Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by the Bar Council of England & Wales (LA 107)

Briefing on proposed amendments and recommendations from the Bar Council of England & Wales on Part 3 of

Clause 102 – Prison population implications of restating recall provisions in relation to prisoners sentenced under old law


Page   80,     line    8 [Clause 102], at end insert─

`( ) A draft laid pursuant to subsection (5) must be accompanied by a written statement by the Secretary of State that he is satisfied that the making of the proposed order would not adversely affect the management of prisons (as a result of any consequent increase in the prison population or otherwise).

Purpose and effect:

As drafted, Clause 102 would enable the Government to make an order that would extend the provisions regarding recall to custody within the Criminal Justice Act 2003 to all prisoners, and not just those sentenced after the Act became operational.

While we do not object to this in principle, the Bar Council is concerned that the implications of this Clause have not been fully considered. The 2003 Act brought in stricter recall provisions than existed previously, which were not intended to be applied retrospectively. At a time when the Government is seeking to reduce the size of the prison population, and when custodial facilities are under perhaps their greatest strain to date, it seems contradictory to revisit carefully drafted provisions enacted eight years previously.

The Bar Council’s proposed amendment would ensure that, before bringing secondary legislation to apply the 2003 provisions retrospectively, the Government must be satisfied that such an order would not adversely affect the management of the prison estate. This would, of course, need to take account of the potential increase in the prison population and any other public services that may be placed under unmanageable strain.

Clause 103 – non-pecuniary incentives and rewards


Page   80,     line    33 [Clause 103], at end insert─

`( ) early release of prisoners, or the award to prisoners of privileges or benefits in relation to the place, conditions or other circumstances of their detention, instead of the whole or part of any such payment.’

Purpose and effect:

Clause 103 would amend the Prison Act 1952 to enable the Secretary of State to make rules in relation to prisoner earnings. As expressed in the Criminal Bar Association’s response to "Breaking the Cycle": "It is difficult to disagree with the objective of ensuring that prisoners spend their time engaged in challenging and meaningful work." [1]

The appropriate incentivisation of prisoners will, however, be crucial to ensuring that those not otherwise inclined to work are encouraged to do so. In our view, this should not be confined to monetary payment. Our proposed amendment would enable the Secretary of State to offer other tangible rewards to those who work. Some of these could enable further savings to be made from the justice budget, as well as reinforcing hard work, such as increased visitation rights, day or weekend release and, ultimately, early release on licence.

Clause 113 – New offences duplicating existing law

The Bar Council invites Members to oppose this Clause standing part of the Bill.

Purpose and effect:

This Clause would introduce a ‘new’ offence of threatening with an offensive weapon or with an article with a blade or a point, with a minimum sentence of six months’ imprisonment.

This provision is little more than ‘tough on crime’ window dressing on a Bill which is actually intended to reduce the prison population and the associated cost to the State. While it may have impressed certain sections of the tabloid press, the actions it covers have been criminalised by existing provisions; namely sections 3 and 4 of the Public Act 1984.

Even if the Government’s intention is to ‘toughen up’ sentencing on knife crime, we fail to see how a mandatory minimum sentence of six months imprisonment will serve such a purpose. The case law on knife offences indicates that the starting point should be custody. We can only conclude that the imposition of yet another new offence on the statute books, with no real implications in practise, would be a waste of Government time and resource. We thus urge Committee Members to oppose this Clause standing part of the Bill.

New Clause: Independent advice on exercise of Chapter 4 or 5 functions

To move the following Clause -

`Advice on exercise of Chapter 4 and 5 functions

(1) The Secretary of State must make arrangements to receive advice from independent persons about the exercise of the functions conferred on him as a result of any provision of Chapter 4 or 5 of this Part.

(2) Those persons must include individuals with expertise or experience which the Secretary of State considers relevant to the placement of offenders with social and commercial enterprises.’.

Placement: after Clause 105

Purpose and effect:

In its "Breaking the Cycle" Consultation Paper, the Government announced that it would "use the expertise and innovation of the private, voluntary and community

sectors to help develop the working prison", which the Criminal Bar Association wholly endorsed as "imperative to the success of this scheme."

Unfortunately, the Bill contains little to convince us that this Government and, perhaps more importantly, future administrations will consult independent experts about the exercise of the functions conferred by Chapter 4 (release on licence) or Chapter 5 (employment and payment in prisons). If it is truly committed to using the expertise of the private, voluntary and community sector to improve the penal system, the Bar Council urges the Government to enshrine its intentions in statute.

The proposed amendment would insert a new Clause after Clause 105 to ensure that the Secretary of State must, when exercising Part 3, Chapter 4 or 5 functions, make arrangements to receive advice from independent inviduals with expertise or experience relevant to the placement of offenders within social and commercial enterprises.

October 2011


Prepared 11th October 2011