Legal Aid, Sentencing and Punishment of Offenders Bill

Memorandum submitted by JUSTICE  (LA 90)

Legal Aid, Sentencing and Punishment of Offenders Bill Part 3 – Chapters 1 and 2

Introduction

1. JUSTICE is a British-based human rights and law reform organisation, whose mission is to advance justice, human rights and the rule of law. JUSTICE is regularly consulted upon the policy and human rights implications of, amongst other areas, policing, criminal law and criminal justice reform. It is the British section of the International Commission of Jurists.

2. This document supplements JUSTICE’s Committee stage briefing on Part 3 of the Legal Aid, Sentencing and Punishment of Offenders Bill and suggests further amendments to Chapters 1 and 2 of Part 3 for Public Bill Committee stage. A separate JUSTICE briefing covering the Bill’s legal aid provisions is available from our website.

Clause 54 – Duty to give reasons for and to explain effect of sentence

Page 39, line 19 [clause 54], leave out paragraph and insert

"(4) If the offender is not present when sentence is passed:

(a) subsection (3) takes effect as if the words ‘to the offender’ were omitted, and

(b) in addition, the court must provide a written version of both its statement given under subsection (2) and its explanation given under subsection (3).

(c) A copy of both the written statement and explanation made under subsection (4)(b) must be sent to:

(i) the offender at his current place of residence;

(ii) the offender’s legal representative."

OR

Page 39, line 19, [clause 54], leave out paragraph and insert:

"(4) If the offender is not present when sentence is passed, subsection (3) takes effect as if the words ‘to the offender’ were omitted.

(4A) The court must provide written versions of any statement given under subsection (2) and any explanation given under subsection (3).

(4B) Copies of the documents mentioned in subsection (4B) above must be given (if the relevant person is in court when sentence is passed) or sent by post (if the relevant person is not in court when sentence is passed) to:

(a) the offender;

(b) the offender’s legal representative;

(c) the victim(s) of the offence;

(d) family member(s) and/or representative(s) of the victim(s) of the offence;

(e) the Crown Prosecution Service;

(f) any co-defendant convicted in the case, whether or not at the same trial/hearing;

(g) the legal representative of any person in (vi) above;

(h) the probation service or, if the offender is under 18 years of age, the youth offending team;

(i) If the offender is under 18 years of age, the offender’s parent/guardian;

(j) Representatives of the media.

(4C) The duty in subsection (4B) is subject to any reporting restrictions in force in the case.

(4D) Where the offender is aged under 18, no details tending to identify him may be included in the written reasons provided under subsection (4B)(j)."

AND

Page 39, line 22 [Clause 54], leave out "(8)" and insert "(9)"

Page 39, line 42 [Clause 54], leave out paragraph (b)

Page 39, line 43 [Clause 54], at end insert:

"( ) Where the court imposes a sentence that may only be imposed in the offender’s 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.

The first and second amendments above are alternatives. Both would remove the Lord Chancellor’s power to prescribe by regulations cases where the duty to give reasons for the sentence imposed and explain its effect in court should not apply. We believe that this duty should apply in all cases. However, we also believe that it is desirable for a written version of the reasons for and explanation of the sentence should be provided. The first amendment provides for the case where the offender is not present in court for sentence (for example, because he has chosen to absent himself). Under this amendment the judge or bench would still have the duty to explain to those in court the reasons for imposing the sentence and its effect but a written version would be provided to the offender. The second amendment would also provide for this but in addition, written versions would be distributed to the victim/victim’s family member(s) and/or representative(s) and others with an interest in the case, including media representatives. We hope that this would increase understanding of the reasons for imposing sentences and how they work and encourage more accurate reporting of the same, thus increasing public confidence in the criminal justice system.

The third amendment would ensure that courts remain under specific duties to give reasons why it is of the opinion that an offence is so serious that only a custodial sentence is appropriate, or why it is sufficiently serious that a community sentence should be imposed. This would help to ensure that these considerations remain prominent in the court’s thinking and that the sentencing thresholds are not diluted.

Clauses 60 and 67 – curfew requirements

Page 45, clause 60, leave out clause

Page 49, clause 67, leave out clause

OR

Page 45, line 4 [clause 60], leave out paragraph

Page 50, line 1 [clause 67], leave out paragraph

The first two amendments here would leave out clauses 60 and 67. Clause 60, which applies to adults, would lengthen the maximum period of a curfew requirement imposed under a community order or suspended sentence order from six to twelve months and the maximum number of hours per day under curfew from twelve to sixteen. Clause 67 would do the same for children subject to a youth rehabilitation order.

JUSTICE has serious human rights concerns regarding the imposition of curfews up to sixteen hours a day, as outlined in our Committee stage briefing. We also believe that they may limit the offender's capacity to carry out positive rehabilitative activities and could contain him/her in premises where s/he may perpetuate or fall victim to domestic violence, abuse or neglect. This is of particular concern in relation to children. Further, increasing the extent of curfews in this way may result in a ‘ratcheting up’ of curfew requirements and community sentences generally.

We believe that these clauses should be removed from the Bill. However, we also include here alternative amendments that have been proposed by the Prison Reform Trust that would improve the clauses if they remain in the Bill. This second group of amendments would remove sub-clauses 60(2) and 67(2). They would therefore allow the maximum period of a curfew requirement to be increased to up to twelve months while keeping the maximum daily number of hours’ curfew at twelve, as at present.

Clauses 62 and 68 – mental health treatment requirements

Page 46, clause 62, leave out clause

Page 50, clause 68, leave out clause

Clauses 62 and 68 would remove the need for medical evidence before a mental health treatment requirement is imposed in an adult community order/suspended sentence (clause 62) or a youth rehabilitation order (clause 68). It is in our view wrong in principle to impose such requirements – when they might be medically inappropriate and/or when another disposal under the Mental Health Act 1983 could be warranted (matters which the registered medical practitioner (RMP) is currently required to address). These amendments would therefore remove these clauses from the Bill.

Clause 65 – referral orders for young offenders

Page 46, line 28 [Clause 65], at end insert

"( ) in subsection (1) after "offence" insert "or having been convicted after trial, admits his responsibility for the offence and any connected offence and agrees to take part in the referral order process."

Page 46, line 29 [Clause 65], at end insert

"( ) in that subsection in paragraph (b) after "offences;" insert "or

(ii) having been convicted after a trial, the offender admits his responsibility for the offence and any connected offence and agrees to take part in the referral order process."

(iii)

JUSTICE welcomes clause 65, which will remove restrictions upon the youth court’s discretion to impose a referral order upon a child who has previous convictions and/or who has previously received one or more referral orders. We believe, however, that referral orders should be available to offenders who plead not guilty and are convicted after trial, provided that following conviction they admit their responsibility for the offence and agree to take part in the referral order process. Our suggested amendment above would provide for this.

Clause 66 – breach of detention and training order

Page 47, line 11 [clause 66], at end insert

"( ) But the power in subsection (3)(a) may only be exercised if the relevant failure to comply with requirements under section 103(6)(b) involved the commission of an offence punishable in the case of an adult with imprisonment"

AND

Page 49, line 31 [clause 66], leave out from "is" to "either" on line 32 and insert

"may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament."

Where a child has failed to comply with supervision requirements imposed for the period of supervision following release during a detention and training order (DTO), Clause 66 gives the court power to impose a further period of supervision, as an alternative to its existing powers to fine or imprison. We support this in principle as it provides a credible alternative to detention, which should always be a last resort and for the shortest appropriate period of time for children, as required under Article 37 of the UN Convention on the Rights of the Child. However, we retain concerns that children with the highest level s of welfare need may receiv e longer and more onerous supervision periods that are likely to be breached and result in detention; in order to prevent this, sentencers and youth offending teams will need to resist the temptation to load more requirements on those children with the most chaotic lives/highest levels of need.

We are concerned that children can currently be imprisoned for minor and technical breaches of detention and training order supervision requirements ; this is contrary to the last resort principle and the aim of the supervision period which is to facilitate the reintegration of the child into the community. Our first suggested amendment above would therefore prevent detention for breach of supervision requirements unless the breach involved the commission of an imprisonable offence.

Th e second suggested amendment concerns the regulation-making power in relation to the interaction of periods of detention imposed for breach of DTO with other sentences. The Bill provides for such regulations to be made by statutory instrument coming into force by the negative resolution procedure. We believe that if a statutory instrument is made affecting the right to liberty it should be scrutinised by Parliament and therefore that the positive resolution procedure should be employed.

Clause 69 – Youth rehabilitation order: duration

Page 50, line 21 [clause 69], at end of line insert "and for "3" substitute "2""

Page 51, line 1 [clause 69], leave out "three" and insert "two"

Page 51, line 22 [clause 69], leave out "three" and insert "two"

Clause 69 of the Bill would allow a youth or magistrates’ court to extend the duration of a youth rehabilitation order (YRO) by up to six months in the event of breach, meaning that a YRO could last for up to three and a half years. Three years is already an extremely long period in the development of a child, during which while on a YRO s/he will have to comply with requirements and is at risk of detention in the event of failure to comply. We believe that in order to facilitate the reintegration of children into the community and their assuming a constructive role in society, as required by Article 40 UN Convention on the Rights of the Child, that YROs should normally last no longer than 12 months (as is the case for youth conference orders in Northern Ireland). However, since we fear that to impose this change in England and Wales at present might result in more children being sentenced to custody, we suggest amendments here that would fix the maximum duration of a YRO at two years, subject to existing exceptions and the new power in the Bill to extend an order by up to six months.

Clause 70 – Youth rehabilitation order: fine for breach

Page 52, line 26 [clause 70], leave out from ", for" to end of line and insert "(i), for "14" substitute "16"."

Page 52, line 28 [clause 70], leave out from ", for" to end of line and insert "(i), for "14" substitute "16"."

Page 52, line 32 [clause 70], leave out from beginning of line to "paragraph" in line 33.

We believe that the massive rise in maximum fines for breach of YROs proposed in the Bill takes no account of the fact that fines received by children under 16 are likely to be paid by their parents/guardians and that 16 and 17 year olds are likely to have no or lower incomes than adults. These amendments would provide that the current £250 limit on fines for breach of a YRO for under- now apply to 16 and 17 year olds. The final amendment in this group is consequential.

Clause 73 and Schedule 10 – Amendment of enactments relating to bail

Page 168, [Sched 10, para 12], leave out lines 26 to 29 and insert:

(a) commit an offence on bail by engaging in conduct that would, or would be likely to, cause physical or mental injury to a person other than the defendant; or

(b) interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.

Page 169, [Sched 10, para 23], leave out line 41 to end of line 4 on page 170 and insert:

(2) For sub-paragraph (b) substitute:

(b) interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person.

Page 170, line 24 [Sched 10, para 27], leave out from "would" to end of line 33 and insert:

"(i) commit an offence on bail by engaging in conduct that would, or would be likely to, cause physical or mental injury to a person other than the defendant; or

(ii) interfere with witnesses or otherwise obstruct the course of justice whether in relation to himself or any other person."

Schedule 10 to the Bill would subject bail in adult cases [1] where a person has been accused or convicted of an imprisonable offence, or where a person has been released on bail but fails to surrender to custody, to a new test where bail could not be withheld if there were no real prospect that the person would receive a custodial sentence upon conviction, unless he might, if released on bail, commit an offence involving domestic violence. It would also remove the court’s power where an adult was accused or convicted of a non-imprisonable offence to remand them in custody on grounds of likelihood of failure to surrender to custody or previous arrest for breach of bail plus likelihood of failure to surrender, to commit offences or interfere with witnesses/obstruct the course of justice – but would create a new ground for withholding bail on the grounds that he might commit an offence involving domestic violence.

JUSTICE is concerned that the new test leaves no residual discretion to the court to withhold bail even where there is strong evidence that a defendant will commit a violent offence, intimidate witnesses or otherwise interfere with the course of justice if released/if he remains at liberty. The exceptions in the Bill relating to domestic violence are, we believe, confined to too narrow a class of case, while in other cases – for example where there is a substantial risk of violent intimidation of a victim of crime not of the same household as the defendant – there is no equivalent protection.

We further question the new ‘no real prospect’ test: first, it may be very difficult for a court at an early stage in criminal proceedings (or even up to the end of a trial/guilty plea) effectively to assess any likely sentence in the case; and secondly, there may be a legitimate expectation created by its conclusion that there is no such real prospect. The sentencing court with full relevant information before it may, however, take a different view of the case and there should be no question of its being influenced or, particularly, bound by the court’s earlier view.

We therefore believe that the reforms to the Bail Act proposed in the Bill are misconceived and that better changes could be made that would, for example, prevent bail from being withheld on the grounds of likelihood of failure to surrender to custody in minor cases while leaving other criteria for withholding bail unchanged.

September 2011


[1] Except those to which s25 Criminal Justice and Public Order Act 1994 applies, that is to say, a person charged with or convicted of homicide or rape after a previous conviction for such an offence.

Prepared 14th September 2011