more creatively and more appropriately, based on those critical times when the offender is most likely to reoffend. That does not mean that the curfew would automatically have the same duration every day. A young person attending school, for example, would need flexibility during the school week, but their movements could be more tightly restricted at the weekends.
I noted that the hon. Member for Stretford and Urmston said that the measure might limit their opportunities for social interaction. That might be one of the precise objectives of the curfew, given the social interaction that some of those young people will have been inflicting on their communities. That is why these curfew requirements are appropriate. I think that if the hon. Lady has had the same constituency experience as I have, of young men and women under the age of 18 who can be a real problem to their communities, she will begin to see the benefit of a flexible curfew regime that can be properly applied in order to help protect the communities from which they come.
It is important to ensure that the youth rehabilitation order is recognised as a punitive and demanding order and is a sentence that has the confidence of both the courts and the public. We believe that giving courts the power to impose longer curfews will achieve that aim.
Helen Goodman: Obviously, when Ministers prepared the Bill, they made checks and they have written a declaration saying that they believe that the Bill is in line with the Human Rights Act 1998. I think that there are questions about everything that has been written on that score, but did they also check whether these provisions were in line with the UN convention on the rights of the child?
It is unnecessary to require the court, under amendment 346, to consider whether there is a risk of harm by or to the offender or the offender’s family associated with the imposition of the youth rehabilitation order curfew requirement. The youth offending team already carry out a risk assessment of possible harm to
Therefore, if necessary, a local authority can find suitable and safe accommodation for the young person subject to a curfew requirement if it cannot be safely imposed in their own family household. Therefore, the obligation that the hon. Member for Hammersmith wishes to impose is already being fulfilled. For those reasons, I urge the hon. Gentleman to withdraw his amendments and if he does not do so, my hon. Friends should reject them.
Mr Slaughter: We have concerns about the whole clause, but the part we are most concerned about is the extension to 16 hours. We believe—I do not think the Minister dealt with this point—that that may well be contrary to article 5, but that will no doubt be tested in due course. We will put amendment 345 to the vote, and I beg to ask leave to withdraw amendment 346.
Mr Slaughter: The clause replicates what was in clause 62, but it relates to young people rather than adults. I will endeavour not to repeat the matters that were dealt with in that debate and will adopt the argument made by my hon. Friend the Member for Bishop Auckland.
However, we are concerned about the downgrading of the need for a proper medical assessment. Notwithstanding the difficulties that there are in obtaining the relevant professional advice, the answer is not immediately to say that we will deal with the matter by perhaps looking to alternative medical advice that is not of equal status or standing. I simply say again that if such an approach is right for adults, it is doubly right in the case of children. We think that without the correct degree of medical opinion, the orders may be imposed inappropriately and unhelpful burdens may be placed on the individual. That will fail to contribute towards effective rehabilitation, which, after all, is the objective here.
This is not an issue on which people wish to fall out. I suspect that there is agreement among all Committee members about the need to see the effective, sensitive and appropriate use of mental health treatment. We simply disagree on whether, for reasons of expediency, this is the right approach to take at present. Greater sensitivity is required in the guidance of young people. Young people’s minds are still forming in a way that is far more profound and immediate than adults’. The matter is particularly sensitive for young people who also have mental health difficulties, and it requires a high level of expertise. When such young people have emerged from a difficult phase of development, even in the course of offending behaviour, we owe it to them, and to wider society, to give them the benefit of the doubt and the most thorough and appropriate treatment. I therefore ask Government Members who are not persuaded by my hon. Friend’s arguments against clause 62 carefully to consider clause 68.
Mr Blunt: The aim of the clause, in parallel with matters debated earlier, is to simplify the procedural requirements for a court to impose a mental health requirement as part of a youth rehabilitation order. It achieves that by removing the need for a medical clinician approved for the purposes of section 12 of the Mental Health Act 1983 to carry out the initial mental health assessment.
The clause does not remove the need for any assessment; it merely aligns assessment with what happens in practice. The initial health assessment is carried out by a broad range of child and adolescent mental health services specialists, such as child and adolescent psychiatrists, specialist mental health nurses and child psychologists rather than by senior clinicians, to whom assessments would be restricted if the clause were not passed. Removing the unnecessary current requirement for a section 12-approved medical clinician sign-off will speed up the process and reduce court delay. Where necessary, the CAMHS team will refer complicated and serious cases to an appropriate forensic clinician. We have debated this matter before: it remains the case that the court cannot make a YRO with a mental health requirement unless the young person has expressed a willingness to comply with it. I therefore hope that the Committee will allow the clause to remain part of the Bill.