Legal Aid, Sentencing and Punishment
of Offenders bill

The Committee consisted of the following Members:

Chairs: Mr Philip Hollobone  , Jim Sheridan 

Blunt, Mr Crispin (Parliamentary Under-Secretary of State for Justice)  

Brake, Tom (Carshalton and Wallington) (LD) 

Buckland, Mr Robert (South Swindon) (Con) 

Crockart, Mike (Edinburgh West) (LD) 

Cunningham, Alex (Stockton North) (Lab) 

Djanogly, Mr Jonathan (Parliamentary Under-Secretary of State for Justice)  

Fovargue, Yvonne (Makerfield) (Lab) 

Goodman, Helen (Bishop Auckland) (Lab) 

Green, Kate (Stretford and Urmston) (Lab) 

Gummer, Ben (Ipswich) (Con) 

Hinds, Damian (East Hampshire) (Con) 

Lee, Jessica (Erewash) (Con) 

Llwyd, Mr Elfyn (Dwyfor Meirionnydd) (PC) 

Reynolds, Jonathan (Stalybridge and Hyde) (Lab/Co-op) 

Slaughter, Mr Andy (Hammersmith) (Lab) 

Soubry, Anna (Broxtowe) (Con) 

Truss, Elizabeth (South West Norfolk) (Con) 

Turner, Karl (Kingston upon Hull East) (Lab) 

Wallace, Mr Ben (Wyre and Preston North) (Con) 

Watts, Mr Dave (St Helens North) (Lab) 

Wright, Jeremy (Lord Commissioner of Her Majesty's Treasury)  

Kate Emms, Committee Clerk

† attended the Committee

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Public Bill Committee 

Tuesday 11 October 2011  


[Mr Philip Hollobone in the Chair] 

Legal Aid, Sentencing and Punishment of Offenders Bill

Written evidence to be reported to the House 

LA 97 The Mary Ward Legal Centre 

LA 98 Stephensons Solicitors LLP 

LA 99 Carol Laidlaw and Ellen Lee 

LA 100 Coram Children’s Legal Centre 

LA 101 Ismail Abdulhai Bhamjee 

LA 102 David Glasgow and others 

LA 103 Patricia Thomas 

LA 104 Howells Solicitors 

LA 105 Walker Smith Way Solicitors 

LA 106 Rethink Mental Illness 

LA 107 Bar Council of England & Wales 

LA 108 The Institute of Legal Executives 

LA 109 ARAG plc 

LA 110 The Barbara Melunsky Refugee Youth Agency Ltd, known as RefugeeYouth 

10.30 am 

Mr Andy Slaughter (Hammersmith) (Lab):  On a point of order, Mr Hollobone. It is good to see you in the Chair after another break in the Committee’s proceedings. I shall not trespass too much on the Committee’s time or business, but it is important that I raise a point of order in relation to Members’ declarations of interest in Committee. 

The Under-Secretary of State for Justice, the hon. Member for Huntingdon, has responsibility for representing the Government on parts 1 and 2 of the Bill in the House and in this Public Bill Committee. On Tuesday 19 July, at the commencement of the Committee’s fifth sitting, he said: 

“I declare an interest as a non-practising solicitor who has never been in receipt of legal aid.”––[Official Report, Legal Aid, Sentencing and Punishment of Offenders Public Bill Committee, 19 July 2011; c. 159.] 

Since the Committee last met on 15 September, matters have come to light that suggest that his declaration was incomplete and a breach of the rules. The relevant section of “Erskine May” states that 

“a Member is required to declare ‘any relevant pecuniary interest or benefit of whatever nature, whether direct or indirect, that he may have had, may have or may be expected to have’… The Committee on Standards and Privileges has made it clear that it would regard it as a very serious breach of the rules of the House if a Member failed to register or declare an interest which was relevant to a proceeding he had initiated.” 

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A series of investigations by The Guardian and T he Daily T elegraph newspapers has led to the publication, between 16 September and today, of some seven articles that, inter alia, allege that the Minister has other interests that are directly relevant to the Bill and should have been declared. They include his membership of Djanogly Family LLP, which underwrites insurance; his brother-in-law’s ownership of two leading claims management companies—Going Legal Ltd and Legal Link Introductory Services Ltd; his children’s ownership of shares in his brother-in-law’s claims management companies; his ownership of shares in several companies with insurance interests at a level that is above the limit for declaration, which is the annual parliamentary salary; and the fact that a quarter of his declarable stock holdings are in companies that are members of the Association of British Insurers. 

I have raised the matter with the Cabinet Secretary in letters of 20 September and 3 October, and I have asked him to investigate possible breaches of the ministerial code. However, as the matter pertains to the Minister’s declarations in the Register of Members’ Financial Interests and before the Committee, I thought it necessary to raise it here, first, to give the Minister the opportunity to correct his declaration and, secondly, to ask for your advice, Mr Hollobone, on what steps the Minister or I should take to put the matter properly on the record and to investigate any breach of the rules. 

For the avoidance of doubt, I note that the Minister amended the Register of Members’ Financial Interests on 23 September 2011, a change which was published on 28 September, to state that his registrable shareholdings and minority shares in Djanogly Family LLP had been transferred to a blind trust on 26 October 2010. That late declaration is itself a breach of the rules, and was made after his declaration in Committee and the publication of the press articles. However, according to documents filed with Companies House as late as 6 September 2011, the Minister is still registered as a member of Djanogly Family LLP, which is inconsistent with that entry. In any event, he has made no attempt to address the further interests to which I have referred, including those of his close relatives. 

Furthermore, the matters that, in my submission, should have been declared in Committee are significant, as they reveal a direct or indirect pecuniary interest that the Minister and close members of his family have in companies and trusts that may benefit from the legislation he is promulgating. 

A report in The Guardian today alleges that the Minister and his civil servants worked closely with the insurance industry in building a case to support the Bill, from which they and he may benefit. Previous reports in The Guardian and The Daily Telegraph have alleged that his close relatives have benefited or will benefit financially from their interests in Going Legal Ltd and Legal Link Introductory Services Ltd. They are claims management companies, of which the Minister is also the regulator, and which have been strongly criticised by both the Solicitors Regulation Authority and the Solicitors Disciplinary Tribunal. 

It is difficult to see how a reasonable person would not perceive those matters as being, at the very least, conflicts of interest. The Opposition, therefore, believe that the Minister should withdraw from further

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consideration of the Bill. I invite you, Mr Hollobone, or the Minister to indicate whether that is now the proper way to proceed. 

The Chair:  The point of order is relatively straightforward for the Chair, in that matters pertaining to declarations of interest are not matters for the Chair. If the hon. Gentleman has concerns about any member of the Committee with regard to a declaration of interest, he should refer the matter to the Parliamentary Commissioner for Standards. However, the Minister is in his place, and if he would like to respond I am happy to allow him to do so. 

The Parliamentary Under-Secretary of State for Justice (Mr Jonathan Djanogly):  Further to that point of order, Mr Hollobone. I understand from reading The Guardian that the hon. Member for Hammersmith has recently made a complaint to the Cabinet Secretary about my financial interests, even though they are held in a blind trust. Although I have not been given a copy of the complaint, I know that it is being considered by the Ministry of Justice and the Cabinet Office, and they will have my full co-operation. In the meantime, I fully stand by my published position that I have at all times made the relevant declarations as an MP and as a Minister. 

The Chair:  That is where the matter will rest for us this morning. 

Mr Ben Wallace (Wyre and Preston North) (Con):  On a point of order, Mr Hollobone. May I seek your advice? Throughout the proceedings on the Bill, Opposition Members have never at any stage declared that they received considerable sums of money—more than £300,000—from Thompsons and other solicitors who make money from personal injury claims. Is it acceptable for that interest to be introduced now to the Committee? 

The Chair:  Again, it is a straightforward matter for me. A declaration of interest from any member of the Committee is not a matter for the Chair. If the hon. Gentleman has such concerns, he should refer them to the Parliamentary Commissioner for Standards. 

We will move on. 

Clause 69 

Youth rehabilitation order: duration 

Mr Elfyn Llwyd (Dwyfor Meirionnydd) (PC):  I beg to move amendment 274, in clause 69, page 50, line 21, at end insert ‘and for “3” substitute “2”.’. 

The Chair:  With this it will be convenient to discuss the following: amendment 332, in clause 69, page 51, line 1, leave out ‘subject to that, may’ and insert ‘may not’. 

Amendment 275, in clause 69, page 51, line 1, leave out ‘three’ and insert ‘two’. 

Amendment 333, in clause 69, page 51, line 22, leave out ‘subject to that, may’ and insert ‘may not’. 

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Amendment 276, in clause 69, page 51, line 22, leave out ‘three’ and insert ‘two’. 

Amendment 334, in clause 69, page 51, line 43, leave out ‘subject to that, may’ and insert ‘may not’. 

Mr Llwyd:  It is a pleasure to see you in the Chair again today, Mr Hollobone. I am pleased to say that my amendments 274, 275 and 276 are very brief and will not detain the Committee long. Before I speak about them, I will refer to the purport of the clause. The explanatory notes state: 

“This clause amends the current provisions in Schedules 1 and 2 to the Criminal Justice and Immigration Act 2008…which set out the duration of youth rehabilitation orders. Under the current provisions where an order has multiple requirements which may themselves be time limited it can be unclear when the order is completed. In some cases this can result in the requirements being completed before the end date of the order requiring the case to be returned to court to revoke the order.” 

“Subsection (1) amends Schedule 1 to the 2008 Act to enable the court to specify different completion dates for different requirements attached to an order and for the end date of the order to be the same as the last completion date for a requirement.” 

“Subsection (2) inserts new sub-paragraphs (6A) to (6D) in paragraph 6 of Schedule 2 to allow a magistrates’ court to extend the end date of an order by up to 6 months where a further requirement is imposed but only on one occasion. If the order is extended under these provisions then it may extend beyond the three year maximum length set out in Schedule 1.” 

My amendments seek to change the maximum period from three years to two, but I accept that the provision to extend by six months is sensible; I have no argument with that. However, I believe that going beyond three years could be burdensome and counter-productive. In effect, the amendments substitute two for three. As I said, I have no issue with the extension of six months in the clause. 

Mr Slaughter:  Our amendments are different from those tabled by the right hon. Member for Dwyfor Meirionnydd, although I suspect they have the same point. While we agree that it is sensible to allow the orders to continue rather than to refer people back for an alternative punishment, we have concerns about the length of the orders. The right hon. Member for Dwyfor Meirionnydd corrects that by saying that they should be limited to two years, but with the possible extension of six months. We agree that they could be extended. That seems sensible, efficient and clear in the light of the Government’s concerns that there would not be a contiguous period between the sentences being carried out and the sentence of the order—in other words, the actual work undertaken. 

However, the idea that orders should continue beyond three years is wrong in principle. By definition, such orders relate to young people, and three years is a long time in a young person’s life. It is unusual for community orders to last for three years or longer. I can see how the Government have got themselves into this position, but it would not be sensible to allow the period to be extended beyond three years, because doing so would increase the chance of breach. It puts a heavy burden on young shoulders to say, “You will be undergoing a form of punishment or rehabilitation”—call it what you will—“that will last for a substantial part of your teenage life.” Three years is a long enough period for orders, and the amendments would limit them to that length. 

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The Parliamentary Under-Secretary of State for Justice (Mr Crispin Blunt):  It is nice to be back after the break and to discover that some of our esteemed colleagues in Committee are in the swansong stage of their affairs on justice. I refer, of course, to the hon. Member for Bishop Auckland, who, I understand, will move to the Culture, Media and Sport team on the Opposition Front Bench. I am not sure whether congratulations are in order her, but, since she is my opposite number, I regret her move. We will miss her infectious good humour; it is a shame that the hon. Member for Hammersmith is immune to that infection, as was illustrated by his rather tawdry point of order at the beginning of proceedings. It is with some regret that we must continue to enjoy his company—our sentence continues without any prospect of early release. 

I congratulate other Opposition Members of the Committee, including the hon. Member for Stalybridge and Hyde, who will become the Parliamentary Private Secretary to the Leader of the Opposition—that may be a very long stretch indeed to serve. The hon. Member for Stretford and Urmston is absent, but we congratulate her on her move to the Front Bench to speak for the Opposition on women and equalities. The hon. Member for Makerfield is, no doubt, already being briefed on the responsibilities of being an Opposition Whip. We congratulate Opposition Members whose careers have advanced, no doubt because of their contributions to our proceedings in Committee. 

The amendments seek to amend clause 69 to reduce the maximum duration of a youth rehabilitation order. The hon. Member for Hammersmith has said that it would be unusual for orders to last longer than three years and I am happy to concede that point. Bearing that in mind, however, I shall make the case for inviting the Committee to resist the amendments. 

At present, a sentencing court may impose a youth rehabilitation order with a maximum duration of three years, which cannot be extended. The clause amends the Criminal Justice and Immigration Act 2008 so that an extension of up to six months will be allowed when a court is dealing with a breach of the original YRO, or an application to extend it, and wishes to allow additional time for a component requirement to be completed. 

The amendments tabled by the right hon. Member for Dwyfor Meirionnydd would reduce the duration of a YRO to two years. The right hon. Gentleman does not want to amend the provisions of the clause that allow the court to extend an order, so his amendments would, effectively, provide that the maximum duration of a YRO, if extended, as he explained, would be two years and six months. 

The amendments tabled by the hon. Member for Hammersmith do not aim to reduce the duration of an order, but to amend the clause so that the court may extend an order but not beyond three years. The amendments would therefore provide that the maximum period of a YRO would be three years, whether it were extended or not. 

We oppose the amendments. While we have some sympathy with the arguments put forward by the right hon. Member for Dwyfor Meirionnydd and by the hon. Member for Hammersmith, the clause should remain as it stands. This is a matter of judgment, and our judgment comes down on the side of consistency of framework. 

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10.45 am 

I accept that three and a half years is a long time for a person to be on a community order. I want to emphasise that, for under 18s, that power would be exercised rarely. In our view, however, it is important, in the interests of consistency of the sentencing framework, to align that additional flexibility around the end of the order with that that we are applying to the adult community order in clause 55. 

Helen Goodman (Bishop Auckland) (Lab):  That is exactly the point and exactly the problem. Children are different from adults. It is therefore not appropriate to have the same sentencing regime for children and adults. 

Mr Blunt:  We have to deal with the issue of boundaries, and we also have to try to deliver some clarity and consistency in the framework. We are not going to go around seeking difference simply to make it different in principle. The hon. Lady seems to say that, on a point of principle, we need to make the youth orders different from the adult orders, just for the sake of their being different. I am unconvinced by that. We need to bring some more clarity and consistency to the sentencing framework. 

The clause will make it easier for the courts to deal with a breach at the end of the order, as well as allowing the offender to complete the order, where a delay has occurred through no fault of his own. The youth rehabilitation order provides an alternative to custody, and as such is often given to offenders who have committed serious offences. For those offences, especially for older youths, a longer order may be given. Courts should have the same power, as they would for an adult, to extend the sentence beyond the original end date if a breach occurs or in circumstances where the offender has been unable to complete the sentence within the specified time frame. 

If we have an inconsistent time frame between youths and adults, we will fail to deal adequately with what changes at the age of 18. Most orders will not require the maximum length, even if extended because of breach action. It is for the courts to assess the appropriate length of an order. Sentencing guidelines provide comprehensive guidance on the many factors that should be taken into account when sentencing a person under 18. I am confident that sentencers are well equipped to assess the right length of sentence, but they need to have sufficient flexibility to deal with the range of offending and offenders who fall to be dealt with by a YRO. 

I also point to subsection (1), which provides for the order’s end date to align with the date that the last requirement of the order is completed. That makes it clear to the offender that, if they meet the requirements of the order, they will no longer have it hanging over them. That is an important change. Furthermore, there is specific provision under paragraph 11 of schedule 2 of the 2008 Act for a court to revoke a YRO early in cases where the offender has made good progress or is responding to treatment or supervision. That provides an additional incentive for the young offender to complete their order. That power is often used by youth offending teams to reward positive behaviour. 

I have greater sympathy with the amendments tabled by the right hon. Member for Dwyfor Meirionnydd, because they at least recognise the need for flexibility at the end of the order. I am not, however, convinced that

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now is the time to reduce the overall length of a YRO from three years to two, because we need to keep public confidence that all community sentences are robust and effective. I invite the Committee to resist the amendments. I hope that the right hon. Gentleman will withdraw his. 

Mr Llwyd:  I thank the Minister for his full response, but I am not persuaded. If a young person cannot be assisted in two years of rehabilitation, that third year does not add much to the process, in my experience. 

I hear what the Minister has said about the rare occasions where the measure may be necessary. However, I am worried about the use of the word “consistency”, because we need to design a system specifically for youth offenders. Part of the problem in our criminal law is that we do not look distinctly at the various needs and methods for dealing with youth offenders in a way that, to put it crudely, actually pays off. 

Public confidence leads me to think about the politicisation of the justice system. No doubt, as we speak, Daily Mirror and Daily Mail reporters are jotting down that such a system will be introduced and that we shall be extra burdensome on young people. I do not believe that it will be helpful, but there we are. The amendment is a probing amendment. I do not intend to press it to a Division, but such matters are a real worry to many organisations that are, to put it in the vernacular, in the know. The Prison Reform Trust feels very strongly about the issue. We may return to the matter and I accept the Minister’s argument, but I am still unhappy about the length of some orders although, as he said, they may be in the minority. With those few comments and the Committee’s consent, I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Clause 69 ordered to stand part of the Bill.  

Clause 70 

Youth rehabilitation order: fine for breach 

Mr Llwyd:  I beg to move amendment 277, in clause 70, page 52, line 26, leave out from ‘, for’ to end of line and insert ‘(i), for “14” substitute “16”.’. 

The Chair:  With this it will be convenient to discuss the following: 

Amendment 278, in clause 70, page 52, line 28, leave out from ‘, for’ to end of line and insert ‘(i), for “14” substitute “16”.’. 

Amendment 279, in clause 70, page 52, line 32, leave out from beginning to ‘paragraph’ in line 33. 

Mr Llwyd:  The amendments are short. None the less, they are important. As it stands, the provision provides for a £250 limit on fines for breach of a youth rehabilitation order for under-14s to apply to under-16s. The current limit for 14 to 17-year-olds is £1,000, which would now apply to 16 and 17-year-olds, and could be counter-productive. I see no reason why the current limit of £250 should not remain in respect of under-14s and under-16s because, if we are to impose a huge financial burden on such young people, that might have unintended consequences if, for example, a young person has been

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involved in acquisitive crime. Will they fall into the trap of further acquisitive crime in order to pay off that £1,000 burden? 

The amendment is not meant to be soft on crime, but it would be consistent to apply the £250 fine to under-14s and under-16s, so it is a realistic measure. If we are to encourage young people possibly to breach their rehabilitation orders to clear a seemingly large fine, that would be a waste of everyone’s time and counter-productive in the extreme. 

Mr Slaughter:  My feelings about the matter are broadly similar to those of the right hon. Member for Dwyfor Meirionnydd. Although my hon. Friend the Member for Bishop Auckland raised a matter of principle in respect of the difference between adults and children, our objection to clause 69 was practical, as is our objection to clause 70. We do not take issue with the fact that it is appropriate to introduce financial penalties for young people. However, one has to be aware of the practicalities. 

Most young people do not have substantial means of their own and therefore the burden is likely to fall on their parents, who in turn are unlikely to have substantial means of their own. No doubt the Government would like to use the clause to achieve the collection of more money by way of fines, but they are not doing a very good job of that. It seems a triumph of hope over expectation to say that simply by imposing substantially higher amounts for quite young children the amounts collected will increase, so all this is totemic. It is simply saying, “We wish to appear tougher by imposing a higher financial penalty.” In practice, it will have the opposite effect. It will bring the law into disrepute if it is effectively unenforceable, simply because people will not have the means to pay. 

The levels of fines envisaged—£2,500—are substantial. Most young people of the age at which the fines would be imposed would not even have a concept of that sum of money, let alone the means to pay it. For that reason, we do not think that the clause is sensible—the right hon. Member for Dwyfor Meirionnydd made a similar point—and it should not be in the Bill. 

Mr Blunt:  As we have heard, the amendments seek to prevent the courts from imposing on young people under 18 the new proposed maximum fine of £2,500 for a breach of their youth rehabilitation order. They would restrict the maximum fine to £250 for under-16s, and £1,000 for 16 to 17-year-olds. 

The youth rehabilitation order is the community sentence for under-18-year-olds. We intend to bring the fine limit for the breach of a youth rehabilitation order into line with that of the breach of an adult order. We wish to ensure that sentencers and the public have confidence in community sentences and that punishments for breach are robust. Where the young person or their parent have sufficient means, the court should be able to impose a substantial fine if the child fails to comply with the court’s sentence. Courts will still be required to consider the offender’s means when setting a fine. We do not expect courts to impose a very high fine where there is no prospect of a child or the parent being able to pay it. This is not totemic. There will be cases where plainly the parent—or indeed the child—may have the means to

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pay the fine, in which circumstance we think it is appropriate, because it will drive home the message that community sentences must be completed and that robust penalties will be imposed if the offender fails to comply. 

Mr Dave Watts (St Helens North) (Lab):  It seems very strange to pick the figure of £2,500. Will the Minister explain why he chose it? Why not £3,000, £5,000 or £10,000? Surely there should be some logic in setting such a limit. Most people Opposition members of the Committee believe that it is excessive, and that it is unlikely that the individuals concerned will be able to pay it. 

Mr Blunt:  That will be for the court to decide; the court will have to take into account the offender’s means. The hon. Gentleman tempts me to go down the route of going beyond £2,500. There is an argument for it. No doubt there will be people of very substantial means who would be able to afford it. However, in the end, it is a question of appropriate judgment. It is consistent and appropriate to set the fine at £2,500 to bring it into line with the level for adult breaches. That is why we have settled on £2,500. I therefore urge the right hon. Gentleman to withdraw his amendment. 

11 am 

Mr Llwyd:  The point has been made. I have no doubt that the matter will be revisited. I am sure that the other place will deal with it. Unfortunately, I do not accept what the Minister has said. I have no doubt that he said it in all good faith, but the clause will not do anything for the criminal justice system other than to cause further harm and possibly even to bring it into disrepute. I will not divide the Committee on the amendment, as I am confident that the matter will be thoroughly debated elsewhere. I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Clause 70 ordered to stand part of the Bill.  

Clause 71 

Magistrates’ courts’ powers to impose imprisonment 

Question proposed, That the clause stand part of the Bill. 

The Chair:  With this it will be convenient to discuss Government amendments 390, 391, 394, 395 and 405. 

Mr Blunt:  It may assist the Committee if I make it clear at the outset that the Government will not ask the Committee to support the clause, which deals with magistrates’ sentencing powers. The ensuing amendments in this group, to which I will return in a moment, are based on the removal of the clause, but I will first explain why we do not want to include it in the Bill. 

As stated in our Green Paper “Breaking the Cycle”, the Government had proposed to repeal the provisions relating to custody plus, intermittent custody and the related increase in magistrates’ sentencing powers in the Criminal Justice Act 2003. As drafted, they were overly

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complex and impractical, which was perhaps why they were never commenced by the previous Administration. This Government have never ruled out the possibility of increasing magistrates’ powers at some point, if the case for it could be made. The recent disturbances have rightly provoked further debate on that issue. 

The Magistrates Association and others have raised the question of whether increased sentencing powers would enable magistrates courts to deal with more cases, and whether that would therefore speed up the justice system. However, issues have to be considered about, for example, the effect that increased magistrates’ powers would have on the right to elect for Crown court trial. Recent events mean that it is worth giving further careful thought to that issue, and in that light we no longer think that it would be appropriate to repeal the existing power at this stage. 

We therefore propose that the unimplemented provision should remain on the statute book while we consider the case for magistrates having increased sentencing powers. For that reason, I will not ask the Committee to support the clause. I should also make it clear that we intend to continue with the repeal, as provided for in clause 72, of the long-unimplemented and, in our view, unworkable custody plus sentences. 

Amendment 405 will remove clause 114(3), which contains a regulation-making power that was designed to allow for changes to be made to maximum terms of imprisonment on summary conviction. If clause 71 is removed, there is no need for that specific power, which was intended to ensure that the maximum term of imprisonment for any offence did not exceed the magistrates courts’ sentencing powers. 

Amendments 390, 391, 394 and 395 relate to the new knife offences in clause 113. Amendments 390 and 394 increase the maximum penalty for the two knife offences on summary conviction from six to 12 months. I stress that that relates to the maximum penalty, not the mandatory minimum sentence. Amendments 391 and 395 will insert transitional provisions such that the reference to “12 months” should be read as “six months” until the provision increasing magistrates’ sentencing powers is actually implemented. In other words, that will allow the provisions on offences to be implemented independently or before any change to magistrates’ sentencing powers, and it will bring them into line with the offences that have been created since 2003. 

It may assist the Committee if I also mention that a similar provision will be needed for the offence that will be created by clause 32(4), which, as members of the Committee will remember, relates to the offence of unlawful disclosure of information about financial resources. As the Committee has concluded its consideration of that clause, the Government intend to return to it at a later stage and to table equivalent amendments. 

Finally, the Government have withdrawn new clause 5, which would have made equivalent changes to clause 71 for armed forces legislation. We want to maintain consistency across the civilian and military sentencing systems, so new clause 5 will no longer be appropriate if clause 71 does not stand part of the Bill. 

This group of amendments withdraws the repeal in clause 71 and is a responsible reaction to the new circumstances that have arisen from the disturbances in August. We want to take time to consider whether, in

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the light of those events, there is a case for increased powers. While doing so, we are retaining the provision to increase magistrates’ sentencing powers on the statute book. I therefore ask the Committee to agree that clause 71 should not stand part of the Bill. 

Helen Goodman:  It is a pleasure to see you in the Chair this morning, Mr Hollobone. I am grateful for the Minister’s kind opening words. He will find my hon. Friend the Member for Darlington (Mrs Chapman) an excellent sparring partner, who will continue to fly the flag for a sensible criminal justice system. 

We were surprised when we saw the clause, because, before the general election, the Prime Minister said that magistrates should be allowed to lock up young thugs to end the crisis of order on our streets. We thought it strange, therefore, that the clause was included. We believe that magistrates courts’ powers are appropriate, so we are pleased about the Government amendments. However, we wonder what the Secretary of State for Justice is doing at present, as he seems also to have been overruled by the Attorney-General, who said, on 7 September, in evidence to the Justice Committee, that consideration should be given to raising the maximum sentences that magistrates can impose, not least—he is right about this—because it is much cheaper to run a case in a magistrates court than in a Crown court. 

The Minister has not said that he is about to implement the power in subsection (2) of the 2003 Act, but that he will keep it on the statute book while considering increasing magistrates courts’ sentencing powers. The Opposition support that, but during his review the Minister should take into account another aspect of the provisions in the 2003 Act, because it is not just a question of the either way sentences. 

Section 280 of the 2003 Act also refers to schedule 26, which would increase the penalties for many offences. I shall not read out the full list of those penalties, because there are 30 or so, but some of them are especially important, so I want to remind the Committee about them. The offences include false statements on benefit claims, and various firearms offences, including trespass and being drunk with a firearm. There are many offences relating to animals, offences under the British Nationality Act 1981, offences relating to testing for presence of drugs, and road traffic offences, including drink-driving, which Ministers have been considering at the instigation of my hon. Friend the Member for Kingston upon Hull East. Also included are offences relating to the prohibition of commercial dealings in human organs, assaults on constables, offences under the Financial Services and Markets Act 2000, false statements under the Immigration and Asylum Act 1999, offences under the Terrorism Act 2000, and prevention of intimidation. Although we must consider the economic aspect of how cheap or expensive it is to run cases relating to antisocial behaviour, I hope that the Minister will also take into account that this section of the Bill relates to that long list of offences. 

Mr Blunt:  I have listened to what the hon. Lady has said. The points that need to be taken away and considered will form part of our consideration when we examine whether these powers will be used. I invite the Committee to resist the clause standing part of the Bill. 

Question put and negatived.  

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The Chair:  Do I have the leave of the Committee to put the questions on clause 72, schedule 9 and clause 73 together? 

Helen Goodman:  No. I want to have a discussion on clause 72 and schedule 10 separately. 

Clause 72 

Custody plus orders and intermittent custody orders 

Question proposed, That the clause stand part of the Bill. 

Helen Goodman:  The Minister has sensibly just told us that he wants to increase the length of time to which magistrates can sentence people from six to 12 months. That, as he has already said, relates to the custody plus regime, which was legislated for in 2003. Clause 72 would remove it. As he has bitten the bullet on clause 71, I want the Minister to think more carefully about clause 72. We are opposed to it, because even though the provisions were not implemented, they are sensible. It would be a good idea to keep them on the statute book. I will set out why. 

All hon. Members know that there is a problem with the effectiveness of policy on short-term prison sentences. There is a group of persistent offenders committing crimes, and they generally receive custodial sentences of less than six months. They can be some of the most troubling offenders for communities. The problem with the current regime is that if a person is in prison for six months, they rarely get the kind of courses and programmes that are designed to address their behaviour. When they are released for the second half of their sentence in the community, they are not supervised by the probation service. Once again, the problems and the underlying reasons for their offending behaviour are not being addressed. The custody plus regime was designed specifically to address that. 

The problem is not new. In 2001, the previous Government set up the Halliday review whose report stated: 

“One of the most serious deficiencies in the present framework is the lack of utility in prison sentences of less than 12 months. Only half of such sentences are served…and the second half is subject to no conditions whatsoever. The Prison Service has little opportunity to work on the factors which underlie the criminality because the time served in custody is so limited–and yet these sentences are used for large numbers of persistent offenders who are very likely to reoffend.” 

I will give some of the reoffending statistics in a moment. The report continues: 

“There is a need to provide a structured framework for work with the large number of offenders who persist in criminality at a level of seriousness that does not require longer prison sentences. 

This need could be met by requiring those who serve short prison sentences to undertake programmes under supervision after release, under conditions, which–if breached–could result in swift return to custody. Under such a sentence, the initial period in custody could be any period between 2 weeks and 3 months, and the period of supervision could be any period between (a minimum of) six months and whatever would take the sentence as a whole to less than 12 months. Such a sentence would be potentially more punitive in its effect on offenders who breached their conditions than any existing prison sentence of under 12 months.” 

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The White Paper then took on board those points and stated: 

“Although short prison sentences will continue to be appropriate for some offenders, we want to ensure they support our overall aim of reducing reoffending. The best way of achieving this is to have proper support, supervision and follow through education programmes, drug treatment and anger management schemes in the community.” 

11.15 am 

The consultation undertaken prior to the implementation of measures under the 2003 Act received widespread recognition of the need to make sure that sentences were more effective. I wish that the right hon. Member for Carshalton and Wallington would listen to what is being said rather than fiddling with his Blackberry. I remind him that at the time his colleague supported the provisions in the 2003 Act without qualification. Since then the situation has not improved significantly. I am not happy about it. In 2007, 59.9% of offenders sentenced to 12 months or less in custody reoffended within 12 months. In 2008, the figure was 61.1%. In 2009, it was 59.4%. We can see that it is just trolling along at the same level without significant change. 

Ben Gummer (Ipswich) (Con):  I am delighted that the hon. Lady is giving the Committee such a damning indictment of the previous Government’s policy on rehabilitation. 

Helen Goodman:  We need an honest assessment of what is going on, which is what I am trying to give the Committee. I am not giving it a partisan, rose-tinted spectacled view of what is going on. I am trying to address the real problems and pressing on the Committee the fact that custody plus, which rests on the balance between time in prison and supervision outside, is the way to go. I understand completely that it is expensive and that the Government are looking to make reductions, so it may be an area where they do not want at this juncture to be making new spending commitments. None the less, some pilot schemes and experiments would be sensible. In the long run, taking such action might save the community more. 

Last year, the National Audit Office suggested that failure to tackle the criminality of the 60,000 prisoners who serve sentences shorter than 12 months is costing the country between £7 billion and £10 billion annually in reoffending. I urge the Minister to drop clause 72 and to keep open the possibility of a more effective approach for this group of offenders. 

Mr Blunt:  I agree with a lot of what the hon. Lady has just said. Obviously, I agree with the indictment of the failure to put in place what was intended behind custody plus and the shocking failure to rehabilitate successfully short sentence prisoners better than they are rehabilitated at present, if one can describe a 59.4% reconviction rate within one year as any form of success whatever. It is a shocking sign of failure. 

There is, of course, agreement throughout the Committee about what needs to be done, but there is a basic philosophical distinction between us about how to do it, which we saw at its most glaring in the custody plus

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provisions. It was decided that Parliament would put provisions on the statute book to instruct the people charged with and interested in the rehabilitation of offenders to set down the regime under which offenders would be rehabilitated, but of course the resources to deliver it were not provided. We made a complete nonsense of it by passing laws for which the resources were never delivered. 

We know that all the people who work around offender management share the objectives that the hon. Lady laid out in her speech. We are doing precisely what she recommended—piloting ways to see how we can make rehabilitation work. She will be familiar with the pilot at Peterborough prison. We have begun a pilot at Doncaster prison to deal with this cohort of offenders. We are in the process of selecting two probation trust areas to deal with prisoners supervised by probation trusts, to have them focus on community sentence offenders to improve their rehabilitation rates. 

We are inviting two innovation pilots from any private, voluntary or public sector provider, which we will then fund to use their ideas about how to pilot schemes to help to effectively rehabilitate offenders. We have six different memorandums of understanding with either local authorities or police chiefs to deliver a justice reinvestment framework to look at more effectively rehabilitating offenders and to deliver exactly the objectives that the hon. Lady set out. Guess what—they are likely to be performing precisely the kinds of intervention that she mentioned in her speech. 

We recognise that there is no state funding left to start programmes and certainly no state funding left to underwrite custody plus, so we will try to free up our professionals and volunteers and the private sector to come forward with innovative approaches to try to deliver the objective that we all share, which is to improve rehabilitation and the appalling rate of reoffending once offenders get into our justice system. We need to find ways of creating resources to deliver interventions. Hence the whole social finance investment in Peterborough, which is so welcome. Hence the fact that Serco is putting in resources to deal with offenders in Doncaster. That pattern will be repeated in pilots across the system to find a different way of delivering the objectives that the hon. Lady set out. 

Karl Turner (Kingston upon Hull East) (Lab):  The Government and the Opposition do not differ much on custody plus. Will the Minister justify and rationalise the removal of the provisions in the legislation? I am utterly confused. 

Mr Blunt:  Let me set out the detail of the custody plus provisions. I am trying to lay out the basic difference of approach between this Administration and our predecessor, and how we are going to use the creativity and talent of the people involved in offender management more effectively to deliver the outcome that we all seek. That is why we are piloting different schemes to identify the best way to draw on those resources. 

Kate Green (Stretford and Urmston) (Lab):  Will the Minister give way? 

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Mr Blunt:  If the hon. Lady will forgive me, I will deal with the points raised by the hon. Member for Kingston upon Hull East and then I will take her intervention. 

The clause repeals the uncommenced provisions in the Criminal Justice Act 2003, which would have introduced custody plus and its variant, intermittent custody. The custody plus provisions introduced a new scheme for adult custodial sentences of less than 12 months. It was designed to ensure that all such sentences consisted of a short period of custody followed by at least six months on licence. The provisions were not commenced under the previous Government, who accepted that they were unaffordable and, in the case of intermittent custody, unworkable. That remains the case, and it is therefore right that we should take the opportunity to repeal those uncommenced provisions. By remaining on the statute book, they have added considerably to the complexity of subsequent legislation and have complicated an already wretchedly complex sentencing framework. 

The Bill will bring adult custodial sentences of less than 12 months within the scope of the 2003 Act, so that such sentences will be governed by one statute rather than, as currently happens, having release arrangements that are still dealt with under the Criminal Justice Act 1991. That was another legacy of the failure to commence custody plus. Clause 72 will give effect to schedule 9, which will make amendments consequential to the repeal of sections 181 to 188 of the 2003 Act. 

Kate Green:  Has the Minister considered any evidence of the likely efficacy, in the form of reconviction rates, of the models that he will experiment with in place of custody plus? 

Mr Blunt:  We simply could not deliver custody plus, and intermittent custody was unworkable. If that has resulted in a legislative regime that brings the whole system into disrepute, it is about time that something was done about clearing it up. There is a difference of approach between the Opposition and us: we agree about the objectives of driving down rehabilitation, but we differ about whether mandating our professionals on precisely what to do under statute is appropriate. Such an approach was followed by unbelievable amounts of performance management, target-setting and central direction to the Prison Service and the probation service about precisely how they should deal with the people in their charge, as though those services did not actually share the policy objectives of the Administration and had to be told precisely how to undertake their responsibilities. That took away from them the flexibility and, frankly, the professional responsibility to deliver the objectives that we all share. 

I have reduced 60 pages of direction to the probation service to three, which is entirely consistent with taking off statutory prescriptions that we cannot afford and that cannot be made to work. That will enable the entire framework to be simpler, more consistent and easier to apply, and it will show people on the ground that—strangely enough—we respect the fact that they share the objectives that we are all trying to achieve. 

Helen Goodman:  The Justice Committee’s report on “The Role of the Probation Service” demonstrated that probation officers did not spend enough face-to-face

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time with clients, and that the amount of time they spent in what might loosely be called bureaucratic tasks was too high. It would be perfectly sensible for the Minister to address that, and I would have no quarrel with him about it. 

Similarly, as the Minister knows, it was the previous Administration who set up the Peterborough pilot, and having a pilot is a good idea, although the possibility of scaling it up is limited. However, he is not addressing the scope, which may be lost, for the probation service to supervise someone when they are released after a sentence of less than 12 months. He seems to want to involve the whole world except the probation service, which cannot be sensible. 

11.30 am 

Mr Blunt:  We do not have to mandate the probation service by statute. We will find ways, and it will come forward with others, particularly through the two probation trust pilots that we are running, to help deal with such offenders. The probation service is already doing so under integrated offender management and through the management of persistent and prolific offenders, with the police, the local authorities and the Prison Service. That is already happening. As we do not have the resources to underpin a statutory mandate from Parliament, it is sensible to get shot of the statute provision, and in doing so, enable our professionals to deliver the outcome that we all seek, help enfranchise them as far as possible to best use the resources that we put at their disposal, and find new resources for the criminal justice system, not least as part of our wider social justice agenda. 

Ben Gummer:  I fully agree with my hon. Friend’s reasoning about removing the provision from the statute book. I believe passionately in the principle behind intermittent sentences, which I hope we can introduce in future. However, the present system will not have the capacity, finances or management ability to provide for such sentences in the next Parliament or the one after that. It will take substantial reform to introduce such a system; it took the Norwegians a long time to get there. When the prison system is able to look at the matter afresh, it will be appropriate for another Parliament to do so, and on a far wider basis than in the current statute provision, which would serve no purpose in this Parliament or the next. 

Mr Blunt:  I thank my hon. Friend for that intervention; there speaks the future. On that note, I conclude my remarks. 

Kate Green:  It is a pleasure to serve under your chairmanship, Mr Hollobone. 

I endorse the thrust of the remarks made by the hon. Member for Ipswich. I, too, have been a long-standing supporter of the concept of custody plus, intermittent sentences and a proper combination, where appropriate, of short periods of custodial sentencing followed by intensive and effective supervision in the community. When the Labour party was in government, we sought to create such a system using custody plus as a framework. 

I am surprised by the Minister’s degree of anger, because there is broad agreement on that model across the House. The argument seems to be about resourcing

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the model and about freedom for professionals in the system—although we are not clear from the Minister’s exchange with my hon. Friend the Member for Bishop Auckland whether that freedom would extend to the probation service—to determine, without statutory guidance, whether to engage in intensive supervisory activity with offenders in the community. 

The provision relates to sentencers as well as to those who deliver sentences, and we need a framework that encourages them to make appropriate use of the community element of sentencing options. If we devise sentences that draw sentencers in that direction when appropriate, we will reduce, to a degree, the amount of money that we have to spend on the custodial system. The Minister seemed to imply that custody plus and intensive community activity would pile on cost, and we accept that the system is not cost free; but he does not acknowledge that if we designed more effective sentences that resulted in people spending less time in custody, there would be at least some measurable impact on the costs borne in the Prison Service. 

As my hon. Friend the Member for Bishop Auckland said, there would be other wider cost implications for society, too, such as lower reconviction rates, which would result from good quality community interventions for offenders who would otherwise receive short sentences. In addition, there would be a wider impact on offenders’ domestic and social circumstances. In particular, if people spend less time in custody and are engaged in community programmes instead, it is more likely that their family will hold together and that they will keep their home. They might also be able to keep a job, which is one reason why I am keen on considering intermittent custody, which enables people who hold a job to be at work during the working week and, if appropriate, to serve a short period of time in custody when they are not at work. 

The Minister should be more willing to accept the thrust of the Opposition’s argument. He should not be so angry about the fact that he is not keen on the way the provisions would pan out. Instead, he should look for constructive ways to achieve the objectives that it seems we all share. If the Government are doing that, can the Minister guarantee that there will be resources to make it effective? To expect lower reconviction rates without putting the means in place to achieve them is to box himself into a corner. It cannot work. 

Ben Gummer:  I am grateful to the hon. Lady for giving way. I am particularly pleased about her promotion, which was a pleasure to many of us on the Government Benches. 

Mr Blunt:  It was not a surprise. 

Ben Gummer:  No. 

The Minister is a man slow to anger, and I share that anger now. When custody plus was introduced in legislation by the previous Government, many of us interested in penal reform were pleased with the thrust of the measure and the idea behind it. The hon. Lady will remember the significant amount of press coverage when custody plus was launched. Yet it was never implemented. It was

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another fraud on the public by the previous Government; something was announced, but never actually carried out. Now we must tidy up the statute book to make sure that we have a proper rehabilitation regime without the clutter, which will never be used. 

Kate Green:  I am grateful to the hon. Gentleman. It may be naive of me to hope that the Government will introduce an effective rehabilitation regime without statutory provision when the resources are not being made available to guarantee that it will take place. I want the provision retained on the statute book. I want to see the Government working towards making it operational, rather than decrying it and the difficulties. I welcome the commitments given by Government Members about the value of good quality, rehabilitative community sentences and, as we debate later clauses, we shall probe further the degree to which they will put their money where their mouth is. In the meantime, I find it difficult to support the withdrawal of custody plus. 

Question put, That the clause stand part of the Bill. 

The Committee divided: Ayes 11, Noes 7. 

Division No. 40 ]  


Blunt, Mr Crispin   

Brake, rh Tom   

Buckland, Mr Robert   

Crockart, Mike   

Djanogly, Mr Jonathan   

Gummer, Ben   

Hinds, Damian   

Lee, Jessica   

Soubry, Anna   

Wallace, Mr Ben   

Wright, Jeremy   


Cunningham, Alex   

Goodman, Helen   

Green, Kate   

Llwyd, rh Mr Elfyn   

Reynolds, Jonathan   

Slaughter, Mr Andy   

Watts, Mr Dave   

Question accordingly agreed to.  

Clause 72 ordered to stand part of the Bill.  

Schedule 9 agreed to.  

Clause 73 ordered to stand part of the Bill.  

Schedule 10 

Amendment of enactments relating to bail 

Mr Llwyd:  I beg to move amendment 282, page 165, line 33, leave out paragraph 3. 

The Chair:  With this it will be convenient to discuss the following: 

Amendment 283, page 166, schedule 10, leave out line 14. 

Amendment 284, page 166, schedule 10, leave out line 42. 

Amendment 315, page 169, line 7, schedule 10, leave out paragraph 25. 

Amendment 316, page 169, line 12, schedule 10, leave out paragraph 26. 

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Mr Llwyd:  We are not in for a marathon. The amendments would remove the age criterion from the bail reforms, so that they applied to children as well as adults. They would also extend the availability of remand from its being only for domestic violence cases, as the Government have proposed, to its being for any case where there are substantial grounds for believing that if released, the defendant would commit an offence that caused physical or mental injury to any other person. The amendments would also retain many of the provisions under the status quo for adult bail. They would ensure that there were only minor alterations to part 1 of the Bail Act 1976. 

The first set of amendments would remove the Government’s new plan to impose the “any real prospect” test. I understand why the test has been applied and I fully applaud what the Government are attempting to do. I believe, however, that there are possible unintended consequences that we should discuss. None of us would want to see people remanded in custody for offences for which they will not be sentenced to a term of imprisonment, if found guilty. We all start from that point. However, the test is too narrow and could lead, for example, to dangerous offenders or offenders who may abscond being released on to the streets. 

In 2010, 31,664 offenders absconded while awaiting trial. That is a vastly reduced figure compared with the 57,500 who absconded in 2003. Although the latest figure is still too high, it is foreseeable that it will increase if the Government make it more difficult for the courts to impose bail on defendants who may abscond. In short, the number of absconders has fallen. Now is perhaps not the time to allow that figure to increase. 

The Prison Reform Trust, while welcoming the intention to remove the power of courts to remand in custody defendants who would be unlikely to receive a custodial sentence, refers to the 2007 figures. That year, some 11,400 of the 55,000 people remanded in custody were subsequently acquitted—21%—while another 30% received a non-custodial sentence. The Government are rightly responding to that problem. The average waiting time for those remanded in custody was 13 weeks. Those legally innocent people were subjected to a damaging legal sanction. The fact that a majority of people remanded in prison awaiting trial did not subsequently receive a custodial sentence clearly demonstrates that the current practice is unjust, arbitrary and imposes punishments that are sometimes disproportionate to the offence. 

While I accept the Government’s intention and, in effect, fully agree with the need for something to be done, I refer again to the law of unintended consequences. There is some concern that the any real prospect test may prejudice some cases at a later stage. It is foreseeable that juries or judges may view an earlier decision to remand a defendant in custody as a tacit implication of guilt, which is not the case. The belief is that defendants are innocent until proven guilty. The Magistrates’ Association said: 

“It effectively places the court considering bail in the same position as a sentencing court; it is unclear whether it is for the Crown’s case to be taken at its highest. Many bail cases are required to be decided on minimal information without the availability of reports and ability of defence solicitors to effectively take instructions and mitigate. This but for all the most obvious or simple cases [where bail would usually be granted anyway] is seen as a fundamental weakness of the test.” 

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There is also concern that defendants may have the opportunity to interfere with witnesses to force them to change their evidence. That is a fundamental danger. 

The other amendments seek to extend the caveat for domestic violence to all cases where there is a serious risk of physical or mental injury. Justice has noted a 

“number of cases where there is no real prospect of a custodial sentence but there is serious risk, that cannot be dealt with by conditional bail, that a defendant will commit serious violent or sexual offences while on bail or interfere with witnesses…a remand in custody in that instance should continue to be available.” 

I accept the good will behind the Government’s amendments, but there is unfortunately a glaring possibility of unintended consequences. As the Magistrates Association has made its remarks so stridently, I urge the Minister to pause on this part of the Bill. 

11.45 am 

Anna Soubry (Broxtowe) (Con):  Does the right hon. Gentleman share my concern that when analysing the figures it is important to remember that some defendants may receive a non-custodial sentence because they have spent a period on remand and there may have been changes in their circumstances, notably becoming free of drugs? Does he agree that there is evidence that a sentencing judge may decide that because of advances made on remand a non-custodial disposal is appropriate in the particular circumstances, and that that may skew the figures? 

Mr Llwyd:  I agree. That is an appropriate point, which is evidence based. 

Mr Blunt:  I thank the right hon. Gentleman for his support in principle for what we are seeking to do. The amendments in the group before us all affect provisions relating to defendants under the age of 18. Amendments 283, 284, 315 and 316 refer to matters of substance, and amendment 282 removes provisions to ensure that the same definitions are used throughout the Bail Act 1976. 

Amendment 284 would cause the restriction on remanding in custody to apply to defendants under 18. The effect would be to remove the condition that the defendant has attained the age of 18 when applying the no real prospect of custody test in parts 1 and 1A of schedule 1 to the Bail Act. Amendment 283 makes a similar change to section 7(5A) when a person is arrested for absconding or breaking his bail conditions. 

Amendments 315 and 316 affect part 2 of schedule 1 to the 1976 Act in a similar way to amendments 284 and 289. Part 2 of schedule 1 concerns defendants accused or convicted of non-imprisonable offences. To ensure a uniform approach for the no real prospect of custody test, paragraphs 25 and 26 of schedule 10 to the Bill amend part 2 of schedule 1 to the 1976 Act so that certain exceptions to the grant of bail apply only to those aged under 18 or who are convicted of an offence. The effect of amendments 315 and 316 will be to expand the restriction on custody in part 2 of schedule 1 so that it applies to both adults and those aged under 18 alike. 

Given the right hon. Gentleman’s support in principle, I understand why it may seem strange that a provision designed to make it less likely that defendants are remanded in custody should be limited to adults. Surely

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defendants under the age of 18 should be the first to benefit from such a provision. I assure the right hon. Gentleman and the Committee that defendants under the age of 18 are not excluded from the test, but it is applied to them differently, as I will explain. 

The reason is that the consequences of being refused bail are different for those aged under 18, and do not necessarily involve remand to custody in the usual sense. In most instances, a defendant aged under 18 who is refused bail will be remanded to local authority accommodation. That will sometimes mean that they are placed in a children’s home. In other cases, they will return to their own homes subject to bail-type conditions. In all such cases, the defendant is accommodated in non-secure accommodation and, critically, the local authority is responsible for ensuring and promoting their welfare during that difficult period. As paragraph 386 of the explanatory notes states, the existing grounds for refusing bail will continue to apply to those aged under 18 to ensure that defendants 

“aged under 18 who would otherwise be granted bail under the new test can continue to be given ‘looked after’ status by the local authority. This means that the person is assessed by the local authority and receives appropriate assistance and supervision.” 

Helen Goodman:  The Minister is making an interesting point. It would be helpful if he could give us some statistics on what is happening to those young people. If he does not have the statistics now, perhaps he could write to members of the Committee before Report. 

Mr Blunt:  I should be grateful if the hon. Lady could assist me and my officials in giving information to the Committee. Perhaps she could frame her request slightly more precisely. If she intervenes later, perhaps she will give more details on exactly which data she wants. She has provided quite a wide target for my team to engage with; I should be grateful if she could narrow it to precisely the data she requires. 

The equivalent of a no real prospect of custody test is applied in respect of defendants aged under 18 in chapter 3 of part 3 of the Bill. However, in part 3, the test is phrased in the positive rather than the negative. Therefore, a condition in one of the tests that must be met before a defendant aged under 18 can be remanded in secure youth detention accommodation is that there is a real prospect of custody. Provisions in chapter 3 include measures to restrict the use of secure remand so that in most cases a defendant aged under 18 receives a remand to local authority accommodation. Only if one of the two tests set out in chapter 3 is met can a defendant aged under 18 be remanded securely in the way that an adult who is not granted bail may be remanded. An adult who is remanded in custody is sent to prison. The equivalent for a defendant aged under 18 is detention in a specific juvenile custodial estate: a secure children’s home, a secure training centre or a juvenile young offenders institution. 

The test for defendants aged under 18 is similar to those that apply under the Bail Act. The first set of tests applies where the offender is charged with a serious violent or sexual offence. The second set applies where the offender has offended while they have been on

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remand, and it is here that the no real prospect of custody test applies as it does for adults under the Bail Act 1976. 

Amendment 282 affects paragraph 3 of schedule 10, which is merely a drafting provision. Provisions elsewhere in the Bill change the definition of a young person so that it extends to those aged 17, and the expression “child or young person” is therefore used in various places to mean under the age of 18. Paragraph 3 of schedule 10 amends section 3(7) of the 1976 Act. In that section, the existing reference to a child or young person is intended to mean those under 17. It is necessary to amend it to make that clear. Removing that drafting change would therefore cause confusion. In light of all that, I hope that the right hon. Member for Dwyfor Meirionnydd will withdraw the amendment. 

Mr Llwyd:  I thank the Minister for that explanation. It is much clearer and considerably more humane than I understood when I first read the Bill. To a certain extent, I am placated and satisfied. I am grateful to the Minister. I therefore beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Helen Goodman:  I beg to move amendment 363, page 166, line 32, schedule 10,leave out paragraphs 7 to 18. 

The Chair:  With this it will be convenient to discuss amendment 364, page 168, line 15, schedule 10, leave out paragraphs 19 to 23. 

Helen Goodman:  I am afraid we are going to have more principled disagreements in the discussion of these amendments. I want to set them in context. Currently, the Bail Act provides different rules for three classes of offender. The rules are different for people who are accused of committing indictable or either way offences. There is a set of rules for people accused of committing summary offences and a separate set of rules for people accused of committing non-imprisonable offences. 

I confess that when I first heard about what the Government were going to do with introducing the no real prospect test, I assumed that they were just talking about non-imprisonable offences. I think that a lot of people who do not think about such things all the time might have had that understanding. The no real prospect test, which the Minister is introducing, has a description that is perhaps—I do not want to say misleading, because that would suggest that it was unparliamentary—open to misunderstanding. 

My amendments are related to indictable or summary offences. We would leave the Government’s no real prospect test in place for non-imprisonable offences. I will say what they are. Again, I think that that will be of great interest to the right hon. Member for Carshalton and Wallington. They include making false statements to obtain a driving licence, being drunk and disorderly, evading TV licence payment and failing to produce a railway ticket. They are offences on which what the Government are saying is fairly reasonable. The number of people remanded in that category is around 1%, which is about 9,000 a year. We are able to accept the Government’s proposal for that class of offence. However,

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the Opposition cannot accept it for summary and indictable offences. Amendments 363 and 364 seek to reverse the Government’s proposals on part 1 and part 1A offences. 

At the moment, people are presumed to get bail unless they are expected to commit further offences, expected to abscond or not turn up, or expected to interfere with witnesses or to be a danger to others. The tests are different for the three different classes of offence. At present, there would have to be a high level of risk for a non-imprisonable offence, and medium risk of committing another offence, interfering with witnesses or being a danger to others for a summary offence. The level of evidence needed for an indictable offence is lower, because the offences are more serious. Taking into account the seriousness of such offences, introducing the no real prospect test would be risky. 

I remind the Committee of the classes of offence we are talking about. Indictable offences include grievous bodily harm, sexual assault, fraud, perverting the course of justice, robbery and burglary. Summary offences include assault, theft, robbery and burglary. They are so serious that it would not be sensible for the Government to use the no real prospect test. The kind of offences that people alleged to have committed those crimes would commit, the consequences if they abscond, the risks if they interfere with witnesses and the danger to others are serious. What the Government are doing with the no real prospect test undermines community safety and a proper judicial process. 

12 noon 

I remind the Committee of what is going on at the moment. As the right hon. Member for Dwyfor Meirionnydd said, 30,000 people abscond a year. If we go down the Government’s path of having a no real prospect test, that number is likely to increase. In answer to a parliamentary question, the Minister told me that the number of offences committed while people are on bail is 70,000 a year. That is 200 a day, which is an extraordinarily high number, yet the Minister is going to relax the number of people who are remanded to prison, so the number can only go up. 

The hon. Member for Pendle (Andrew Stephenson), who has taken an interest in this issue, has discovered that the offences committed while people were on bail in 2009 included 27 murders. The Minister wants to save money, but saving money and prison places at the expense of 70,000 offences a year is simply not acceptable. It is not how to promote community safety. 

The no real prospect test could undermine the justice system in another way. The problem is that there could be grounds for an appeal if someone’s prospects of being found guilty have been considered and they have been given bail at the first hearing and then subsequently been found guilty at the final trial. The Minister needs to take this measure away and look at it in a completely different manner. A decision on bail is completely different from a decision on sentencing. It is a different sort of a thing. What the Minister is doing is conflating those two things in a most unhelpful way that is only likely to increase the level of crime in this country. 

I hope that I have made it clear that we are extremely concerned about this measure. Our objection is fundamental. It is one of the worst things in this entire Bill and I will definitely press the amendments to a vote, unless the Minister tells me that he accepts them. 

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Mr Blunt:  The hon. Lady’s charm tempts me. However, I will have to disappoint her. She presages her remarks by saying that there was a difference of principle between us. Her amendments are fatal in her terms to 99% of the underlying intentions. The one example that she did give us where she was offering us support was around non-imprisonable offences, which illustrates the issue that we are trying to address with this clause. 

Schedule 10 makes a number of amendments to the Bail Act that will restrict the availability of remand in custody. At present, the question of whether it is likely that a defendant will be sentenced to imprisonment if convicted is not a consideration in deciding whether he or she should be granted bail. The principle underlying this provision is that it should be such a consideration—that is the principle that we are delivering with this schedule. It is said that decisions regarding remand sentences are completely separate and they are as the law now stands. The issue that this Committee and Parliament have to address is whether they ought to be. 

The current arrangements mean that a defendant can be remanded in custody—for example, to prevent him or her from committing further offences—even though the court would not consider itself justified in imposing a prison sentence for that reason after their conviction. The hon. Lady has conceded that point of principle. She would support us on non-imprisonable offences, because of the limited number of circumstances—she said that the figure was 1%, which I have no reason to doubt—but she conceded that if the offence was non-imprisonable, the offender should not be remanded in custody, so we have her support on that point. All we seek to do with the provisions that she is declining to support is to use the practicality of whether someone will reasonably be given a prison sentence as a bail test. 

The existing position should strike people as both odd and unjust. Where the prevention of further offending is not a sufficient reason for imprisoning people who have been convicted, how can we justify detaining them before they have even been tried? Another reason for remanding defendants in custody is to secure their attendance at court, but doing so is a very expensive way of getting them in front of the magistrates, and it is questionable whether that is necessary. If defendants fail to appear, they can be tried in their absence, and that already happens for thousands of people who are granted bail and do not turn up. When they are granted bail, they are warned that the case may proceed without them if they fail to surrender, and if they do not appear the trial will go ahead. 

Remand in custody is often used for someone charged with minor offences to ensure access to health services, such as mental health treatment, in prisons, but that is not an appropriate way to access treatment resources. In general, defendants should not be remanded in custody when it is apparent to the court that there is no real prospect of the defendant being imprisoned if they are convicted. That is not some Alice in Wonderland question of having the sentence first and the verdict afterwards. The court is not expected to engage in a sentencing exercise before the trial; the provision only affects cases in which it is clear at the outset that the alleged crime is not serious enough to warrant a custodial sentence. When that is the case, remanding the defendant in custody is generally disproportionate and it is not a sensible use of prison, as that sort of defendant does not pose a serious threat to public safety. 

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Mr Llwyd:  I have one specific question. If a person is obviously suffering psychiatric problems and, even at first instance, there might be a problem about their fitness to plead, would the court, given the likelihood of its trying a non-imprisonable offence, be able to remand them for psychiatric reports under the proposed law? 

Mr Blunt:  I will obtain a definitive answer for the right hon. Gentleman, but I say to him that, in those circumstances, we should not be using the justice system to detain someone who needs to be detained. That is a mental health issue that should be dealt with under an appropriate mental health order. 

Mr Llwyd:  At the end of the day, as I have seen in practice, a person under those circumstances—very disorganised, in huge confusion and having psychiatric problems—might be remanded in custody simply to sort out whether he or she is capable of giving a plea to the court, and the judges may ask for a report to be prepared within 14 days or whatever. All I am asking is whether there is flexibility in those, thankfully, very small number of cases. 

Mr Blunt:  If there is no prospect of that person going to prison as a result of the offence for which they have been arraigned, they would not pass the no prospect test, but if there is a mental health requirement, that should be properly proceeded with under the mental health arrangements. We are not here to abuse the justice system at very significant expense because other parts of our whole social justice system are not working properly. Frankly, too many people with either mental health or addictive health issues should never have made their way into the justice system in the first place. If we had a system—which is what we are attending to—that delivered earlier intervention, with mental health diversion, better addiction treatment and all the things we are attempting, we would end up in a better place, rather than having people reposing in custody who, frankly, should not be there. I can understand why we got into this position: because the practicality for magistrates, seeing a situation, is that they think, “Well, if we pop him inside, he’ll get some health treatment and all sorts of other things sorted out for him”, but that is not what prison is for. 

Kate Green:  I absolutely understand where the Minister is coming from, and I have made such decisions, when there seemed to be no other way of getting the mental health assessment required other than by ensuring that that person is in custody in order for the psychiatric assessment to be made. It is not a good situation—he is absolutely right—but can he guarantee proper mental health assessments for people if they are not diverted to custody, which I do not want to see? He sounds alarmed by the failure of the system so far, but what guarantees can he give that it will be put right? 

Mr Blunt:  That is why the Government have pledged to put in place mental health diversion and liaison in every police custody suite and every court by 2014-15. We are conscious of the serious issue and are putting in resources and everything else to attempt to address it. 

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Mr Watts:  There is a great deal of sympathy for the Minister’s position, but he is talking about providing alternative services in 2014-15, but when will the Bill come into effect? Will there be a gap between the effective service being put in place and the introduction of the Bill? 

Mr Blunt:  The introduction of mental health diversion and liaison by 2014 is not a legislative thing but a policy issue which is being put in place by the Department of Health. My right hon. Friends the Secretary of State for Health and the Justice Secretary together made that commitment last year. 

In answer to the specific point made by the right hon. Member for Dwyfor Meirionnydd about remand: defendants can be remanded in custody for reports. That might go some way towards addressing the circumstances to which he referred. 

Mr Watts:  This is an important point. We accept that there is an alternative to the present system but, potentially, there is a gap between the introduction of the Bill and the future provision by the Department of Health. If so, Labour Members at least would be interested to know how such people will be dealt with in the gap. 

Mr Blunt:  We are talking about something different. If people ought to be detained under mental health legislation, they should be detained under mental health legislation—they should not be part of the criminal justice system. There should be no confusion about the purpose of mental health liaison and diversion: if people are coming into the criminal justice system because they have committed crimes, it would be sensible to ensure that we have addressed the mental health issues before we go on, as we have to, to address the justice issues. Any justice disposal might then be made in the light of the proper mental health assessment and treatment. That is the system we can more effectively work towards. 

If, however, magistrates are faced with someone who plainly should be detained for the safety of the community, but who has not committed an offence, and if the assessment is that the person is a risk because of mental health, then we should use the proper legislation and framework—it ought not to be the criminal justice framework that results in those people being detained. Defendants who do not pose such a threat will not pass the no real prospect test and so will still be liable to be remanded in custody. 

Some responses to the Green Paper argued that special considerations might apply if offences were committed in a domestic setting, in that an offence that does not require custody might nevertheless imply a risk of domestic violence if the defendant were bailed. We will come on to such a discussion with later groups of amendments. We have recognised the force of that argument and have taken account of it. Remand places are too expensive to waste on defendants who do not need them. We want to ensure that they are used only where it is necessary to protect the public. I shall obviously invite the hon. Lady to withdraw her amendment; however, given the way in which she spoke to it, it does not sound as though I shall have much luck. 

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12.15 pm 

Mr Slaughter:  The Minister is completely out of luck, because I was not going to speak on the amendments. However, having heard what he said, I am, far from being persuaded, alarmed. In conflating non-imprisonable offences and offences assessed using the no real prospect test, he has, far from setting our minds at rest, identified the problem that we see. It is not only we who see it, but sentencers. The Minister will probably be familiar with the words of John Thornhill, the chairman of the Magistrates Association, who said of the provision: 

“We are disappointed that the government has not understood our arguments for maintaining the right to remand in custody as a bail option for every defendant. Whilst the ‘no real prospect test’ provides for a degree of discretion it requires a presumption as to sentence at a very early stage, which is not in the interests of justice.” 

That is right. 

I appreciate that I may be speaking as much as a lawyer as a politician, but the process of considering bail is discrete from the process of sentencing, and the provision puts impossible burdens on sentencers—tribunals and courts—to decide the likely sentence at a very early stage of proceedings. 

The Government need to think very carefully about what they are doing, because they are overturning a substantial body of law and practice, which has grown up under the Bail Acts over many years. The Bail Acts have often been criticised by the Conservative party, which says that bail is given too freely. I find what is happening now, which stands that on its head completely, difficult to understand. 

Mr Blunt:  May I make the position clear to the hon. Gentleman? He has suggested that an intolerable burden will be placed on people making assessments, and that is not the case. The provision applies only where it is clear on the information before the court that the defendant has no real prospect of being imprisoned if convicted. The court is not expected to carry out a detailed assessment, and if the information is equivocal the provision will not apply. That is clear, and it takes precisely the position of principle that the hon. Member for Bishop Auckland concedes: with non-imprisonable offences the provision would have Opposition support. The cases that we are concerned with are ones in which people will not go to prison. 

Mr Slaughter:  The Minister is struggling. Just saying that something is clear does not mean that it is clear. The bail regime sets out a variety of criteria to be used when considering bail. The Minister mentioned the issue of further offending: to my mind, it is fundamental to the rule of law that where there is a severe risk of further offending people should not necessarily be told immediately that they can go from the court. 

I am sure that when we get to the amendments on indeterminate public protection sentences, we shall see whether the Government have any solution to the problem of people who are a clear danger to the public being released into the community. In the present case—in the wake of serious rioting, which apparently does affect the Government’s view on clause 71—the Minister is saying that they are prepared blithely to tear up the Bail Acts and that criteria such as further offending, surrender to bail and intimidation of witnesses can all be dealt with in the casual manner that has been described. 

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The idea that the solution is a great increase in trials in absentia is ludicrous. A trial in absentia may perhaps happen sometimes for minor motoring offences and things of that kind, but I should have thought that the courts believe that every trial without a defendant present is a circumstance for regret. 

Mr Robert Buckland (South Swindon) (Con):  If the hon. Gentleman had been speaking 10 years ago he would have been right about more serious offences, but decisions of the Court of Appeal—there was a decision eight or nine years ago—have changed the regime on trials in absentia. They are now somewhat more common, even in the Crown court, than they used to be. 

I would not say that that is a desirable circumstance, but a series of tests is applied that makes them more common than they were, and most practitioners will have had some experience in the Crown court of a trial in absentia; so I do not think that the hon. Gentleman’s point is as strong as he thinks. 

Mr Slaughter:  The hon. Gentleman, as he often does, makes my point for me, and says that such a consequence is to be regretted. Indeed, the Minister suggests that an increase in trial in absentia could be a possible outcome of the provisions becoming law. That is not something we would wish for, and neither would we wish victims or witnesses to be put at risk. Louise Casey, the commissioner for victims and witnesses, stated: 

“Victims’ groups during consultation have expressed alarm about proposals to remove the option of remand where the offence with which they are being charged is unlikely to attract a custodial sentence. The removal of a remand in custody for defendants unlikely to receive a custodial sentence does not recognise the other safeguards which the Bail Act provides.” 

We agree with that and that where possible, judicial discretion should be preferred and not curtailed in the way it is now—that goes back to the point raised by the Magistrates Association. 

By withdrawing clause 71, the Minister has conceded that it is appropriate for magistrates to have greatly enhanced sentencing powers and the ability to sentence for 12, rather than six, months for a single offence. The Government should think again about that issue, because it is a far more significant change than it is presented as being. Either the Government are being disingenuous, or they have not realised the implications of the provision. 

I suspect—I think my colleagues share this view—that what lies behind this measure is an attempt to save money. It has not attracted the same degree of notoriety, but it is comparable with the provision for a 50% discount on sentencing for an early guilty plea, which aimed to save £140 million. The legislation under discussion would save rather less, although the Government say that it will still save a significant sum of money. Such provisions are a way of reducing the prison population without being seen to be “soft on crime”—in other words, without reducing tariffs or saying to the general public and Back Benchers from the Minister’s party that we are taking a less punitive approach to incarceration. 

Given the cuts that the Department has to make, there must be a reduction in the prison population. The Government have conceded that, and they are seeking to make that reduction. However, it will have unintended

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consequences, which will weaken judicial discretion and the rule of law, and allow people to be released inappropriately into the community. 


Kate Green:  In my experience, bail decisions are among the hardest decisions taken by lay magistrates, particularly if they are sitting alone, which can happen in some circumstances, including the early stages of a case when less information is available to provide a sense of whether a custodial sentence is a real prospect.  

I have a few questions for the Minister, and a final point for him to consider. I am concerned that we do not have enough information about the implications of the proposal and how it will translate in practice. Some of my written questions ask for a breakdown of who is remanded in custody, on what grounds, and their gender and ethnic make-up, and that information is not as available as I would have liked. I would be grateful if the Minister told us to what degree he intends to monitor those who receive remand on bail should this change come through, and the nature of those people who will continue to be remanded in custody. What breakdown will he track of the reasons for remand in custody and the gender, ethnic and age mix of those defendants, and so on? 

I should also be grateful if the Minister assured us that if the provisions come into effect, there will be decent training for decision makers. In my view, it would be dangerous to ask decision makers to go in and determine whether there is a reasonable prospect of custody, without a substantial rethink of the training offered, particularly to lay magistrates, who will struggle to make such decisions on the basis of the training that they currently receive. I hope that the Minister will tell the Committee what training he plans to put in place for those decision makers. I would be grateful if he told us what monitoring will be undertaken in relation to the ultimate sentences that people receive for offences and what happens to reoffending rates. 

Finally, will the Minister clarify something that he said in response, I think, to my hon. Friend the Member for Bishop Auckland? He said that now, the ultimate sentence is not a relevant consideration for bail; in the future, it will be a relevant consideration. Will he clarify whether he has considered whether it will be a relevant consideration or the only relevant consideration and, if it is the latter, why he does not think that it could be one of a number of considerations but has to be the sole consideration that courts should take into account? 

Mr Blunt:  I shall respond to the questions asked by the hon. Member for Stretford and Urmston. I was asked about the statistical data that will follow from this. Happily, the statistics and data are now largely out of my hands and in the hands of the chief statistician; it is up to her to ensure that they are beyond reproach. If I have not satisfied the hon. Lady so far with my written answers to her questions, I am unlikely to be able to improve on that, because have done my best with those questions, but of course, as with any policy being implemented, the consequences will be followed. The criminal justice area is one in which a very substantial amount of data will be available to us and available to her and, of course, the public. 

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I noted the hon. Lady’s point about training for decision makers, but I hope that she will understand that in this context the no real prospect test is not met if it is not clear that the outcome will be a non-custodial sentence, based on the offence. On the hon. Lady’s final point about whether it is “a” or “the”, it is “a”. The point that we have been discussing is one of the requirements, one of the tests, that will have to be met, along with the others in the Bail Act 1976, so it is adding to those. 

Helen Goodman:  I thought that this morning the Minister would come to the Committee and say that there was a problem with the 11,000 people who are remanded to prison and subsequently given a non-custodial sentence and that that was a justice issue. He has not mentioned that group of people. Indeed, they have been mentioned only by the hon. Member for Broxtowe, who made the very sensible point that that figure was inflated, and that one reason why some of those people do not go on to receive a custodial sentence is that they have already served some time in prison. 

I am afraid that what has been revealed is that the Government are not actually interested in the justice issues. They are not interested in whether the bail decision will undermine the subsequent court process by allowing more people to interfere with witnesses, by enabling more people not to turn up. They are not interested in community safety. They are not concerned that, at the moment, 70,000 crimes are committed every year, and that number will only go up. What they are interested in is saving money. The estimate that they have included in the impact assessment for the Bill is that the measure will save 1,300 prison places and £40 million. Opposition Members do not think that this is a reasonable way to save £40 million, because it undermines the justice system and damages community safety. 

May I respond to the hon. Gentleman’s suggestion that I was being inconsistent? My point about distinguishing the non-imprisonable offences is that those are the only ones where it can really be known that there is no real prospect. I therefore intend to press the amendment to a vote. 

12.30 pm 

Question put, That the amendment be made. 

The Committee divided: Ayes 8, Noes 11. 

Division No. 41 ]  


Cunningham, Alex   

Goodman, Helen   

Green, Kate   

Llwyd, rh Mr Elfyn   

Reynolds, Jonathan   

Slaughter, Mr Andy   

Turner, Karl   

Watts, Mr Dave   


Blunt, Mr Crispin   

Brake, rh Tom   

Buckland, Mr Robert   

Crockart, Mike   

Djanogly, Mr Jonathan   

Gummer, Ben   

Hinds, Damian   

Lee, Jessica   

Soubry, Anna   

Wallace, Mr Ben   

Wright, Jeremy   

Question accordingly negatived.  

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Helen Goodman:  I beg to move amendment 365, in schedule 10, page 170, line 5, at end add— 

‘29A After section 1 of the Bail (Amendment) Act 1993 at end insert—

“1A Appeal against a decision granting bail in the Crown Court

(1) Where a Crown Court grants bail to a person who is charged with or convicted of an offence triable on indictment the prosecution may appeal to another judge of the Crown Court against the granting of bail.

(2) Subsection (1) above applies only where the prosecution is conducted—

(a) by or on behalf of the Director of Public Prosecutions; or

(b) by a person who falls within such a class or description of person as may be prescribed for purposes of this section by order made by the Secretary of State.

(3) Such an appeal may be made only if—

(a) the prosecution made representations that bail should not be granted and;

(b) the representations were made before it was granted.

(4) In the event of the prosecution wishing to exercise the right of appeal set out in subsection (1) above oral notice of appeal shall be given to the Crown Court at the conclusion of the proceedings in which such bail has been granted and before the release from custody of the person concerned.

(5) Written notice of appeal shall thereafter be served on the Crown Court and the person concerned within two hours of the conclusion of such proceedings.

(6) Upon receipt from the prosecution of oral notice of appeal from its decision to grant bail the Crown Court shall remand in custody the person concerned until the appeal is determined or otherwise disposed of.

(7) Where the prosecution fails within the period of two hours mentioned in subsection (5) above to serve one or both of the notices requires by that subsection the appeal shall be deemed to have been disposed of.

(8) The hearing of an appeal under subsection (1) above against a decision of the Crown Court to grant bail shall be commenced within 48 hours excluding weekends and any public holiday (that is to say Christmas Day, Good Friday or a Bank Holiday) from the date on which oral notice of appeal is given.

(9) At the hearing of any appeal by the prosecution under this section such appeal shall be by way of re-hearing and the judge hearing any such appeal may remand the person concerned in custody or may grant bail subject to such conditions (if any) as s/he thinks fit.’.

The amendment would give the prosecution a right of appeal in a case where bail is granted and someone is not remanded to prison. The process we have set out parallels the current appeal process where people are remanded and the defence wishes to appeal. 

The issue was brought to our attention as a result of the horrific case of Jane Clough. I do not know whether hon. Members are familiar with the case, but some of Jane Clough’s relatives are listening to the debate, and I commend them on the way in which they have persisted with their campaign to ensure that the terrible events that overtook her do not occur again. 

Jane Clough was murdered on 25 July last year by her ex-partner, Jonathan Vass, who was out on bail, despite the large number of charges against him. In fact, he had been charged with nine counts of rape and four counts of common and sexual assault against Jane. The case in which he was to be tried for those counts of rape and assault was due to be heard, but the judge decided, notwithstanding what the Crown Prosecution Service had told him, that Jonathan Vass should not be remanded to prison and should be released on bail. 

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The case raises two questions. One is about the judge’s decision making; the other is about the process. I know it is traditional never to criticise the judiciary, but on this occasion I will. This decision was quite extraordinary, totally outrageous and completely incomprehensible. In any other profession, such a decision would have led to disciplinary action. I would like to ask the Minister what happened, and whether he is attending to the need to address the disciplinary issues within the judiciary when its members take decisions which are so far removed from what the British public would see as sensible and reasonable. 

Anna Soubry:  Can the hon. Lady help us with this: had any evidence been placed before the Crown court judge as to the risk that this particular man posed, and was the judge in full receipt of all the information that would have led him or her to come to what would have been the right decision? 

Helen Goodman:  My understanding is that the Crown Prosecution Service had given the judge the information. That is also what the Crown Prosecution Service itself says. Indeed, that is one of the reasons why this case is so alarming. It relates to the long-standing problem of ensuring that domestic violence is taken seriously in the court system. 

Mr Watts:  My hon. Friend’s experience in the case that she sets out is not unique. I have dealt with the case of a gentleman who was arrested for having a store of arms—including sub-machine-guns—and was bailed, because the police were not aware that the bail hearing was going to be heard. The police did not turn up to the hearing, as they did not actually know about it, and so the judge bailed the gentleman. He went on to commit a further offence, and when the police went to arrest him, he attacked them with a samurai sword. It is quite clear that this is not an isolated case, and I was as frustrated as my hon. Friend was to find out that no action was taken against that judge, because there is no action that can actually be taken against judges in such circumstances. 

Helen Goodman:  I am grateful to my hon. Friend for his intervention, which demonstrates that this unfortunately is not a one-off episode, and that we do need to address both the performance of the members of our judiciary and the rules that apply in these circumstances. My amendment seeks to address the issue of rules, and I hope that the Minister will do something about the judiciary. 

The amendment gives the prosecution the right to appeal to another Crown court judge in a case in which the prosecution believes that remand to prison is warranted. It does not require the submission of further evidence. It does require that such an appeal be lodged speedily. That is important: we are not seeking a massive increase in the number of appeals. Rather, in very serious cases, in which there are high levels of violence and risk to victims, there should be a right of appeal. I hope that the way in which we have set this out achieves that aim. 

If the Minister wants to tell me that my amendment needs some drafting improvements, and that he wants to take it away to address it and come back on Report, that would be very helpful. He knows that this is an

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issue across the House—the hon. Member for Pendle (Andrew Stephenson), for example, has promoted a ten-minute rule Bill on the issue. The Minister knows how serious this is. He knows that there is a problem. I very much hope that he will give us a sympathetic response. 

Mr Buckland:  I want to make some very brief remarks, and to echo the tributes to Mr and Mrs Clough and their family, who have not only attended today, but also gave evidence to an all-party inquiry on the law about stalking, which was expertly chaired by the right hon. Member for Dwyfor Meirionnydd. I am grateful to the Clough family and to others who gave evidence to that inquiry. The intervention by my hon. Friend the Member for Broxtowe, which was addressed by the hon. Member for Bishop Auckland, raised a very important point. The question of the assessment of risk is a vital issue, which needs to be addressed not just by courts but by all agencies which are involved in the prosecution and monitoring of serious and serial offenders. That is the real mischief here, and it needs to be dealt with, in order to address the proper concerns raised by the Clough family and others. 

I strongly support a change in the law to allow an appeal against a decision to grant bail. However, I take issue with how the amendment is drafted, although the intention is entirely right, as to allow an appeal from one Crown court judge to another puts that Crown court judge in an appellate capacity over someone of equal status. That is a difficulty. If the amendment is drafted so that it would be an appeal to a High Court judge, that difficulty is cured. I strongly advocate that approach, as it would make the position clear. The High Court judge would be the appellate judge on a decision on granting bail. There would be no question of one judge of equal seniority second-guessing another. The prosecution would then be put on an equal footing with those defendants who have the power to appeal to High Court judges against the refusal of bail. 

There is an anomaly, which this tragic case has illustrated. It is very sad that we have to be here to learn from a tragedy such as that experienced by the Clough family to look to a proper amendment of the law. I urge the Minister to look carefully and expeditiously at this matter and to introduce an amendment that would allow the prosecution to be on a genuinely equal footing with the defence when it comes to decisions to grant or refuse bail in the Crown court. 

Mr Llwyd:  I, too, am aware of the tragic and harrowing circumstances of this case. I add my voice to those members of the Committee who have spoken. I agree with the hon. Member for South Swindon that the only flaw in the amendment is that it would be hugely embarrassing for one Crown court judge to oversee another Crown court judge’s decision. It is a small amendment, and it would be helpful. 

Given the circumstances and the bravery of the Clough family in coming to give evidence to our stalking inquiry, as well as attending today, which cannot be easy, we owe it to them and to many other people—alas, it is not a unique case—to look seriously at this right of appeal. I urge the Minister, as the hon. Member for Bishop

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Auckland has done, to take the amendment away and look at it and incorporate the addition to which the hon. Member for South Swindon has referred. There will only be a dozen or so cases per annum, perhaps fewer, but there is an anomaly and a flaw, and we need to close that gap. 

The Chair:  Order. Given the level of public interest, I remind the Committee that, our present session adjourns at 1 o’clock. 

Mr Blunt:  Every member of the Committee who has spoken has paid tribute to the parents of Jane Clough, and I want to join in that. The way in which they have conducted themselves in bringing this issue to our attention, based on the awful and tragic experience that they went through, is to be commended. Of course, when one looks at hard cases, they provide the most graphic example of when things have gone wrong in our system. Even so, we are required to look carefully at the case for changing the procedures. I hope that my remarks will bring satisfaction to the Committee as well as to the Cloughs. 

I pay particular tribute to my hon. Friend the Member for Pendle for his presentation of the case to the House through the vehicle of a ten-minute rule Bill. We have discussed the issues subsequently. As hon. Members will know, this point was made at Justice Questions in the House. My right hon. Friend the Minister for Policing and Criminal Justice made it clear that we were giving the matter consideration and were not in a position to say what the outcome would be. I may be able to say a little more in responding to the debate. 

12.45 pm 

I have obviously looked at the case extremely carefully, and I wish to dissociate myself from the criticism of the judiciary made by the hon. Member for Bishop Auckland. It was not appropriate. I studied the transcript carefully and, clearly, everyone concerned with the matter wishes that a different conclusion had been reached. However, there are lessons to be learnt, not simply that a judge flew in the face of reason. The hon. Lady’s criticism was not appropriate. Other flaws in the process need to be dealt with, and they have been taken in hand by the Crown Prosecution Service. 

However, we are still left with an issue of principle: should there be an appeal in respect of the decision of a Crown court judge not to remand someone in custody? One of the issues with which we must deal if we instigate an appeal process is at what level we end it. The hon. Lady conceded when introducing her amendment that it would be inappropriate for the decision of one Crown court judge to be referred to another Crown court judge as part of the appeal process. If the High Court were then to examine an appeal process, which would be the obvious next level, do we create a process whereby there needs to be an appeal from that judge up to the Court of Appeal and then to the Supreme Court? We need to know where the balance properly lies. We must remember that Crown court judges conduct murder trials. They have serious responsibilities in our system, and we are considering appeals against a decision by a judge with significant responsibility. 

I have drawn attention to a matter of principle. The Government have considered it, and we now wish to accept the thrust of the amendment and indeed that of

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the ten-minute rule Bill proposed by my hon. Friend the Member for Pendle, with whom we will now properly engage in details about resources and practicality to draft the necessary amendments in fit shape to put on the statute book at an appropriate time. I can only express my hope that that will take place during our proceedings on the Bill. I cannot give the Committee an undertaking, but we are working towards it. 

Helen Goodman:  Can the Minister commit himself to ensuring that such action happens within the legislative vehicle that we are discussing? The Bill will be discussed on Report in a fortnight. It will be debated in the Lords and the Government can table amendments to it. No doubt, changes will be made and it will return to us. The Minister should be able to commit to making amendments to the Bill, the deadline for which is Easter, in six months. The Government are putting through many other changes. Everyone agrees that such matters are important. I hope that the Minister will use this legislative vehicle to take such action. 

Mr Blunt:  Obviously, I have already asked the necessary questions to inform a precise decision about when to take action, such as in how many cases it would apply, and how many appeals in respect of such decisions we would be likely to see. 

Mr Buckland:  Not many. 

Mr Blunt:  I hope that will be so. Regrettably, I am not sufficiently certain of the precise impact, so I do not know what court processes would be required for a High Court judge to be in place fast enough. If a Crown court judge bails someone and the Crown Prosecution Service subsequently requests for that person to go into custody, how long should he be in custody before a High Court judge is made available? What processes would be required? 

The hon. Member for Bishop Auckland has made suggestions in her amendment that are a perfectly reasonable stab at achieving our aim, but I must ensure that processes are available to underpin measures such as those proposed. I am happy to assure the Committee that we are earnestly engaged in that exercise, but we want a system based on proper data and on proper estimates of the number of times that such a facility would be used by the Crown Prosecution Service. I wish I were in a position to give the Committee such estimates now, but I am not, so I cannot provide absolute certainty. I hope that my concession of the principle of the case satisfies the Committee, my hon. Friend the Member for Pendle and, not least, the parents of Jane Clough. They have made their case, which the Government have accepted in principle. We will try to find the means to put the proposal in place. 

Mr Watts:  The Minister claims that when he looked at the case that we have been discussing, he found out that it was not only the judge who was at fault, because he lacked the information needed to ensure that he made the right decision. In his proposals, will the Minister deal with such weaknesses? 

As I said, in my own experience, someone who had a violent past—who had committed a serious crime and owned a hoard of guns and knives, which was discovered

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when his house was raided—was bailed because the police and other agencies did not provide the judge with the information for him to make the right decisions. In addition, will the Minister consider how judges gather information to ensure that they have all the information required to make the right decision? 

Mr Blunt:  As the hon. Gentleman would expect, the specific agencies involved with the Crown Prosecution Service have looked carefully at what happened in the that case and changed their procedures to address what they believe was the weakness. I understand that those employed directly by the Crown Prosecution Service will now deal with all such applications. 

The hon. Member for Bishop Auckland referred to the case of a complaint against a judge. Disciplining judges is for the judiciary and, given the independence of the judiciary, that matter is absolutely not something on which a Minister would wish to comment. I understand, however, that there is no complaint against that judge, but we will double-check to ensure that I have been correctly advised. If that is not so, I shall write to the hon. Lady. 

I hope I have made it clear that the Government have been convinced by the case made by my hon. Friend the Member for Pendle and by all those who have contributed to the discussions in Committee. We must ensure that we properly administratively discharge my commitment to the principle, which I hope the Committee will welcome. I understand that the hon. Lady wants the proposal to be included in the Bill; so do I. If we include it, however, we must proceed properly and effectively without mashing up the administration and leaving problems, such as people being remanded in custody for too long when a Crown court judge has sought to release them on bail. 

Karl Turner:  I think the Minister said that all such applications will now be made by employed barristers and, I suspect, solicitors of the CPS. If he said that, it worries me, because it suggests that independent members of the Bar are less persuasive than employed members of the CPS. Surely that is not what he meant. 

Mr Blunt:  I hope that the hon. Gentleman, as a member of the Bar, will take it from me that that is not what I meant. However, the CPS has considered the processes in the case. Undoubtedly, such occasions will occur, and however wonderfully talented independent members of the Bar are, if they pick up briefs at short notice without having completely grasped the case, they might not do quite as well as they ought. He shakes his head—of course, that could never conceivably happen. 

However, as far as the tragic Clough case is concerned, I am content that the agencies involved have, very properly, examined what happened carefully and taken the appropriate decisions in light of that tragic experience. The Government are happy to accept those administrative actions internally, but the question of whether an appeal from a Crown court judge, in the way that the hon. Member for Bishop Auckland described, is appropriate remains open. We are happy to agree the principle, but now we want to go away and ensure that we can satisfactorily put it into a process. 

Helen Goodman:  On that particularly dreadful case, I remind the Minister that the judge was advised by the police and the CPS that he should not grant bail due to

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the severity of the crimes. At that stage, the man was being prosecuted for attacking Jane Clough, so the notion that the judge was unaware of the accusations does not stand up. 

However, I am grateful to the Minister for agreeing to the principle, and I am pleased that he accepts that we need to even up the legislation to allow a right of appeal in principle. I accept that he cannot just take my amendment as it is drafted. I am sure that he will do his best to put such a provision into the Bill in some form. During further consideration of the Bill in this House and in another place, Labour Members will question Ministers to ensure that that happens within the next six months. I beg to ask leave to withdraw the amendment. 

Amendment, by leave, withdrawn.  

Question put, That the schedule be the Tenth schedule to the Bill. 

The Committee divided: Ayes 12, Noes 8. 

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Division No. 42 ]  


Blunt, Mr Crispin   

Brake, rh Tom   

Buckland, Mr Robert   

Crockart, Mike   

Djanogly, Mr Jonathan   

Gummer, Ben   

Hinds, Damian   

Lee, Jessica   

Soubry, Anna   

Truss, Elizabeth   

Wallace, Mr Ben   

Wright, Jeremy   


Cunningham, Alex   

Goodman, Helen   

Green, Kate   

Llwyd, rh Mr Elfyn   

Reynolds, Jonathan   

Slaughter, Mr Andy   

Turner, Karl   

Watts, Mr Dave   

Question accordingly agreed to.  

Schedule 10 agreed to.  

1 pm 

The Chair adjourned the Committee without Question put (Standing Order No. 88).  

Adjourned till this day at Four o’clock.  

Prepared 12th October 2011