Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by the Magistrates Association (LA 76)

Legal Aid, Sentencing and Punishment of Offenders Bill

Part 1, Legal Aid

Qualifying for civil legal aid

Clause 10, page 7, amend sub-paragraph (5) by adding at end 'although legal aid may still be provided in cases where mediation has been considered as an option and has been found to be inappropriate.’

Explanatory note

We support mediation as the first option, but for any private law cases deemed not suitable for mediation, legal aid should be available subject to standard means testing. This will ensure equal representation and should avoid delays.

Advice and assistance for individuals in custody

Clause 12, page 8. Delete sub paragraph (1)

Explanatory note

This seems to exclude those who come into the police station of their own volition before any arrest is made. This may well be the time that they need legal advice.

Part 2, Litigation Funding and Costs

Part 3, Sentencing and Punishment of Offenders

Duty to liaise between sentencers and probation

Page 38. Insert new clauses before clause 53 - duty to liaise between sentencers and probation.

‘There shall be a duty upon each probation trust to liaise with sentencers in the area for which the trust has responsibility.’

‘It shall be the duty of the Lord Chancellor to make arrangements to ensure that magistrates have a knowledge of the probation service and the programmes provided.’

Explanatory note

Liaison between sentencers and probation has suffered as a result of a series of changes to legislation over the past 25 years which have resulted in no one having a clear responsibility for ensuring that it happens. This history is summarised below:

There used to be a number of statutory provisions governing the relationship between magistrates and probation services. In 1994 the Home Office, anticipating a change from PLCs to Probation Boards, wrote:

‘Under the new arrangements the Chief Probation Officer will be responsible to the probation board for devising a strategy for liaison with sentencers both in the Crown Court and the magistrates’ courts. In relation to the magistrates’ courts a new duty is to be placed jointly on chief probation officers and on justices’ clerks to ensure effective liaison. Justices’ clerks will be accountable to the magistrates’ courts committee for the exercise of this duty.’

The legislation referred to was not forthcoming at that time and so, in 1996, the MA with Central Probation Council, the JCS and ACOP worked together to produce a handbook for good practice in liaison. This described the function of liaison as being to:

· foster links between justices and the probation service

· ensure that the courts are supplied with adequate information concerning the establishments and other facilities provided by or otherwise available for use by, the probation service

· provide each probation officer with help and advice in performing his or her duties

In the absence of legislation, it was suggested that overall responsibility for liaison should be shared between the probation committee and the magistrates’ courts committee.

In 2000 there was another attempt to introduce new legislation and this time it was specifically proposed that probation liaison committees should be abolished. Our response to this, again in partnership with ACOP, CPC and the JCS, was that any new legislation should include a shared statutory duty to ensure liaison between CPOs and sentencers, probably via justices’ clerks. This was not achieved and the Criminal Justice and Court Services Act 2003 established Probation Boards with effect from April 2001. Judges and magistrates could be members of the boards - but the liaison role was not entirely clear. Guidance was then developed by the Senior Presiding Judge in 2005. This guidance was updated annually.

The Offender Management Act 2007 then created the National Offender Management Service (NOMS) and announced the replacement of probation boards by probation trusts. It was the view of the SPJ that it would not be appropriate for members of the judiciary to be full members of the trusts and that decision has now been implemented. We are now in a position where there is no statutory responsibility for liaison and no formal connection between sentencers and probation.

We therefore believe that the time has come to introduce a statutory duty for liaison between sentencers and probation - making this a shared responsibility between the probation trust and the judiciary.

Court’s duty to consider compensation order

Clause 53, page 38 add new sub-paragraph (b)

‘Where a court makes a compensation order, it may make provision for immediate payment to be made to the victim from the compensation order fund.’

Explanatory note

A compensation fund is required so that those who are awarded compensation actually receive it when it is awarded - instead of the current system where many such awards are either incompletely paid in irregular small instalments or not at all. This would start to put the victim at the heart of the criminal justice system.

Duty to give reasons for and explain effect of sentence

Clause 54, page 39 add new sub paragraph (3A) ‘victim information order’.

‘The court may order that the prosecution should inform the victim of the court’s decision and the consequences thereof.’

Explanatory note

Once a case has been concluded either in the courts there is no guarantee and certainly no formal process to ensure that a victim, if they so wish, is informed of the outcome.

It is our belief that this is easily remedied by the introduction of an order of the court, a ‘Victim Information Order’, whereby a sentencing bench makes an order that the prosecuting agency gives the victim information concerning

a) The sentence of the court

b) The reasons and the aims of that sentence

c) The commencement of the implementation of that sentence

d) The completion of that sentence

e) Any compensation arising out of that sentence and when it will be paid.

By making such an order, the court can be satisfied that the person or persons affected by the offence is kept at the heart of the criminal justice system.

NB. The VIO can only apply to cases which are dealt with in courts. The government may also wish to similar consider arrangements for when offences are dealt with ‘out of court’.

Curfew requirement

Clause 60, page 45.

Commentary

This section increases the maximum curfew period to 16 hours per day for up to 12 months. We welcome this section as it gives magistrates the opportunity to be flexible and allows imaginative weekend curfews which have high punitive effect but restrict employment very little. Magistrates will have (as they currently have) the power to split times across the day to cover sensitive periods, for example when schools are letting children out at the end of their day. Improved technology, for example a GPS in the tag, is a developing area with increasing possibilities. We are aware that guidance on proportionality will be required, because making maximum use of the new powers to impose a curfew of 16 hours per day, 7 days per week for 12 months would entail a severe restriction of liberty and would have implications for others in the same household

Youth rehabilitation order: fine for breach

Clause 70, page 52, delete entire clause

Explanatory note

Very few young people or their parents could afford a fine of £2500. The current arrangements are adequate and the current maximum (£1000) should be retained.

Restorative justice requirement

Page 52, insert new clause after clause 70: Youth Rehabilitation Order – proposed restorative justice requirement:

‘The court may include in a youth rehabilitation order a restorative justice requirement.’

Explanatory note

The Youth Courts Committee of the Magistrates’ Association believes that there is a definite place for restorative justice, including conferencing, in the right circumstances and to make this a specific requirement of the YRO would emphasise its value.

Magistrates’ courts’ powers to impose imprisonment

Clause 71 (2), page 52, lines 41 and 42, delete (a) (repeal of Section 154 of Criminal Justice Act 2003)

Explanatory note

Our proposal is to delete the clause repealing 12 months’ maximum custodial powers for magistrates. This was provided for in Section 154 of CJA 2003 but has not yet been brought into effect. We propose that the power to do so remain in force. If the government were to be persuaded in the future by the Magistrates’ Association’s cost saving proposals to switch work from the Crown Courts to the magistrates’ courts, it might have difficulty finding legislative time to implement the change so it is an advantage to leave Section 154 in CJA 2003.

Clause 71 (2), page 53, lines 3 and 4, delete (e) (repeal of Section 282 of Criminal Justice Act 2003)

Explanatory note

The proposal is to delete the clause repealing the increase in the maximum sentence of an either way offence on summary conviction to 12 months. This proposal is a necessary addition to the previous one. The whole purpose of increasing magistrates’ powers would be so that they could, for example, sentence cases of opportunistic looting (non domestic burglary), instead of having to commit them to the Crown Court. At present the maximum sentence is 10 years on indictment but only 6 months on summary conviction. Section 282 of the CJA 2003 would allow the Government to increase the maximum sentence on summary conviction for all such offence to 12 months.

Amendment of bail enactments

Clause 73, page 53 and Schedule 10 – Amendments of enactments relating to Bail.

Delete entire clause and schedule.

Explanatory note

By Clause 73 and Schedule 10 of the Bill the 1976 Bail Act is amended so that certain of the exceptions to the presumption that bail should be granted to a defendant will not apply where there is no real prospect that the defendant will be sentenced to a custodial sentence - described as ‘the no real prospect test’.

We believe that the proposed change is unnecessary and overly complex which will do little or nothing to aid the administration of justice and give confidence to the public.

The no real prospect test is at the core of the draft legislation and is introduced by amending the 1976 Act by its inclusion as a new paragraph 5A. Its effect is relevant at all stages in proceedings and applies to imprisonable and non imprisonable offences.

Our specific concerns about the test are that:

· 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.

· The August riots showed the importance of giving magistrates the discretion to withhold bail, when there are reasonable grounds to believe that further offences will be committed. The courts remanded many suspects immediately into custody and ensured that potential troublemakers were off the streets and could not return the next night.

· It is not clear whether it applies to the "offence" or the offender [or both] with antecedents etc. including bail act offences, breach of court orders to be taken into account.

· It may bind the sentencing court in that the defendant if convicted will pray in aid of the bail history.

· Custody will not be available where a defendant breaches bail conditions by obstructing the course of justice or interfering with witnesses - other than those witnesses who fall within the provisions of the Family Law Act [Domestic Violence application]. This is seen as a major and fundamental weakness to the application of justice and the powers of the court. It further enhances the opinion that we and many others hold that the government’s desire to make a ‘process’ distinction between serious and less serious offending is misplaced, wrong and out of step with public opinion. The "no real prospect test" is seen as doing a considerable disservice to victims.

· If applied at the outset of the remand process the test will negate the long held practice that bail need not be given if it has not been practical to obtain sufficient information about the defendant or his circumstances. We see this as a further weakening of the responsibility of the court and effect on public confidence.

· The removal of the ultimate sanction of custody is seen as a major weakening of the powers of the court. There will be a likely increase in appeals to the Crown Court if magistrates take a robust view on the application of the test.

· The underlying principle shows a real lack of understanding of the realities of the circumstances facing judges and magistrates in dealing with a large number of bail issues. The financial savings, real or imaginary, in the application of the test will be hugely offset by costs to the police and other agencies dealing with consequences of breach of bail together with the incalculable loss of public support and confidence.

· The Bail Act offence [S6] provisions appear not to be affected. Breach of bail, failure to surrender is an imprisonable offence. It is unclear how this might be considered by the prosecuting authorities.

· A further exception to the reasonable prospect test is where the defendant falls within the provisions relating to drugs [Para 6B] There is no corresponding recognition in regard to alcohol – we believe this is idiosyncratic.

· If the no reasonable prospect test is satisfied it would appear that electronic monitoring of bail conditions such as curfew will not be available, as the court has to be satisfied that without the electronic monitoring requirements the person would not be granted bail. If a remand in custody is prohibited by the test, so will a tagged curfew. This further limits the power of the court.

· It has been suggested that, as Bail Act offences are imprisonable, magistrates could sentence to custody for the Bail Act offence alone, if there had been failure to surrender or interference during the course of the proceedings. However, if the defendant pleaded not guilty to the Bail Act offence, the court would have to adjourn for a trial so the matter would be irrelevant to the magistrates' deliberations on bail.

Remands to local authority accommodation

Clause 75(4)(a), page 54, add after ‘receive the child’ the words ‘within three hours of the order being made, unless there are geographical or other genuine reasons why this is impractical’,

Explanatory note

We feel that a time factor should be specified, within which the designated authority must receive the child.

Conditions etc on remands to local authority accommodation

Clause 76(3) (b), page 55, delete ’must’ insert ‘need

Explanatory note

Without this amendment the clause implies that the person must not have a name or must be anonymous.

Requirements for electronic monitoring

Clause 77, page 56, delete sub-paragraph (6)

Explanatory note

We strongly disagree with this requirement because it would result in the youth offending team deciding the sentence.

Requirements for electronic monitoring: extradition cases

Clause 78, page 57, delete sub paragraph (6)

Explanatory note

We strongly disagree with this requirement because it would result in the youth offending team deciding the sentence.

First set of conditions for a remand to youth detention accommodation

Clause 81, page 59, delete sub paragraph (3).

Explanatory note

We disagree with this condition. This offence condition would exclude a large number of offences for which a child is at present sometimes remanded to youth detention accommodation. Such offences would include shop theft and almost all drug offences. We feel that the court should retain its right to remand a child charged with such offences in certain circumstances, such as the likelihood of interference with witnesses.

Second set of conditions for a remand to youth detention accommodation

Clause 82, page 60, delete sub paragraph (3).

Explanatory note

This sentencing condition causes us considerable concern. We find it unrealistic to expect a court to decide at this very early stage whether there is a real prospect that the child will be sentenced to a custodial sentence. We appreciate that this may be possible in some cases, such as isolated cases of minor shoplifting, but in many other situations it will be completely impossible. Furthermore to grant bail could erroneously be interpreted as implying that an eventual custodial sentence will not be appropriate. Magistrates need to retain their discretion in deciding whether or not to grant bail.

First set of conditions for a remand to youth detention accommodation: extradition cases

Clause 83, page 62, delete sub paragraph (3).

Explanatory note

See 81(3) above. We disagree with this condition. This offence condition would exclude a large number of offences for which a child is at present sometimes remanded to youth detention accommodation. Such offences would include shop theft and almost all drug offences. We feel that the court should retain its right to remand a child charged with such offences in certain circumstances, such as the likelihood of interference with witnesses.

Second set of conditions for a remand to youth detention accommodation: extradition cases

Clause 84, page 62, delete sub paragraph (3)

Explanatory note

See 82(3) above). This sentencing condition causes us considerable concern. We find it unrealistic to expect a court to decide at this very early stage whether there is a real prospect that the child will be sentenced to a custodial sentence. We appreciate that this may be possible in some cases, such as isolated cases of minor shoplifting, but in many other situations it will be completely impossible. Furthermore to grant bail could erroneously be interpreted as implying that an eventual custodial sentence will not be appropriate. Magistrates need to retain their discretion in deciding whether or not to grant bail.

Remands to youth detention accommodation

Clause 85, page 64, sub-paragraph (9). Insert after ‘The designated authority must receive the child’, the words ‘within three hours of the order being made, unless there are geographical or other genuine reasons why this is impractical.’

Explanatory note

We feel that a time factor should be specified, within which the designated authority must receive the child.

Repeal of uncommenced provisions

Clause 99, page 78, sub-paragraph (7), add new sub-paragraph (c) ‘Omit section 137 and Schedule 16 of the Coroners and Justice Act 2009’ (which extends a driving disqualification when a custodial sentence is also imposed)

 

Explanatory note

These provisions have not been commenced and are not required since courts can take a period of custody into account when imposing a discretionary disqualification. They would be difficult to apply in practice and would require consequential amendment for any change in legislation that would affect a prisoner’s custody release date.

Penalty notices

Clause 106, page 86, see commentary on schedule 14 below.

Conditional cautions; involvement of prosecutors

Clause 107, page 86, insert new sub-paragraph (7) ‘an authorised person should be no less qualified or experienced than a police constable.

Explanatory note

Reference is made under Clause 107 that powers are to be made available to an authorised person. There is nothing contained in the explanatory note as to whom this may apply and no doubt that will be determined in subsequent regulations. Bearing in mind this is already the situation with community resolutions, we have no objection in principle to the removal of the requirement for any conditional caution to only be applied subject to the agreement of the CPS [referred to as "a relevant prosecutor"]. However, we have concerns that "an authorised person" may include inadequately trained or inexperienced officers of whatever denomination.

 

Conditional cautions: removal of certain foreign offenders

Clause 108, page 86

Commentary

There is reference to conditional cautions possibly containing a requirement for foreign national to leave the country and not return for a period of time. However, we are conscious of the problems experienced involving much more serious issues which end up with enforcement problems where a substantial number of people who may be involved with this will be from a member state of the European Union or from a state where human rights are a source of concern: any such requirement may well lead to expensive and time-consuming appeals or judicial reviews which would far exceed the effectiveness of any such exclusion, possibly included as a requirement without proper investigation into subsequent consequences. Substantial care in allowing such conditions to be included needs to be exercised and a relevant prosecutor of senior officer with experience of the European Union provisions and human rights legislation will undoubtedly need to be involved. Again this identifies the need to ensure that any authorised person is suitably qualified and experienced.

 

Power to make consequential and supplementary provision etc

Clause 114 (3)b page 30, line 35 delete ‘6 months’ insert ‘12 months’.

Explanatory note

To tie in with the proposals to clause 71 (above) the government would need the power to amend any legislation to increase the maximum sentence on summary conviction to 12 months at the highest.

Schedules

Schedule 1 – Civil legal services

Schedule 1, clause 10 (1), page 100. Amend by adding at end:

‘where there has been certification , as in the pre-application protocol, namely, that there has been an allegation of domestic violence which has resulted in a police investigation or the issuing of civil proceedings for the protection of any part within the last twelve months .’

Explanatory note

We have concerns regarding the proposal that legal aid in private law cases will be available only in cases involving domestic violence. It is our opinion that this may lead to parties asserting domestic violence as a way of accessing legal aid.

Schedule 10 – Amendments of enactments relating to Bail.

Schedule 10, page 165. Delete.

Explanatory note

See comments on clause 73.

Schedule 14 – Penalty notices for disorderly behaviour

 

Schedule 14, page 177, lines 34 and 35 – delete paragraph 2.

Explanatory note

This paragraph seeks to amend Section 1 of the Criminal Justice and Police Act 2001 so that the Secretary of State can, by order, add to the list of offences capable of being dealt with by an on the spot penalty, without, as at present required, the order being first laid before and approved by a resolution of each house of Parliament. This would not allow the Secretary of State to create new offences but would allow him to switch more offences to out of court disposals without giving notice to parliament. It would mean that interested parties such as the Magistrates’ Association would lose a period of notice in which to make representations about the decision before implementation.

Schedule 14, paragraph 4

Commentary

With regard to the proposal for the police to set up educational courses and to set the fees for offenders to pay, we have concerns that it could be considered that the police who are imposing such educational conditions might be encouraged to do so if they are the recipients of the fees and the two organisations should be completely separate. We therefore feel that any such educational facility should be provided by an organisation [possibly the local education authority or other approved educational facility] more appropriately in a position to provide such courses and without any involvement with the imposition of the requirement in the first place.

 

Consideration should be given to all fees for educational requirements should be standardised so that the requirement in any part of the country will attract the same financial and time requirement wherever the offender may be. [There may be a case for excluding the standardisation of the fee from the metropolitan police force area]

 

As with all out-of-court disposals, proper records need to be kept and any such penalties registered against offenders' records and logged so that they can be accessed nationally through the PNC. There is no reference to this in the proposals.

Schedule 14, paragraph 10

Commentary

This allows a court to set aside a registered fine from a penalty notice. In this proposal, the court is to become an appeal mechanism against such penalty notices. However, there is only reference to setting such notices aside. When such penalties are imposed, they are issued without reference to any financial means and then the amount escalated on registration through non-payment. We recommend that, as with other financial enforcement which comes before the courts, we are given power to remit all or part of any such fine in the interests of justice, not just given power to set it aside. In this way, we can take the means of any offender into account.

 

September 2011

Prepared 7th September 2011