Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by Liberty (LA 87)

Liberty’s Committee Stage Briefing on Parts 2 and 3 of the Legal Aid, Sentencing and Punishment of Offenders Bill in the House of Commons

About Liberty

Liberty (The National Council for Civil Liberties) is one of the UK ’s leading civil liberties and human rights organisations. Liberty works to promote human rights and protect civil liberties through a combination of test case litigation, lobbying, campaigning and research.

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Introduction

This briefing should be read in conjunction with Liberty’s briefing on Part 1 of the Legal Aid Sentencing and Punishment of Offenders Bill. Part 2 of the Bill deals with litigation funding and costs outside of the scope of legal aid and, like Part 1, will severely curtail access to justice, including for those attempting to bring cases on human rights grounds against large multinational companies. Part 3 is a discreet section of the Bill providing for significant reform of the criminal justice system, including out-of-court disposals, sentencing and bail.

Part 2 – Litigation Funding and Costs

Part 2 of the Bill makes provision for maximum limits to be placed on success fees charged by representatives funded under conditional fee agreements (CFA) and provides that a loosing party can never be liable in costs for the success fee of his opponent’s representative. [1] The Bill further significantly restricts the extent to which a loosing party can be held liable in costs for the insurance premiums of a successful party who insured himself against liability arising through legal proceedings; the exception to this rule is for claimants who insure themselves against liability for the cost of expert evidence in clinical negligence cases. [2] The Bill would make damages based agreements (DBA), where lawyers’ fees are contingent on success and are paid from the damages of a successful client, enforceable in all areas of civil litigation. [3]

The Bill addresses the funding of divorce and related proceedings including the dissolution of a civil partnership. [4] Provision is made for interim payments to be made by one party in proceedings to another to cover some or all of the legal costs incurred. Such payments are only to be available to impecunious parties who would otherwise have no way of raising the funds to pay for legal services, including obtaining a loan. Courts will be required to consider the financial position of both parties and the interests at stake in proceedings when deciding whether to order a payment. [5]

The Bill also increases the costs liabilities for defendants where they fail to accept an offer of settlement made by a claimant and subsequently, the award made by a court equals or exceeds the sum offered in settlement. [6] Costs liability for failing to accept a reasonable offer is also to be extended to non-monetary cases, with the value of non-monetary benefits to be taken into consideration. The Bill imposes restrictions on cost orders made to defendants who are acquitted in criminal proceedings limiting, in particular, the extent to which lawyers costs can be accounted for in costs awarded to a defendant.

Briefing on Part 2

Whilst Liberty welcomes modest proposals set out in clauses 46-49 to introduce interim cost payments in matrimonial disputes, and plans to increase the costs liability for defendants who fail to accept reasonable offers of settlement, Liberty has serious concerns about other measures proposed in Part 2 which, when combined with sweeping reforms to the legal aid system, form part of a brutal assault on access to justice. When legal aid was curtailed dramatically by the last Government, including the exclusion of all personal injury claims from scope, the move was justified by measures enacted in the Access to Justice Act 1999 which opened up legal redress to many through the introduction of a conditional fee agreement (CFA) regime. Whilst CFAs are of no assistance to people seeking advice in many of the areas of law excluded from the scope of legal aid under proposals in Part 1 of the Bill, (such as social welfare, immigration and debt, where there is little prospect of damages), these agreements are hugely valuable in other areas of the law.

In the areas where CFAs prove an indispensable resource, Part 2 of the Bill will seriously limit their practical availability. The CFA scheme, as currently implemented, requires a loosing insurer to pay the success fee of a claimant’s representative and to cover the after the event insurance premiums which protect a claimant against ruinous costs liability. As solicitors are able to offset the risk taken in individual cases, by charging an uplift on their fees in case of success, they are able to take on difficult and time-consuming briefs. If the Bill is enacted in its current form, clause 41 will prevent representatives from recovering a success fee from a party found to be at fault. To the extent that success fees are recoverable, they will only be recoverable from the client. The Bill also provides that success fees must be capped at a percentage of damages; this percentage can be set by the Lord Chancellor in secondary legislation. [7] As with other areas of the Bill, reforms are blunt and broad, with no exception made for cases involving, for example, serious human rights violations.

Clauses 43 and 44 of the Bill will prevent individuals from recovering, from a loosing party, insurance premiums paid by those who have sought to shield themselves from costs of litigation. This is another in a barrage of measures which will prove a disincentive to ordinary people seeking to vindicate their rights, making justice the preserve of the super-rich. Whilst some concession is made to individuals seeking to ensure themselves against the costs involved in seeking expert evidence in clinical negligence cases, this provision is strictly limited and specifically prevents successful claimants from recovering insurance premiums relating to costs outside of disbursements for expert reports.

Firms such as Leigh Day, who have taken numerous claims against massive conglomerates on behalf of ordinary people suffering the health consequences of corporate misconduct have said that they will no longer be able to continue with work of this sort under new proposals for civil litigation funding. Amongst their clients are the 30,000 Ivorians injured by the dumping of toxic waste by Trafigura and South African minors who suffered asbestos poisoning whilst mining for Anglo-American. Pursuing litigation like this is hugely expensive and can take whole teams of lawyers years to complete. Leigh Day have confirmed that the changes proposed in the Bill threaten to make litigation of this kind impossible:

In particular, the abolition of ‘success fees’ payable by defendants, will mean that claimant firms like Leigh Day will simply not be able to run the risk of taking on these type of cases in the future….. [8]

To the extent that CFAs remain a viable prospect, representatives will be disinclined to take on anything other than the most winnable cases, and important test-case litigation, which is inherently uncertain, will represent a prohibitive risk. Liberty strongly urges the Government to rethink these proposals which would effectively grant impunity against corporate misconduct, including denying redress to victims of personal injury and invasions of privacy.

Liberty is further concerned by discreet measures set out at clause 52 of the Bill which could effectively prevent an individual prosecuted for a criminal offence from recovering costs attributable to his defence following vindication at a criminal trial. Under the current law, to be recoverable costs must already be reasonably and properly incurred and this additional requirement creates a real risk that individuals who are found innocent of criminality will, in addition to having endured the huge stress, upheaval and potential stigmatisation of criminal prosecution, be left out of pocket for the cost of their legal defence. As such Liberty supports amendment 228 which would remove clause 52 from the Bill. [9]

Part 3 – Sentencing and Punishment of Offenders

Chapter 1 of Part 3 of the Bill deals with sentencing of offenders and would make it mandatory for the court to consider granting a compensation order to victims wherever it has the power to do so; where it does not take this course the Court is required to provide an explanation. [10] Some of the specific duties on judges to explain sentencing decisions are to be removed, however it is envisaged that all of these matters will fall to be addressed under a general duty to ‘state in open court, in ordinary language and in general terms, the court’s reasons for deciding on the sentence.’ [11]

Clauses 55 - 56 provide for community orders to have a clearly specified end-date. Courts will further have more options when considering how to respond to a breach of a community order, including making no order or imposing a fine. [12] The suspended sentence regime will also be reformed to allow sentences of between 14 days and 2 years to be suspended, by contrast with current provisions which limit suspension to sentences of 12 months or less. [13] Courts will also be given a discretion as to whether or not to attach a community requirement to a suspended sentence and will be empowered to impose a higher fine for breach of a suspended sentence order. [14]

Courts will be given wider powers to include programme requirements in criminal sentences, for example requirements aimed at helping offenders to overcome drug and alcohol dependency problems. [15] Under the Bill, programmes will no longer be limited to a series of accredited options. Judges will further be able to impose programme requirements, without the approval of a programme officer, even where they place obligations on another individual who may not have provided express consent. [16]

The Bill proposes to extend the maximum period for curfews operating as part of a community sentence to 16 hours per day for a maximum of 12 months. The current limit caps curfew at 12 hours per day for a 6 month duration. [17] The Bill would further make explicit provision for conditions banning foreign travel to be attached to a community order and would allow judges to impose mental health treatment requirements even in the absence of evidence from a mental health practitioner. [18] Related provision would remove minimum time periods which currently prevent a judge from making a drug rehabilitation order or alcohol treatment requirements for periods under 6 months. [19]

If implemented the Bill would make welcome changes to the youth sentencing regime, giving judges additional powers to discharge young offenders conditionally, in addition to powers to give an absolute discharge or make a referral order. [20] Referral orders, which refer offenders to a youth offender panel who will meet with the young person and supervise rehabilitative activities, are to be more widely available to judges. Under the Bill referral orders will be available even where there is a previous guilty plea or a referral order has already been made in an individual case. [21]

Courts are to have wider powers to sanction offenders for breach of Detention and Training Orders, including by imposing an additional period of supervision. [22] Where a curfew is attached to a Youth Rehabilitation Order (YRO), the maximum limit will be extended in line with adult curfew requirements to a maximum of 16 hours per day for 12 months. [23] Clause 68 allows judges to make a mental health treatment requirement without the need to obtain evidence from a medical practitioner. Clause 69 provides powers to extend the maximum duration of a youth referral order by 6 months and to impose an increased fine for breach of an order.

Clause 71 repeals uncommenced provisions which would have extended Magistrates’ sentencing powers from 6 to 12 months.

Chapter 2 of the Bill amends the bail regime to provide for exceptions to the presumption in favour of bail to be disapplied where there is ‘no real prospect of a custodial sentence’. [24] However, a new exception to the presumption, which will not be subject to the ‘no real prospect’ test, is proposed to deal with cases where, if released on bail, an individual is likely to engage in conduct amounting to domestic violence. [25]

Where children are not granted bail, the Bill provides that they must be remanded to local authority accommodation except where a series of conditions apply including where the alleged offence is sexual or violent in nature and only remand to a youth detention accommodation would be sufficient to protect the public from death or serious injury, or to prevent the young person from committing an imprisonable offence. [26] Under Clauses 81-85 of the Bill, remand to youth detention accommodation would only be available in cases where it is rendered imperative by a combination of factors going to, amongst other things, the serious of the offence, the risk of absconding and any risk to public.

Chapter 4 of the Bill deals with release on license, including providing for unconditional release for individuals sentenced to 12 months or less and provides for prisoners serving over 4 years to be excluded from the scheme which provides for early release on home detention curfew. [27] The Bill corrects an anomaly in the current remand system by bringing 17 year olds within provisions designed to deal with remand for children. [28] Clauses 95-96 of the Bill would allow for an erroneous revocation of a license to be cancelled and would lift restrictions on automatic release after an individual has been recalled to prison for breach of a license. The Bill extends provision for the supervision of young adults released from a young offenders’ institutes and provides for further supervision to be accompanied by electronic monitoring and drug testing. [29]

Pending the Government’s extremely welcome review of the current system of indeterminate sentences, the Bill introduces measures providing for foreign prisoners on IPP sentences to be deported after serving their tariff.

Chapter 5 of the Bill deals with prisoners and makes provision for the Secretary of State to introduce new prison rules dealing with employment and remuneration. The Secretary of State will have the power to make payments with the aim of rehabilitating offenders, preventing offending and limiting the impact of crime. [30]

Chapter 6 of the Bill is concerned with out of court disposals and would allow for chief officers of police to set up new schemes allowing officers to combine penalty notices for disorderly behaviour (PNBD) with education courses, paid for by the individual, which are designed to reduce the risk of reoffending. The Bill also removes limitations which currently restrict the issuing of penalty notices to authorised uniformed officers. [31] This section of the Bill also makes provision for the Secretary of State to issue guidance regarding education courses and regulations dealing with the revocation of PNBDs. [32]

Clauses 107 and 108 deal with cautions in adult cases, removing the requirement for prosecutorial authorisation before a conditional caution can be issued. [33] Where an offender is a foreign national and does not have leave to enter or remain in the UK, new conditions can be attached to a caution designed to facilitate departure from the UK or ensure that an individual does not return within a specified period of time.

Clauses 109-112 abolish the current system of out of court disposals for young people known as the ‘final warning scheme’, replacing it with a new youth caution. The circumstances in which the new cautions can be given broadly mirror provisions of the final warning scheme, but the new youth cautions will be available even if a young person has a previous conviction or has already been given a caution. Under the new scheme there will be no requirement that officers consult with the Crown Prosecution Service before a youth caution or a youth conditional caution is administered to determine whether there is enough evidence to charge. Other requirements incorporated into the final warning scheme still apply, for example the requirement that an adult must be in attendance. Where a young person is given a caution she must be referred to a youth offending team (YOT) as soon as practicable, and a rehabilitation scheme must be put in place where appropriate.

Chapter 7 contains widely publicised proposals creating a specific offence of threatening another with a weapon in public, attracting a minimum custodial sentence of 6 months where the offender is aged over 18 unless there are particular circumstances relating to the offender which make it unjust to do impose a sentence of this nature. [34]

Briefing on Part 3

Liberty shares the Government’s expressed aim of reducing re-offending and facilitating rehabilitation, particularly by ensuring that sentencing measures aid rather than hinder reintegration into society. Proposals in the Bill dealing with sentencing acknowledge that prison is not always the solution, particularly in relation to petty offending, and provide judges with the flexibility to adapt sentences to the requirements of an individual case.

Liberty supports proposals set out at Chapter 1 of the Bill which will give Courts the flexibility to tailor sentences to the particular needs of the individual. We welcome, in particular, plans which would allow drug rehabilitation and alcohol treatment requirements to be used in a wider range of circumstances. Whilst offending behaviour must be addressed, Liberty believes that the Government’s commitment to tackling the root causes of offending, such as drug and alcohol addiction, represents a progressive approach, likely to yield more favourable results in terms of reducing overall criminality than a system which relies heavily and inflexibly on custodial sentences. Liberty welcomes plans which would see wider use made of suspended sentences, including powers to suspend a sentence of up to two years. We also welcome the Government’s revocation of uncommenced measures which would have seen the sentencing powers of Magistrates increased from 6 to 12 months.

Liberty strongly supports measures which would remove the option of remand for many defendants unlikely to receive custodial sentences if convicted. The deprivation of liberty involved in imprisonment can lead to family breakdown, loss of employment and wider social stigmatisation. As a result, Liberty believes that prison should be reserved for those convicted of or awaiting trial for offences of a serious nature which are likely to justify the imposition of custody after proper consideration of the nature of the crime and any mitigating or aggravating factors. On this basis we welcome the Government’s plans to introduce a new test which requires judges to recognise the presumption in favour of bail, even where certain exceptions apply, in cases where there is ‘no real prospect that the person will be sentenced to a custodial sentence in the proceedings’. [35]

We further welcome plans to create a single remand regime for all minors, recognising the unique position of children in the criminal justice system and addressing the injustice created by remand legislation which treats 17 year olds as adults. Liberty supports plans to ensure that, where remand is appropriate in the case of minors, it is confined, wherever feasible, to remand in local authority custody as opposed to incarceration in youth detention accommodation.

Notwithstanding these progressive measures we have ongoing concerns about a number of the proposals set out in Part 3, in particular the removal of prosecutorial oversight of out-of-court disposals, extended curfews and some measures impacting upon foreign nationals.

Suggested Amendments to Part 3

Amendment 1 - amend clause 54

Page 39, line 7, after "in open court" insert "and in writing".

Page 39, line 9, after "offender" insert "both orally and in writing".

Page 39, line 17, insert –

"(3A) The duty to provide written reasons under subsection (2) and (3) is subject to any reporting restrictions which may apply in an individual case".

Page 39, line 17, omit subclause (4) and substitute: "(4) The duty to provide a written explanation of sentence under subsections (2) and (3) is subject to any reporting restrictions which apply to the case. (4A) The duty to provide a written explanation of sentence under subsections (2) and (3) includes a duty to provide copies of the document to: (a) the offender and his representative, and (b) the victim and his representative."

Page 39, line 22, omit "(8)" and substitute "(8A)".

Page 39, line 32, insert - "(c) in any case mention any aggravating or mitigating factors which the court has regarded as being relevant to the case."

Page 39, line 44, insert - "(8A) Where the offender is aged over 18 and the court imposes a sentence which may only be imposed in the offenders case if the Court is of the opinion mentioned in: (a) Section 148(1) of this Act (community sentence), or (b) Section 152(2) of this Act (discretionary custodial sentence), the court must state why it is of that opinion."

Effect

This amendment would reinstate a number of specific duties to explain elements of a sentence, namely the duty to give an account of relevant aggravating or mitigating factors and an extension of the duty to explain why an offence was considered sufficiently serious to impose a community or custodial sentence in the case of adult offenders. The Lord Chancellor would no longer have the power to remove the specific duty to explain elements of a sentence by means of secondary legislation. In addition to the requirement to explain sentences orally, courts would be obliged to explain the reasons given for a decision specifically and in ordinary language, in written form (subject to relevant reporting conditions).

Briefing

Fair and consistent sentencing is an important part of due process in the criminal justice system. Liberty supports the Government’s commitment to ensuring that sentences are expressed in simple and accessible language. However a desire to ensure simplicity should not eclipse the need to fully explain every relevant consideration and each aspect of the sentence. The amendment proposed above therefore reinserts the duty, in the case of an adult as well as a child, to explain why an offence was considered sufficiently serious to impose a discretionary custodial sentence or a community sentence. This reflects the significance of these thresholds and particularly the threshold for custody in sentencing decisions and reaffirms the importance of reasoned and consistent decision making. Similarly the amendment to subclause (6) makes specific provision for an explanation of aggravating and mitigating factors, which are vital in explaining why cases that may seem similar at first glance attract different sentences.

For many facing sentence in the criminal courts, however straightforward the explanation given by a judge, the full reasoning and justification for a sentence may not be grasped. This may be a particularly serious problem for individuals with learning difficulties, mental health problems or those for whom English is a second language. A statutory requirement to provide a written copy of a sentence in writing, to the subject of the sentence and his representative will facilitate better understanding of decisions, ensuring that convicted individuals can explore areas of confusion or contention with their legal representative. Similarly a requirement to provide a victim with a written explanation will facilitate better understanding and may be of particular value in cases where mitigating factors act to reduce the severity of a sentence.

Amendment 2 - amend clause 60

Page 45, line 1, omit clause 60

Effect

This amendment would reinstate the current statutory framework governing curfew requirements, meaning that a curfew may not last for more than 12 hours a day and may not apply for a period of more than six months.

Briefing

Whilst Liberty is broadly supportive of the package of sentencing reforms which would be introduced by the Bill, we have concerns about measures which provide for the wider use of curfews and more onerous curfew requirements for both adults and children. In its Green Paper published in March this year, the Government envisaged the implementation of these new tougher measures in the place of custodial sentences. Whilst the deprivations of liberty involved in the imposition of a curfew are far less than would be the case on receipt of a custodial sentence, Liberty is concerned that, once legislation is passed introducing new and extended powers to tag and curfew, there will be no way of ensuring that they are used as intended. In the past tougher community penalties have not always been used in practice as an alternative to custody, but rather as additional, harsh punishments which are available to courts in circumstances where a custodial sentence would not be appropriate. Curfews of the level and duration proposed will make it difficult for individuals to hold down regular work or perform other useful functions. This level of punishment in the community, amounting to virtual house arrest, is likely to have a stigmatising effect preventing successful reintegration. Such extensive curfew requirements further severely disrupt normal family life, effecting not simply the individual subject, but also family members and others residing with him including minor siblings or children who are in no way implicated in criminality.

Amendment 3 - amend clause 61

Page 45, line 16 insert - "(2A) In section 177 of that Act, after subsection (6) insert - (7) A court may only impose a foreign travel prohibition requirement where: (a) given the pattern of offending behaviour, it is necessary to prevent further offences being committed; or (b) it is necessary to ensure compliance with other aspects of a sentence or any existing sentence to which an offender remains subject."

Effect

This amendment would make imposing foreign travel orders contingent upon one of two specific requirements.

Briefing

Liberty has no objection to the use of foreign travel requirements as part of community sentences where they are, for example, used to ensure that the requirements of a community sentence are complied with, or an individual does not engage in further criminality abroad. Liberty believes that restrictions on an individual’s ability to travel abroad should be firmly linked to the offending behaviour or compliance with other elements of a sentence.

Amendment 4 – omit clause 62

Page 46, line 1, leave out clause 62

Effect

This amendment would reinstate the requirement that mental health treatment requirements be contingent upon medical evidence from a suitably qualified professional.

Briefing

Liberty understands the objective underpinning clause 62. From a practical perspective, mental health treatment requirements are an underused resource thanks, in no small part, to the difficulty of obtaining medical evidence from over-subscribed professionals within tight deadlines. We are concerned, however, that without medical opinion, these orders may be imposed inappropriately and place unhelpful burdens on the individual which fail to contribute towards effective rehabilitation. Liberty urges the Government to explore other ways of facilitating the appropriate use of orders, such as increasing the number of suitable professionals who may provide evidence or providing necessary additional resource.

Amendment 5 – omit clause 67

Page 49, line 44, omit clause 67.

Effect

Removes extended curfew powers for juveniles.

Briefing

The briefing provided in relation to amendment 2 (clause 60) above, app lies with still greater force in relation to young people, for whom long curfews ma y have a particularly profound a ffect . 16 hour curfews lasting for up to a year are likely to ostracise a young person in his or her community at an important time in their personal and social development and may impede effective rehabilitation, for example , by preventing children from taking part in productive activities such as after school sports or music classes.

Amendment 7 – omit clause 68

Page 50, line 5, omit clause 68.

Effect

This amendment would reinstate the requirement for expert evidence prior to including a youth mental health treatment requirement in a sentence. For briefing see amendment 4 (clause 62) above.

Amendment 8 – amends clause 69

Page 51, line 1, omit "subject to that" and after "may" insert "not".

Page 51, line 22, omit "subject to that" and after "may" insert "not".

Page 51, line 43, omit "subject to that" and after "may" insert "not"

Effect

This amendment would allow for the duration of a youth rehabilitation order to be extended by up to six months in response to a breach, but provides that an order may not be extended beyond the 3 year limit for which provision is currently made.

Briefing

Liberty agrees that there will be cases in whic h it is far more effective and proportionate to extend the period of a youth rehabilitation order in response to a minor or technical breach as opposed to, for example, imposing custody or a financial penalty. However placing children under extremely protracted requirements and rendering them vulnerable to further penalty for breach can have a counter-productive effects, including escalation into further sanction for minor failures , frustrating the rehabilitation process. Liberty therefore opposes plans which would enable courts to extend youth rehabilitation orders beyond their current three year limit.

Amendment 9 – omit clause 70

Page 52, line 22, omit clause 70

Effect

This amendment would remove powers to significantly increase the maximum fine to which a child can be sentenced for breach of a requirement of a youth rehabilitation order.

Briefing

Liberty accepts that fines are a useful part of the adult sentencing regime and further accepts that, in order to be a useful deterrent, sums must be sufficiently large as a proportion of an offender ’ s assets or income. We are concerned , however, at plans to increase fines to £2,500 for children breaching youth rehabilitation orders . T his is a substantial increase from the current limits of £250 for offenders under 14 and £1000 for older children . The vast majority of minors and particularly those under 16 have no independent financial resources. Fines are therefore effectively a punishment for parents. Liberty believes that increasing the financial hardship facing parents is unlikely to improve o utcomes for struggling families and may, in any event , have little direct e ffect on the child .

Amendment 10 – amend clause 100

Page 78, line 9, omit clause 100 and substitute - "100 Repeal of provision for indefinite imprisonment for public protection and indefinite detention for public protection (1) The Criminal Justice Act 2003 is amended as follows. (2) Omit section 225(3), (3A), (3B), (3C) and (4).

Effect

This suggested amendment would substitute existing clause 100 with a new clause the effect of which would be to repeal provisions of the Criminal Justice Act 2003 which established the indefinite detention regime (known as indefinite detention for those under 18). Our suggested clause 100 negates the need for a provision allowing for foreign nationals to be deported once they have served their tariff; clause 100 of the Bill as drafted is therefore removed. T he Home Secretary would still be free to bring deportation proceedings against non-nationals who have served their prison sentence in accordance with existing immigration legislation. [36]

Briefing

Liberty welcomes the Prime Minister’s clearly stated commitment to review the discredited system of indeterminate sentences introduced by the last Government. Referring to indeterminate sentences as unclear, uncertain and inconsistent, David Cameron vowed to "review the existing system urgently with a view to replacing it with an alternative that is clear, tough and better understood by the public." [1]

The Criminal Justice Act 2003 created the power to impose indefinite periods of imprisonment for public protection (‘IPP’). These sentences do more than punish an offender for a crime he or she has committed and are based on an assessment of the threat that individual is likely to pose in the future. The court may impose a sentence of imprisonment for public protection where the offender is convicted of certain specified serious offences or where a minimum tariff of two years would otherwise have been imposed. [1] These sentences then, require courts to predict future risk rather than assess past offending and create an indefinite (effectively a life) sentence for offences which might otherwise have warranted a tariff of two years in prison. Liberty fully supports the duty on Government to protect the public from harm. Indeed the Human Rights Act 1998 (HRA) places specific obligations on authorities such as the police and parole boards to protect individuals from violence at the hands of criminals in a wide range of circumstances. This notwithstanding, indeterminate sentences have been proven to be a dishonest sentencing tool which have undermined public understanding of the sentencing regime and unecessarily inflated prison numbers. IPPs undermine the important common law principle that a person should be sentenced only in respect of matters proven before the court. Further, examples abound of how this indefinite legal limbo works to undermine rehabilitation leaving prisoners and their families unable to prepare, mentally or in practical terms, for release. Liberty has long-standing concerns about the use of preventative incarceration, particularly in circumstances where the individual may find it difficult to prove that he no longer poses a significant risk. Through Liberty’s experience of operating a public advice and information line, it has become apparent that in addition to the principled objections, the IPP scheme has been blighted by practical injustices and inefficiencies.

Inadequacy of sentence planning and information

Many prisoners serving IPP sentences are unclear as to what precisely is required of them in order to be considered for release. Their sentence plans may be insufficiently specific to enable them to actively progress towards this, and even the institution at which their sentences are to be served may be uncertain as to the appropriate courses prisoners should take to be considered for release. Furthermore, due to the discretionary nature of the sentences, these requirements are subject to change by those considering applications for release, potentially leaving prisoners in the unacceptable predicament of completing one set of conditions only to have more imposed upon them.

Non-availability of prescribed courses

Liberty has been made aware of numerous cases in which offenders have actively sought, but have been unable to commence, the rehabilitative courses that require completion before they can be released. This may be because (1) there are lengthy waiting lists for these courses, on which non-IPP prisoners who have a fixed release date are prioritised, (2) the offender is placed in an institution where the requisite courses are simply not available or, (3) the offender’s level of English language is inadequate to enable successful completion of the courses. It is clear that in these circumstances, the successful rehabilitation of offenders is seriously undermined.

Irregularity or absence of parole hearings

It is common for the sentence served by an offender to have far exceeded the minimum tariff imposed without them having been considered for release. In some cases Liberty has been contacted about, even where a parole hearing has been scheduled, this is subsequently adjourned, for instance due to the non-attendance of essential personnel or the absence of a crucial piece of information or evidence. Liberty has received complaints of parole hearings being re-scheduled on numerous consecutive occasions, often with lengthy periods until the next planned hearing.

Amendment 12 – amend Schedule 14

Schedule 14, page 178, line 1, omit subsections (4) and (5)

Schedule 14, page 178, line 9, omit "-" after "by" and omit lines 10 – 14 and insert "the national probation service".

Schedule 14, page 178, line 22, omit "-" after "by" and lines 23 – 25 and insert "completing an approved educational course."

Schedule 14, page 178, line 31, omit line 31.

Schedule 14, page 178, line 36, omit lines 36 – 38 and insert - "The national probation service may establish a national education course scheme."

Schedule 14, page 178, line 39, omit "-" after arrangements.

Schedule 14, page 178, line 40, omit "(a)".

Schedule 14, page 178, line 43, omit subparagraph (b).

Schedule 14, page 179, line 8, omit "chief officer of police" and insert "national probation service".

Schedule 14, page 179, line 11, omit subparagraph (a).

Schedule 14, page 179, line 20, omit lines 20-21 and insert - "(ii) the national probation service, and".

Schedule 14, page 179, line 31, omit lines 31 – 44.

Schedule 14, page 180, line 26, omit line 26.

Schedule 14, page 180, line 31, omit "(iii)" and insert "(ii)".

Schedule 14, page 180, line 31, omit text in brackets from "including" to "officer".

Schedule 14, page 180, line 36, omit "(iii)".

Schedule 14, page 180, line 40, omit text in brackets from "including" to "officer".

Schedule 14, page 180, line 45, omit text in brackets from "including" to "8".

Schedule 14, page 182, line 32, omit paragraph 14.

Effect

Schedule 14 of the Bill as drafted would introduce an alternative to pure financial penalties for those given penalty notices for disorderly behaviour such as drunk and disorderly behaviour, destroying or damaging property or engaging in behaviour likely to cause harassment, alarm or distress. Under the scheme proposed in the Bill, those accused of disorderly behaviour could be given the option of undertaking an education course.

The suggested set of amendments, whilst retaining the proposed education course scheme , would re-introduce the requirement that all penalty notices , whatever the penalty, are handed out by specially authorised officers in uniform. If amended in the terms set out above, Schedule 14 would give the national probation services the power to establish a nation-wide scheme of courses – this represents a departure from current proposals whereby a chief officer of police would be empowered to set up a local scheme within his or her police authority.

The suggested amendments would further remove the requirement that the alleged offender would be required to pay the cost of an education course.

Briefing

Liberty remains seriously concerned about the use out-of-court disposals, which operate without ordinary due process safeguards, and produce worryingly inconsistent results. Our concerns are set out in greater detail in our briefing on amendment 13 below which relates to clause 107 of the Bill. Against the backdrop of these concerns, the proposed amendments to Schedule 14, would reinsert a number of safeguards into the system of penalty notices for disorderly behaviour, including requirements that notices are only handed out by uniformed and specially authorised officers. The proposed amendments removing responsibility for setting up education schemes from chief constables and giving the probation service the power to set up a nation-wide scheme of courses, are probing amendments designed to encourage debate on the most appropriate agency to run an education course scheme. Whilst Liberty has concerns about contact between the probation service and individuals who have not been convicted of any criminal offence, the proposed alternative scheme questions the appropriateness of chief police officers running locally based schemes. An obvious concern with such an arrangement is the prospect of inconsistency, both in terms of the availability and content of courses in different areas of the country.

The proposed amendments remove the requirement that individuals be required to reimburse the cost of education courses. Whilst some of those arrested will be in a position to cover this cost, for some the expense may be prohibitive – this could lead to a highly unsatisfactory two tier system whereby those who can afford to pay have the option of undertaking activity designed to rehabilitate them, whilst this option is unavailable to those who may have similar rehabilitative needs, but lack the necessary resources.

Amendment 13 – omit clause 107

Page 86, line 8, omit clause 107

Effect

T his suggested amendment would insert the requirement that prosecutorial authority must be obtained before police officers issue a caution or a conditional caution.

Briefing

Of all the proposals set out in Part 3 of the Bill, those sections providing for wider use of out-of-court disposal without the protection of CPS authorisation give greatest cause for concern. Prosecutorial oversight provides at least some measure of protection against inconsistency or bias in decision making and some level of process and oversight. An individual who receives a conditional caution, for example, in addition to having to comply with a specified condition, will have a criminal record which may well affect his or her employment prospects. The consequences for the individual of an out-of-court disposal should not be underestimated. Liberty is concerned that out-of-court disposals are part of a wider trend of legal short cuts; punitive measures dressed-up as "preventative" to escape the fair trial safeguards that civilised societies normally abide by before punishing their citizens. [1]

Reform of the out-of-court disposal regime

Liberty believes that the Government needs to urgently take stock of current use of out-of-court disposals. Since 2003, the total number of out-of-court disposals has increased significantly, by 135%. [2] In 2003, 241 000 alleged offences were dealt with out of court and in 2008, the figure was 567 000. [3] This means that the proportion of alleged offences dealt with outside court went from 23% in 2003 to just under 40% in 2008. [4] This represents a huge sea-change in the way that offences are dealt with. Instead of being brought before an open court for evidence to be presented and judgment reached, well over a third of offences are now dealt with entirely by the police who act as investigator, prosecutor, and judge. In the wake of the recent serious public disorder, the dangers inherent in this system have never been so apparent. The importance of open justice and due process are thrown into sharp focus by the swell of public concern over the recent riots.

As each new disposal power has been added to the statute book, Liberty has consistently raised concerns about the way in which summary justice of this type can undermine justice standards, make individuals subject to arbitrary and inconsistent decision-making and damage public perceptions of the police and the justice system as a whole. We have warned, in particular, that the powers are likely to result in an inconsistent approach by different police officers and different forces, especially where complicated judgments are necessary in determining whether a fixed penalty notice, for example, is appropriate. Where ascertaining guilt is a simple black and white matter (i.e. did this person drop a cigarette butt?) the risks are perhaps minimal. By contrast, where a police officer has to determine whether to issue a penalty notice for disorder the judgments are far more open to differing interpretations given that the definition of relevant behaviour can be as vague as whether the person’s behaviour is "likely to cause harassment, alarm or distress". [5]

Indeed, our concerns have been borne out in practice. According to a recent report on out-of-court disposals by the Her Majesty’s Inspectorate of Constabulary (HMIC) and the Crown Prosecution Service (CPS) there are "wide variations in practice across police force areas in the proportion and types of offences handled out of court". [6] The method accounted for from 26 to 49% of offences ‘brought to justice’ in different police force areas and the report found that "where greater use is evident, this is linked in some places to a strong emphasis on achieving targets associated with improving performance in the level of offences brought to justice. Target chasing has not been conducive to the effective exercise of discretion." The report recommends, in view of the wide variations in practice and the consequences for alleged offenders and victims, that there ought to be a national strategy for out-of-court disposals to improve consistency. The report also recommends better record-keeping to enhance public confidence. Perhaps most worryingly, of the 190 cases of out-of-court disposals that the report considered that in "one-third of the cases the disposal selected did not meet the standards set out in the existing national and force guidelines that were available."

We do not take issue with the principle that the police should be able to use their professional discretion to determine that despite suspicions or evidence, a prosecution against a suspected offender should not be sought. Indeed, as Sir Hartley Shawcross (then Attorney-General) said in 1951: "It has never been the rule in this country – I hope it never will be – that suspected criminal offences must automatically be the subject of prosecution". [7] However the current system of formalised out-of court disposals fails on two counts. First, as a result of understandable cost-saving and target-achieving desires, it appears that persistent alleged offenders and those suspected of serious offences are not being prosecuted when they should be. Indeed, the recent HMIC report notes that (contrary to national guidance) out-of court disposals are being used to deal with those who appear to be persistent offenders and for alleged offences whose nature or gravity mean that they should not be dealt with out of court. One example being that "An offender with numerous convictions was issued with a simple caution for criminal damage caused during a repeat domestic abuse incident, where the matter had not been referred to CPS for charging advice". The fact that out-of court disposals can be formally recorded and retained and punishment handed out only increases the temptation for this disposal mechanism to be used. Secondly, the system allows for punishment and criminal records to be created and kept without fundamental principles of justice being adhered to. Instead, prosecutors and police are able to impose on-the-spot punishment without the involvement of the judiciary. By-passing normal judicial and fair trial safeguards can leave individuals open to bias and irrationality in sentencing decisions. An out-of-court disposal, whilst undoubtedly sparing an individual the disruption of court proceedings, can have a significant and long-lasting impact on life chances. An individual who receives a conditional caution, for example, in addition to having to comply with a specified condition, will have a criminal record which may well affect his or her employment prospects as it is disclosable through a CRB check. A caution can also restrict someone’s ability to obtain a visa to travel abroad.

While Liberty appreciates the desire to remove delays in the criminal justice system, powers designed to achieve this should not be at the expense of justice. The move towards summary justice is not only of concern from the perspective of the rights of the suspect. Fair trial safeguards, and the involvement of the independent court in the delivery of punishment, are also in the wider public interest and the interests of victims of crime. The rigours of a criminal trial, in which the prosecution is required to establish guilt beyond reasonable doubt and the defendant has the opportunity to argue their innocence, help to ensure that the right person is convicted. Furthermore, hearing criminal cases and handing down punishments in open court, demonstrates that justice is being done and that the state will not accept criminal behaviour, providing a public warning against offending.

Amendment 14 – omit clause 108

Page 86, line 24, omit clause 108

Effect

This suggested amendment would remove the power to introduce, as a condition of a conditional caution, a requirement that a foreign national leave the country.

Briefing

Liberty is extremely concerned at plans to refrain from prosecuting foreign national suspects who agree to leave the UK as a condition on receiving a caution. Liberty is worried about the implications of this proposal on public protection and the rights of victims. The HRA places the Government and authorities such as the parole board and the police under a positive obligation to safeguard the right to life and the right to freedom from inhuman and degrading treatment. This obligation entails not only a duty to protect the public from attack by dangerous individuals, but also the right of the victim to have her perpetrator brought to justice. This is nowhere more evident than in the case of X v the Netherlands, [8] where the Court of Human Rights held that the state was under a positive obligation to provide an effective criminal law sanction in the case of a young, mentally handicapped girl who was raped whilst staying in a care home. The objective of this proposal is apparently for Government to unburden itself of the cost of dealing with suspected offenders and as a means of furthering the Government’s drive to cut immigration. Victims of crime understandably and rightly want to see suspected offenders prosecuted and - if found guilty - punished for their crimes. This is the case whether the suspected offender is a British citizen or a foreign national.

Amendment 15 – amend clause 109

Page 87, line 24, omit lines 24 – 30 and insert - "(1) A constable may give a child or young person ("Y") a caution under this section ("a youth caution") where the following requirements are satisfied - (a) The first requirement is that the constable has evidence that the young offender has committed an offence, and (b) The second requirement is that a relevant prosecutor decides-

(i)  that there is sufficient evidence to charge the young offender with the offence, and

(ii)  that a caution should be given to the young offender in respect of the offence,

(c) The third requirement is that the young offender admits to the constable in the presence of an appropriate adult that he committed the offence, (d) The fourth requirement is that the authorised person explains the effect of the caution to the young offender in the presence of an appropriate adult, including the fact that it will appear on a criminal records bureau check"

Page 88, line 22, insert - "(8) In this Chapter ‘relevant prosecutor’ has the meaning set out in section 27 of the Criminal Justice Act 2003."

Page 88, line 43, omit subclauses (5) and (6).

Effect

The suggested amendments to clause 109 retain the proposed system of youth cautions as a replacement to the scheme of reprimands and warnings set out in sections 65 to 66 of the Crime and Disorder Act 1998 . H owever they insert prosecutorial oversight as a precondition of issuing a caution, in much the same way that prosecutorial oversight operates in relation to conditional cautions for adults under the Criminal Justice Act 2003. Additional safeguards are inserted to ensure that the young person and their app ropriate adult fully understand the impact of the caution, including the fact that it will appear on criminal records bureau checks.

The removal of subclauses 66ZB (5) and (6) would mean that judges have the flexibility to consider the full range of disposals available to respond to an individual case – including a conditional discharge – notwithstanding the fact that an individual has received a caution or a number of cautions within the previous two years.

Briefing

The importance of independent prosecutorial oversight is nowhere more acute than in the context of children entering the criminal justice system. Further to general concerns about due process and open justice, Liberty believes it is extremely important that appropriate safeguards exist in circumstances where children can be stigmatised as a result of things done before they reach full maturity. For these reasons Liberty welcomed the suggestion, in the Government’s Green Paper on sentencing, that the slate could be wip ed clean for juveniles when they reach adulthood for all but the most serious offences. Childhood law-breaking is not necessarily indicative of future behaviour and a greater recognition of developmental immaturity would be a welcome addition to the regime of youth cautions and to the rehabilitation of offenders regime .

The suggested removal of constraints on the ability of judges to impose conditional discharges is designed to allow judges to respond to the circumstances of a particular case. Whilst it may well not be appropriate to impose a conditional discharge on an individual who has received a series of recent cautions, sentencing is by nature a case specific process best carried out by independent judicial decision makers in possession of all the relevant facts.

Amendment 15 – omit clause 112

Page 90, line 1, omit lines 1 – 16.

Effect

This amendment would reverse the removal of prosecutorial oversight of the system of youth conditional cautions.

Briefing

In a situation where a punitive sanction is to be imposed it is particularly important that there is consistency and impartiality in sentences. Liberty has grave concerns about the operation of conditional cautions which allow sanctions to be imposed on suspected offenders without corresponding due process safeguards. In the absence of this level of protection, as a minimum requirement of due process, it is essential that there is prosecutorial oversight of the system.

Conclusion

Liberty has grave concerns about the impact of Part 2 of the Bill which forms part of a wider assault on access to justice. The reforms to the CFA scheme will mean justice is effectively denied to all but the extremely wealthy and will leave serious human rights violations, as well as other forms of wrongdoing by large corporations, unchallenged, creating injustice in individual cases, and fostering a general culture of impunity.

By contrast Liberty is optimistic, in light of the issues tackled in the Government’s Green Paper on the Punishment, Rehabilitation and Sentencing of Offenders, that further progressive sentencing reforms may be on the horizon, including a broadening of the scope of the Rehabilitation of Offenders Act 1974 and repeal of the dishonest and dysfunctional IPP regime. We welcome many sentencing reforms already included in this Bill and we urge the Government to think again about proposals to extend the use of curfews and remove scant due process protections in the context of out-of-court disposals.

September 2011

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[1] Clause 43.

[2] Clause 43(1). Subject to limits imposed by the Lord Chancellor in secondary legislation

[3] Clause 42.

[4] Clauses 46-49.

[5] There is provision for the Lord Chancellor, by regulations, to make further provisions.

[6] Clause 51.

[7] Clause 41(2).

[8] Martin Day, Partner in Leigh Day, taken from Press Release accessible at: http://www.leighday.co.uk/news/news-archive-2011/moj-bill-will-put-corporate-wrongdoers-beyond-the .

[9] Amendment 228, Karl Turner MP, Notices of Amendments: 1 September 2011 .

[10] Clause 53.

[11] Clause 54(2).

[12] When deciding on a sanction, courts will be required to consider extent to which the individual has already complied.

[13] Clause 57.

[14] Clauses 57 and 58.

[15] Clause 59.

[16] See clause 59(3) which would repeal the restrictions set out at s202(4)-(5) of the Criminal Justice Act 2003.

[17] Clause 60.

[18] Clause 61 (Foreign travel prohibition) and clause 62, mental health treatment requirement).

[19] Clauses 63-64.

[20] Clause 65(1)

[21] Clause 65. In the later case, this can presently only happen with the recommendation of an appropriate officer – usually the local youth offending team.

[22] Clause 66(2).

[23] Clause 67.

[24] Limited to to adult defendants with no prior convictions and to non-extradition proceedings.

[25] For offences punishable with imprisonment – certain exceptions to the presumption in favour of bail do not apply. In relation to non- imprisonable offences some of exceptions to the presumption in favour of bail will only be applicable where a defendant is aged under 18 or has been convicted of the offence.

[26] Clause 74, read together with Clause 81.

[27] Clause 94.

[28] Clause 74(5).

[29] Clause 97.

[30] Clause 103(10).

[31] Clause 106 read together with Schedule 14.

[32] Schedule 14(4)(9).

[33] Clause 107.

[34] Clause 113(1).

[35] Schedule 10, paragraph 5.

[36] Immigration Act 1971, section 3 and UK Borders Act 2007, section 32.

[1] House of Commons Library Research Paper, Research Paper 11/53, pg 47 – available at www.parliament.uk/briefing-papers/RP11-53.pdf . See also comments by the Secretary of State for Justice, Hansard 29 th June; Column 989.

[1] Criminal Justice Act 2003, s225. For the list of specified offences see Schedule 15A.

[1] Other such measures include the Violent Offender Order or VOO to the ASBO and the Parenting Order.

[1]

[2] Exercising Discretion: The Gateway to Justice, June 2011, Criminal Justice Joint Inspection – A study by Her Majesty’s Inspectorate of Constabulary and Her Majesty’s Crown Prosecution Service Inspectorate on cations , penalty notices for disorder and restorative justice available at: http://www.hmic.gov.uk/SiteCollectionDocuments/Joint%20Inspections/CJI_20110609.pdf .

[3] Ibid .

[4] Ibid .

[5] Section 1, Criminal Justice and Police Act 2001 .

[6] Ibid at Footnote 29.

[7] House of Commons Debates, Volume 483, 29 January 1951 .

[8] [1985] ECHR 8978/80.