Crime and Courts Bill

Memorandum submitted by the Prison Reform Trust (C&C 10)

Crime and Courts Bill

1. The Prison Reform Trust is an independent UK charity working to create a just, humane and effective penal system. We do this by inquiring into the workings of the system; informing prisoners, staff and the wider public; and by influencing Parliament, government and officials towards reform. The Prison Reform Trust's main objectives are 1) reducing unnecessary imprisonment and promoting community solutions to crime; and 2) improving treatment and conditions for prisoners and their families. The Prison Reform Trust provides the secretariat to the All Party Parliamentary Penal Affairs Group. For more information visit www.prisonreformtrust.org.uk

2. This memorandum concerns key parts of Schedule 15: Dealing non-custodially with offenders; David Burrowes’ proposed amendment (NC7) to bring youth courts into the remit of sections 37 and 47 of the Children’s Act 1989; and omissions from the bill on probation, young adults and vulnerable defendants.

Schedule 15: Dealing non-custodially with offenders

Part 1: Community orders: punitive elements

3. The Prison Reform Trust is concerned that the new duty contained in part one of schedule 15 will limit the discretion of judges and magistrates in setting an appropriate sentence based on the facts and circumstances of the individual case. It creates a false and unhelpful divide between "punitive" and "rehabilitative" requirements. Essentially any sentence handed down by the courts is a sanction or punishment and offenders are required by law to comply with an order of the court and there are consequences for non-compliance.

4. If it would be unjust to impose a punitive requirement, it seems wrong to insist that courts nevertheless make such a requirement just because the circumstances cannot be described as exceptional. For example, courts might consider that it was unjust to impose a punitive requirement in many cases where offenders have learning disabilities or mental health problems. Unfortunately these circumstances are far from exceptional as many offenders who appear the courts have such problems. Research shows that:

· 7% of adult prisoners have an IQ of less than 70; and it is generally acknowledged that 5 - 10% of offenders have learning disabilities. [1]

· 10% of men and 30% of women have had a previous psychiatric admission before entering prison. [2]

5. It is vital that sentencing requirements take into consideration the particular abilities and support needs of individual offenders to avoid unreasonable or unrealistic expectations being imposed. Despite government assurances in the equality impact assessment of the proposals that it would take appropriate steps to mitigate the disproportionate impact on vulnerable groups, there is nothing in the legislation which

· Gives guidance to the courts on a) what counts as exceptional circumstances or b) how these circumstances will be identified

· Clarifies what arrangements will be made to ensure that offenders with learning disabilities or mental health problems understand the requirements of an order

· Clarifies what reasonable adjustments will be made to requirements for offenders with physical or sensory disabilities, learning disabilities or mental health needs

· Clarifies who will be responsible and accountable for the above.

6. It does not make sense to require courts to impose punitive requirements where they consider that this could increase, rather than reduce, the likelihood that the offender will commit further offences and create more victims in the future. The government’s own original impact assessment of the proposals published in March 2012 with the consultation acknowledged that they could have an adverse impact on reoffending rates by causing "primarily rehabilitative requirements to be substituted with primarily punitive ones". [3] This could undermine the success of community sentences which are now outperforming short prison sentences and are 8.3% more effective in reducing re-offending rates. [4] MPs will want to ensure that vulnerable groups will not be subject to inappropriate punitive requirements and that the new duty will not have an adverse impact on reoffending rates.

Part 2: Deferring the passage of sentence to allow for restorative justice

7. This is the most significant development for restorative justice in England and Wales since legislation introducing referral order panels to the youth justice system in 1999. The Prison Reform Trust, the Restorative Justice Council, Criminal Justice Alliance and Victim Support have all supported moves to establish a legislative framework for restorative justice. We are particularly grateful to MPs and Peers from all three main political parties who put the case for legislation during debates on the Legal Aid, Sentencing and Punishment of Offenders Bill.

8. Pre-sentence restorative justice has been shown to work internationally and by positive evidence from a £7 million government research programme. [5] It provides the judiciary with better information to inform sentencing and can be introduced without causing delay in court proceedings. [6] With 22% of victims who participated in restorative justice saying it should have been offered to them sooner, pre-sentence restorative justice provides victims with the earliest opportunity to participate. [7] There has not been a single instance of pre-sentence restorative justice in this country since the research trials closed in 2004. Without legislation pre-sentence restorative justice will not happen and we would encourage MPs to support the government’s proposals.

Part 3: Removal of limits on compensation orders made against adults

9. The government acknowledged in its community sentence consultation that the value of compensation orders and fines should be dependent on the ability of the offender to pay. The removal of the £5,000 limit makes it essential that appropriate safeguards are in place. Safeguards should ensure that details of an offender’s financial circumstances are accurate and fully taken into account during the setting of the order. This is the intention of Part 6 of Schedule 15 and MPs will want to scrutinise these proposals to ensure that they provide adequate protection (see paragraph 17 below).

10. A forthcoming review by the government of the Victim Personal Statement will look at how more effective use can be made to provide courts with relevant information about injury, loss or damage an offence has caused to a victim. The statement aims to provide courts with better information to consider when deciding whether to impose a compensation order. The Sentencing Council will also examine whether changes are necessary to existing guidelines on compensation orders. The Prison Reform Trust welcomes this; however, it will be necessary to ensure that necessary safeguards are taken into account when setting the compensation order and that the value is proportionate to the offence.

Part 4: Electronic monitoring of offenders

11. Electronic monitoring, where used appropriately, in conjunction with supervision and other supportive and rehabilitative requirements, and subject to the recommendation of trained probation staff, can be an effective means of enabling a person to comply with the requirements of their community order. However, in the context of probation staff and budget cuts, and the opening of the market in community sentence provision to the private sector, we are concerned that the new measure could result in the increased use of electronic monitoring as a standalone requirement, with potentially negative consequences for reoffending and public safety.

12. Electronic monitoring should not be seen as an alternative to the crucial face-to-face relationships, supervision and support needed for many offenders. Existing research, most recently evidenced in a report by HM Inspectorate of Probation, [8] is far from conclusive on the ability of electronic monitoring to act as a deterrent to re-offending and its rehabilitative qualities, particularly as a standalone measure. The Inspectorate also found that only 29% of community orders with electronic monitoring curfews had been made following a pre-sentence report by a probation officer, compared with 90% in 2008. [9] This is concerning and suggests that they could be being used ineffectively or in inappropriate situations, such as where there is a risk of domestic violence.

13. MPs will want to ensure that appropriate safeguards are in place and that electronic monitoring is used as much as possible in conjunction with other supportive and rehabilitative requirements. In addition, full account should be taken of civil liberties considerations, including access, retention, and disposal of location based monitoring data.

Part 5: Community orders: f urther provision

14. The Prison Reform Trust supported the introduction of section 67 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. This allowed a court increased flexibility in dealing with breaches of community sentences through the option of having the offender appear before the court and being held accountable, but taking no further action if that were deemed appropriate. We are concerned that the government has now decided to remove this uncommenced provision of the Act.

15. The measure recognised that a return to court can of itself prove a sufficiently salutary experience in many cases. For many people with a mental health need or learning disability, making an order more onerous is simply setting them up to fail and increases the likelihood of further breach. In some cases, fines could increase the pressure on offenders who are struggling financially and increase the risk of further offences of theft, burglary or robbery to obtain money.

16. Figures published for the calendar year 2009 show that 3,996 people were received into prison establishments in England and Wales for breach of a community sentence. [10] With a prison place costing around £40,000 per year, [11] and almost half of adults leaving prison reconvicted within one year of release, rising to 57% for those serving sentences of less than 12 months, the use of custody as a punishment for technical breach is expensive and in many cases ineffective. Having introduced sensible measures to allow courts increased flexibility in dealing with breach of community orders, MPs will want to clarify why the government has now chosen to remove these provisions.

Part 6: Statements of assets and other financial circumstances of offenders etc

17. The Prison Reform Trust welcomes the introduction of provisions to enable courts to take account of an offender’s financial means when fixing a compensation order or fine. However, additional safeguards should be introduced to ensure that financial penalties do not have a disproportionate impact on the families of offenders, particularly where they offender has primary care responsibilities for children or dependent relatives.

18. In the government’s consultation on effective community sentences it outlined the need to safeguard third-party property rights in its proposals for asset confiscation. In its response the government revised these plans, removing planned asset seizures and instead allowing courts to take account of an offender’s assets when fixing the value of a financial penalty. Despite initial recognition of the need to protect property rights, Schedule 15 currently provides no safeguards to ensure that jointly owned assets (e.g. joint home or vehicle ownership) are identified or that dependents are not adversely affected as a result of the actions of the offender. MPs will want to ensure that appropriate safeguards are introduced to make certain that financial penalties do not have a disproportionate impact on the families of offenders.

Part 7: Provision for female offenders

19. Part 7 provides that contracts made by the Secretary of State with Probation Trusts are to require each Probation Trust to make appropriate provision for the delivery of services to female offenders (subsection 1). Subsection 2 requires contracts referred to in subsection 1 to make provision for women to carry out unpaid work (where appropriate), and to participate in rehabilitative programmes, with the needs of women in mind.

20. Part 7 was included in the Bill as a result of an amendment drafted by the Prison Reform Trust, with the assistance of Paul Cavadino, and tabled by Lord Woolf, chair of the Prison Reform Trust, at Third Reading of the Bill in the House of Lords. In debate, Lord Woolf said there was nothing in the amendment that cut across the Government's "good intentions" and its plan to launch a strategy on women’s justice. He emphasised that "the statute should contain a statement of recognition of the special position of women in the criminal justice system". [12] The amendment was backed by 187 votes to 159, a majority of 28.

21. It is a matter of great concern that the government is seeking to repeal Part 7 (Amendment 79) despite a majority in the House of Lords and cross-party support for prioritising women’s community provision. The new part will help to ensure appropriate community provision for women which takes account of their different offending profile, the complexity of their support needs and the impact of separating children from primary carers. We welcome the government’s commitment to publish a strategy on women offenders. Part 7 is intended to complement the strategy and will provide a much needed statutory footing to ensure that women specific services exist in order to achieve the government’s vision.

22. Over half the women in prison report having suffered domestic violence and one in three has been sexually abused. [13] Most women serve very short sentences, with 58% sentenced to custody for six months or less. 81% of women entering custody under sentence had committed a non-violent offence, compared with 71% of men. [14] They also accounted for 31% of all incidents of self-harm despite representing just 5% of the total prison population. [15]

23. The recent joint inspection report on the use of alternatives to custody for women offenders found a lack of women-specific provision for both unpaid work and offending behaviour programmes and noted that "women-only groups, where run, were often successful." [16] It found that "women’s community centres could play an important role in securing women’s engagement in work to address her offending and promote compliance with her order or licence." [17]

24. Ministry of Justice ring-fenced funding for the national network of women’s centres is guaranteed only until March 2013, and the future of the centres under payment by results commissioning is uncertain. Without adequate statutory protection and secure funding, many centres are likely to cease being able to provide vital services for women offenders and supervising court orders. Their closure would result in the immediate loss of expertise and support for a particularly vulnerable group in the justice system. By giving a statutory footing to community provision for female offenders, the new part will help to protect the vital role played by women’s centres and other local services in the effective delivery of community provision for women. We would encourage MPs to support it.

Extension of section 37 and section 47 of the Children Act 1989 to youth courts (Amendment NC7)

25. The Prison Reform Trust supports David Burrowes’ proposed amendment (NC7) to the Crime and Courts Bill to bring Youth Courts into the remit of sections 37 and 47 of the Children’s Act 1989. If successful, this amendment would have the effect of extending to the Youth Court powers to direct a local authority to investigate, and, if necessary, intervene, in cases where there are concerns a child is at risk of harm. Such powers already exist in the Family Court.

26. The proposal to limit such powers to Youth Court panels which include at least one member of the Family Court would safeguard against inappropriate or misguided directions to investigate, giving local authorities and the Family Court confidence in the Youth Court’s decision-making. If successful, this amendment would begin to address the arbitrary distinction made between children whose circumstances are heard by the Family Court, and those who appear in the criminal courts, with research indicating the welfare needs of the latter are considerable. Such a move would enable the Youth Court to have to hand all the facts relevant to the child, and their circumstance’s, so as to facilitate informed sentencing decisions which do not set children up to fail. In the long term, this could lead to more children completing orders successfully and improved reconviction rates.

Omissions from the Bill

Probation Service reforms

27. The government has just published its response to the Probation Review, [18] which it consulted on jointly with its community sentence proposals. If adopted, these would result in arguably the most significant changes to the Probation Service since the 1925 Criminal Justice Act established probation committees and the appointment of probation officers became a requirement of the courts. Despite this, under current law many of the reforms would not necessarily require new legislation to be enacted. This would deny Parliament its proper role in scrutiny and oversight of the planned reforms. As the Prison Reform Trust outlined in its response to the original consultation, the proposed reforms could lead to a fragmented service which compromises accountability and puts public safety at risk. MPs will want to use the opportunity of the debate to ensure proper oversight and scrutiny of the government’s plans.

Young adults

28. The Prison Reform Trust and allied organisations would like to see provision in the bill to ensure that probation trusts make appropriate arrangements for young adult offenders aged 18-20 serving community sentences. This includes provision for services which provide supervision, support and rehabilitation appropriate to the level of maturity of young adult offenders and which increases the likelihood of compliance with community orders. Young adults, aged 18-20, constitute 4% of the population but make up 15% of those commencing a community sentence and 14% of those sentenced to prison each year. The Prison Reform Trust supported amendments on young adults tabled by Lord Ramsbotham in the House of Lords committee and third reading debates on the bill.

Vulnerable defendants

29. The Prison Reform Trust and allied organisations would like to see provision made in the bill to ensure that, where necessary, vulnerable defendants are provided with the appropriate support to enable their effective participation in court proceedings and in preparing for their own trial. Currently far too many people face court impeded in their understanding due to a learning disability, mental illness, a low IQ or significant communication difficulties. The Prison Reform Trust supported amendments to provide assistance for vulnerable defendants through intermediaries tabled by Baroness Linklater in the House of Lords report stage debate and Lord Bradley in the third reading debate on the bill.

January 2013


[1] Mottram, P.G. (2007), HMP Liverpool, Styal and Hindley Study Report, Liverpool: University of Liverpool

[2] Department of Health (2007), Conference report: sharing good practice in prison health, 4/5 June 2007

[3] Ministry of Justice (2012) Consultation on sentences in the community and the future shape of probation services : Impact Assessment 04/01/2012 , London: Ministry of Justice

[4] Ministry of Justice (2011) 2011 Compendium of reoffending statistics and analysis, London: Ministry of Justice

[5] Ministry of Justice (2010), Green Paper Evidence Report : Breaking the Cycle: Effective Punishment, Rehabilitation and Sentencing of Offenders , London: Ministry of Justice

[6] Ibid.

[7] Ibid.

[8] HMI Probation (2012) It’s Complicated: The Management of Electronically Monitored Curfews: A follow up inspection of electronically monitored curfews, London: HMI Probation

[9] Ibid.

[10] Table 6.9, Offender Management Caseload Statistics 2009, Ministry of Justice

[11] Table 1, Ministry of Justice (2012), Cost per place and cost per prisoner by individual prison, National Offender Management Service Annual Report and Accounts 2011-2012: Management Information Addendum, London: Ministry of Justice

[12] Crime and Courts Bill, 3 rd Reading, House of Lords, 18 December 2012. Available at http://www.publications.parliament.uk/pa/ld201213/ldhansrd/text/121218-0001.htm#12121864000897

[13] Social Exclusion Unit (2002), Reducing reoffending by ex-prisoners, London: Social Exclusion Unit

[14] Table 2.2b, Ministry of Justice (2012), Offender Management Statistics Quarterly Bulletin, April ro June 2012, London: Ministry of Justice

[15] Table 3, Ministry of Justice (2012), Safety in custody statistics, Quarterly update to June 2012, London: Ministry of Justice

[16] Criminal Justice Joint Inspection (2011), Thematic Inspection Report Equal but different? An inspection of the use of alternatives to custody for women offenders, London: CJJI

[17] Ibid.

[18] Ministry of Justice (2012), Transforming Rehabilitation – a revolution in the way we manage offenders’, London: Ministry of Justice. Available at https://consult.justice.gov.uk/digital-communications/transforming-rehabilitation

Prepared 31st January 2013