Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by the Criminal Justice Alliance (LA 71)

About the Criminal Justice Alliance

The Criminal Justice Alliance (CJA) is a coalition of 58 organisations - including campaigning charities, voluntary sector service providers, research institutions, staff associations and trade unions – involved in policy and practice across the criminal justice system. [1] The CJA works to establish a fairer and more effective criminal justice system.

Introduction

1. This briefing highlights the main areas of interest for the Criminal Justice Alliance in the Legal Aid, Sentencing and Punishment of Offenders Bill. We welcome a number of measures contained within the bill, including: extending the criteria for suspended sentence orders, the removal of barriers to the use of the Mental Health Treatment Requirement, and restrictions on the use of remand. All of these measures will allow for a more effective and efficient use of resources at a time when this is particularly pressing. Importantly, this package of proposals recognises that the huge overuse of prison over the last 20 years has had damaging consequences for individuals, families and communities, and that more effective options are available.

2. We have, however, serious concerns about the extended curfew hours for those serving a sentence in the community, with a new maximum of 16 hours per day; the imposition of conditional cautions by the police without referral to the Crown Prosecution Service; and mandatory minimum sentences for new knife offences. There would, in our opinion, be negative consequences as a result of the introduction of all of these measures, and we would strongly advise against them. Our concerns are set out in greater detail below.

PART 1 – LEGAL AID

Clause 12: Advice and assistance for individuals in custody

3. The CJA is extremely concerned by the inclusion, under Clause 12 of the Bill, of a ‘means’ and ‘merit’ test for the provision of initial legal advice and assistance for those arrested and held in police custody, thus removing the current automatic entitlement to free legal advice for all in such circumstances. Such a provision could have profoundly damaging consequences for individuals who are arrested, including miscarriages of justice, and is squarely at odds with the principles of a fair and civilised criminal justice system. Additionally, it is questionable how workable this provision would be in practice, given, for instance, the tight timescales within which the police operate. A means test would cause delays and waste resources.

PART 3 – SENTENCING AND PUNISHMENT OF OFFENDERS

Clauses 53 & 54: Duty to consider a compensation order and to give reasons for and explain the effect of a sentence

1. The CJA welcomes the duty, in Clause 53, for courts to consider making a compensation order. However, there is a significant omission in the Bill with regards to restorative justice. The CJA, along with Restorative Justice Council and Prison Reform Trust, recommend the bill be amended to place a duty on criminal justice agencies to offer restorative justice to all victims of crime pre-sentence, whenever an offender pleads guilty and agrees to participate in the process, and where it is safe and appropriate to do so. [2]

2. Additionally, we welcome the duty, in Clause 54, for courts to give reasons for and explain the effect of a sentence in ordinary language: this is important to aid the understanding of both victims and offenders, and indeed, local communities and the general public. However, we echo the concern raised by JUSTICE, a member of the CJA, in their Briefing for the Public Bill Committee [3] about the order-making power granted to the Lord Chancellor to except cases from this duty, since it is difficult to imagine circumstances in which it would not be appropriate to provide an explanation of the sentence.

3. We are very concerned about the omission of the current duties on courts to explain their consideration of the thresholds for both custodial and community sentences. The seriousness of a custodial punishment merits appropriate consideration and an explanation of why a high level community order has not been imposed. The current duties are an integral part of ensuring that sentences passed are fair and proportionate, and they should be retained.

Clause 56: Breach of a community order

4. The CJA welcomes, albeit cautiously, the introduction of fines as a possible response to breach of a community order. This will allow sentencers greater flexibility in this area, and so enable them to impose sanctions for breach that are appropriate given the specific circumstances of the breach. However, we would emphasise the need for any fine imposed to be means-tested. A report by Revolving Doors, a member of the CJA, has highlighted the problematic nature of financial penalties that are not linked to an individual’s income and ability to pay, observing that "these fines may lead people to resort to crime as a means of getting the money to pay the fine." [4] Taking into account an individual’s financial circumstances when imposing any fine will, therefore, need to be addressed. We would also recommend that, given the low incomes and limited financial means of many offenders, the maximum fine available to sentencers should be reconsidered, and lowered.

Clause 56: Breach of a community order

5. We also welcome, albeit rather cautiously, the introduction of fines as a possible response to breach of a community order. This will allow sentencers greater flexibility in this area, and so enable them to impose sanctions for breach that are appropriate given the specific circumstances of the breach. However, we would emphasise the need for any fine imposed to be means-tested. A report by Revolving Doors, a member of the CJA, has highlighted the problematic nature of financial penalties that are not linked to an individual’s income and ability to pay, observing that "these fines may lead people to resort to crime as a means of getting the money to pay the fine." [5] Taking into account an individual’s financial circumstances when imposing any fine will, therefore, need to be addressed. We would also recommend that, given the low incomes and limited financial means of many offenders, the maximum fine available to sentencers should be reconsidered, and lowered.

Clauses 57 & 58: Suspended sentence orders

6. The CJA is pleased that the Bill extends the criteria for suspended sentence orders, so that custodial sentences of up two years may be suspended. However, there must be clear guidance on when a suspendend sentence should be given to prevent inappropriate or over-use. Evidence shows that suspendend sentences can be used where a community order would have been more appropriate. [6]

7. We welcome the introduction of flexibility around the imposition of community requirements. This clearly recognises that the threat of custody imposed by a suspended sentence order is a significant punishment in itself, and that adding a community requirement may be an unnecessary addition; it also allows for the possibility that community requirements may not be appropriate in every case, and that this will depend on the individual circumstances.

8. As we have set out above in relation to community orders, we welcome, cautiously, the introduction of fines as a possible response to breach of a suspended sentence order, as this will allow sentencers greater flexibility. However, as with fines for breaching a community order, any fine imposed for a breach of a suspended sentence order will need to be means-tested. This will ensure fairness, and will also aid compliance with financial penalties. We would also recommend that the maximum fine available for breach of a suspended sentence order should be lowered.

Clause 59: Programme requirement

9. We support JUSTICE’s opposition to the removal of Sub-clause 202(5) of the Criminal Justice Act 2003 (as set out in Sub-clause 59(3) of this bill), which requires the consent of third parties for programme requirements. As they point out in their second reading briefing, it is important that providers of programmes have consented to the placement of those on community orders with them: without this consent, productive engagement with a programme requirement can hardly be expected.

Clause 60: Curfew requirement

10. The CJA has serious concerns about the extension of the maximum hours of curfew as part of a community order from twelve to sixteen hours per day. We have seen no evidence that this measure would reduce reoffending, and believe it will cause severe disruption to employment opportunities, caring responsibilities and rehabilitation, such as alcohol or drug treatment. It is well established that employment has a significant part to play in reducing reoffending; a seminal report by the Social Exclusion Unit, published in 2002, highlighted that employment reduces the risk of reoffending by between a third and a half. [7] However, as the National Audit Office has reported, curfew orders of up to twelve hours can limit the employment opportunities available to offenders; [8] curfew orders of up to sixteen hours will have an even more constraining effect, and could pose a real barrier to finding work.

11. Extended curfew hours could also have a severe impact on offenders who have caring responsibilities, and may put them in the position of having to breach their order so that they are able to fulfil their responsibilities. Since many of those who are primary carers, such as lone parents, are women, such a measure could have a disproportionate impact upon female offenders. Additionally, many offenders have multiple and interrelating needs, including drug or alcohol dependency or mental health problems; for such individuals, such an order may actually prove an obstacle to changing their behaviour by preventing them, through its onerous requirements, from engaging with a range of appropriate support. For offenders with such needs, who are likely to have chaotic lifestyles, imposing orders with extended curfew hours may be setting them up to fail. We also believe that the extended maximum hours would represent a severe restriction of an individual’s liberty that cannot be appropriate within the context of a community sentence.

12. The CJA is not opposed to extending the maximum length of a curfew requirement from six to twelve months, as this may encourage their use for offenders who would otherwise receive a prison sentence, which is to be welcomed. It will be essential, though, that sentencers are provided with guidance to ensure that such orders are used appropriately, and only for those offences that truly merit them.

Clause 62: Mental health treatment requirement

13. The CJA supports the removal, under Clause 62, of the need for a psychiatrist’s report for the imposition of a Mental Health Treatment Requirement (MHTR). The MHTR has been woefully underused since its introduction through the Criminal Justice Act 2003; although 40% of offenders on community orders are thought to have a diagnosable mental health problem, [9] in 2009, for instance, just 809 MHTRs commenced out of a total of 231,444 requirements issued with community orders. [10] A report by the Centre for Mental Health, a member of the CJA, has identified the requirement for a full psychiatric report as "the biggest barrier to the creation of an MHTR" [11] , and we therefore welcome a more flexible approach.

Clause 73: Bail

14. We very much welcome the restrictions placed on the use of remand through Clause 73 and Schedule 10 of the Bill, so that remand is not available to sentencers where there is no real prospect that an individual will receive a custodial sentence upon conviction. The use of remand where a custodial sentence is not, finally, imposed, can result in unnecessary disruption, including the loss of employment and housing, which can contribute to further offending behaviour.

15. The use of remand can have a particularly damaging effect on women, who are often the primary carers of children, as well as lone parents responsible for the maintenance of the family home. The overuse of remand – in 2009, one-third of women offenders remanded in custody did not go on to receive a custodial sentence [12] – results in the needless separation of children from their mothers, and the loss of accommodation. This provision should serve to limit this damaging use of custodial remand for women.

16. The further provision inserted through Clause 73 and Schedule 10, that remand should remain an option in cases where there is a risk of domestic violence, provides an appropriate and necessary safeguard, and we fully support this.

Clause 103: Employment in prisons

17. We are concerned by the inclusion, through Sub-clause 103(4), of a provision that allows for some of a prisoner’s earnings from employment in prison to be paid to him or her before or after release "on fulfilment by the prisoner of prescribed conditions". We firmly believe that, upon release, prisoners should be able to access money that they have legitimately earned without the imposition of any additional conditions; to impose any conditions upon the receipt of these earnings would be unfair and, indeed, exploitative.

Clause 107: Conditional cautions

18. The CJA does not support the inclusion of Clause 107, which allows for conditional cautions to be issued without referral to the Crown Prosecution Service. Given that conditional cautions can result in onerous conditions, the oversight of the CPS is appropriate, to ensure that the conditions are proportionate and achievable. In addition, giving the police powers to authorise conditional cautions will increase the bureaucratic burden on the police, at a time when they are trying to reduce costs and bureaucracy. This could therefore lead to less use of the conditional caution, or less time and focus given to ensuring that the conditions are appropriate and will be effective.

Clause 113: Offences of threatening with an article with a blade or point or an offensive weapon

19. We are extremely concerned by the introduction of a mandatory minimum sentence of six months for knife offences. A mandatory custodial sentence is a blunt instrument with which to attempt to tackle the problem of knife crime. The evidence for the deterrent value of such sentences is non-existent, [13] and custodial sentences simply cannot address the complex social problems underlying such behaviour, as is clear from the high reoffending rates for those released from custody. Indeed, short custodial sentences are particularly ineffective at tackling offending behaviour – in 2009, 59.4% of those who served a sentence of under 12 months were convicted of a further offence within a year of release. [14]

20. Mandatory minimum sentences do not allow the specific circumstances of an offence to be taken into account by the individual sentencer and, as such, can lead to the disruption of proportionality, fairness and consistency in sentencing. The Sentencing Council, the introduction of which the CJA fully supported, has done a great deal already to inject a greater degree of clarity and consistency into sentencing, and we would recommend against any measures, including mandatory minimum sentences, that work against these efforts.

21. As JUSTICE highlight in their briefing, the necessity of creating the offence of threatening with an article with a blade or point or an offensive weapon is questionable, since other offences already exist to address such behaviour.

Additional Issues

Restrictions to the use of IPPs

22. The CJA very much welcomes the announcement of an urgent review of sentencing by the Prime Minister, and the government’s stated intention to replace the widely discredited indeterminate sentence for public protection. The use of IPPs has resulted in too many prisoners serving disproportionately long sentences, unable to demonstrate to the Parole Board that they are suitable for release, due to the lack of availability of the relevant courses. Despite reform to IPPs in the Criminal Justice and Immigration Act 2008 too many prisoners continue to receive IPP sentences and very few are released.

23. The CJA believes that IPPs are a fundamentally flawed and unworkable sentence and we encourage the Government to abolish the IPP sentence entirely and instead use discretionary life sentences for those cases where an indeterminate sentence is genuinely essential and determinate sentences for other offenders.

Young Adults

24. The Criminal Justice Alliance is disappointed that the Bill does not take the opportunity to set out a coherent strategy for young adults in the criminal justice system. The opportunity should be taken to repeal previous legislation that scrapped Detention in a Youth Offender Institute, and further commitments should be made on the supervision and support for ex-prisoners in this age group.

Women

25. We are very concerned by the lack of provisions in the Bill relating to women offenders. The female prison population has grown from 1,561 in 1993 to over 4,000 today. The authoritative report by Baroness Corston has clearly set out recommendations for change that have received widespread political and justice sector support. In order to ensure this valuable work is continued, there is a need for a Ministerial Champion for Women in the Criminal Justice System. The CJA therefore supports the amendments proposed by the Prison Reform Trust to ensure a cross-government strategy on women and a designated minister with responsibility for its delivery across government departments and local authorities.

Youth Justice

26. The National Appropriate Adult Network has highlighted the anomalous position of 17 year olds held in police custody; under the Police and Criminal Evidence (PACE) they are classed as and treated as adults, meaning that they are not entitled to the support of an appropriate adult. We fully support NAANs recommendation that the Ministry of Justice should work with the Home Office to address this and that 17 year olds in the police station have the same rights as other children.

Rehabilitation of Offenders Act

27. We welcome the government’s commitment, as set out in the Breaking the Cycle green paper, to review the Rehabilitation of Offenders Act, 1974. This Act was previously reviewed in 2002 and the resulting report, Breaking the Circle, recommended urgent reform; those recommendations were never brought into force. We therefore urge the government to bring forward legislation in this parliamentary session to review the Act.

September 2011