Memorandum submitted by The Criminal Justice Alliance (CJA) (C&C 13)

Crime and Courts Bill

1. The Criminal Justice Alliance (CJA) is a coalition of 70 organisations - including campaigning charities, voluntary sector service providers, research institutions, staff associations and trade unions – involved in policy and practice across the criminal justice system. The CJA exists to highlight the failings of the criminal justice system, and to provide practical and realistic solutions to these problems from the expertise of our members.

2. We bring together members to campaign on reducing the overall scope of the justice system, and prison numbers in particular. We do this through a focus on prevention, diversion and a more proportionate and effective justice system.

3. Although the CJA works closely with its members, this submission should not be seen to represent the views or policy positions of each individual member organisation. For a full list of the CJA’s members, please see http://www.criminaljusticealliance.org/organisations.htm

4. This memorandum highlights the main areas of interest for the Criminal Justice Alliance in the Crime and Courts Bill which are contained in Schedule 15: Dealing non-custodially with offenders.

Schedule 15: Dealing non-custodially with offenders

Part 1 Community orders: punitive elements

5. We are concerned that the measures in Part 1 of the schedule which mandate a punitive element in every order will unduly restrict sentencers’ discretion and, in practice, could mean that numbers of vulnerable offenders, in particular offenders with learning difficulties, disabilities, mental health issues and complex needs, will be given inappropriate sentences. This will undermine the effectiveness of community penalties and could lead to increased breach rates, by setting people up to fail.

6. Recent research into the caseload of Lincolnshire Probation Trust found that at least a quarter of offenders under probation supervision in Lincolnshire had a current mental illness [1] . Other estimates have suggested that up to 42% of offenders supervised by probation services have mental health problems. [2]

7. Work by the Prison Reform Trust has identified that 20- 30% of offenders have learning difficulties or learning disabilities that interfere with their ability to cope within the criminal justice system , and around 7% of this group will have very low IQs of less than 70. [3] Mandating a punitive element in every order will disproportionately impact on this group – many of whom could struggle to comply with their order without support.

8. The government’s impact assessment published alongside the Effective Community Sentences consultation states that 39% of people who will be impacted by a punitive element in every order have a disability, compared with 22% of the general population. [4] Other research, which also includes prevalence of long-standing illnesses, found that proportion of offenders under probation supervision who report a disability or long-term illness is similar to that of prisoners, and both are higher than in the general population. For example, men aged 16 to 44 under probation 46% reported a long-standing illness or disability, compared to 26% for the population as a whole. [5]

9. The impact assessment published alongside the proposals indicates that the government accepts that punitive elements could in effect replace current rehabilitative ones (such as drug rehabilitation requirement, mental health treatment or accredited programme) because courts will now impose a curfew or unpaid work instead. Recent work by the Criminal Justice Alliance with the Centre for Mental Health has shown that already the Mental Health Treatment Requirement is already significantly underused. The focus should be on supporting and encouraging the uptake of treatment, and ensuring that it is available in every area. If rehabilitative elements were to be replaced by punitive ones, this could undermine the effectiveness of community penalties.

10. The view of the respected Justice Select Committee is that making sentences more punitive does not mean that they will necessarily be effective in protecting the public by reducing re-offending [6] . It is clear from new MoJ research that punitive element can have some impact on levels of reoffending in the short-term, but that supervision and other programmes are equally, if not more, important. It is also clear that a punitive element on its own alone is not as effective unless combined with rehabilitation. The evidence base shows that a one size fits all approach will not work in reducing re-offending [7] . The evidence shows that victims want offenders to stop committing crime. It is important that in the final construction of sentences that, in a time of scarce resources, punitive elements do not push out rehabilitative ones. Without sufficient safeguards, this proposal carries that risk.

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

11. The CJA strongly welcomes part 2 which will ensure more access to Restorative Justice for victims of crime. There is significant support from across the justice sector, professionals and the public for greater use of restorative justice. The Criminal Justice Alliance represents 70 organisations, who have worked alongside others, including the Restorative Justice Council and Prison Reform Trust, in working for this change. In July 2011 we published Restorative Justice: Time for Action which outlines the key benefits of pre-sentence restorative justice which is available at http://criminaljusticealliance.org/RJtimeforaction.pdf

12. Introducing access to pre-sentence restorative justice builds on the Ministry of Justice research trials on restorative justice which showed that:

· 70% of victims offered restorative justice at the pre-sentence stage said that RJ had come at ‘about the right time’ for them. 85% of victims taking part in RJ said that they were satisfied with the experience.

· Restorative justice led to a 14% reduction in the frequency of re-offending, and cost-savings to the justice system. Offenders were likely to say yes to restorative justice at the pre-sentence stage – meaning more victims got access to restorative justice.

· The Judiciary welcomed pre-sentence restorative justice as it provided further information on which to base their sentencing decisions.

· Offenders who took part in restorative justice pre-sentence received both custodial and non-custodial sentences, depending on the severity of the crime.

13. Along with others, including CJA member the Restorative Justice Council, we stress the need for new Sentencing Guidelines to ensure the Courts have confidence to use the new provisions; clear guidance to statutory agencies on administration of the RJ requirement, ensuring that best practice is followed, that both victim and offender have time to consider their involvement in RJ and engage with preparation and risk assessment prior to a meeting, and that participants are offered RJ by trained, accredited facilitators; and investment in quality assurance and the development of capacity at local level, so that the Courts can have confidence that, in their area, there are safe, reliable and high quality restorative justice services to refer cases to under this legislation.    

Part 4: Electronic Monitoring

14. Whilst there are some groups of offenders for whom electronic location monitoring could be appropriate (for example those convicted of sexual or violent offences), the Criminal Justice Alliance believes that electronic monitoring should not replace the importance of face to face contact with probation or others involved in supporting individuals on their sentence. This is important given the lack of evidence on the effectiveness of electronic monitoring on reducing reoffending, particularly in the UK context. This is in contrast to the recent data published by MoJ showing the effectiveness of supervision in reducing reoffending.

15. Furthermore, it is important that sentencers and other criminal justice agencies do not come to use electronic monitoring devices on those who might otherwise have been dealt with in a more proportionate way , for example monitoring low level offenders rather than high risk individuals. Some studies have found this to be the case, further increasing the cost to the system [8] . Furthermore, the HM Inspectorate of Probation recently found that less than a third of community orders with electronically monitoring curfews had been made following a pre-sentence report by a probation officer. Therefore, we need safeguards to ensure EM is used proportionately and appropriately.

Part 7: Provision for female offenders

16. We strongly welcome part 7 which will ensure that, in every local area, community sentences are available that are appropriate for women offenders. Part 7 was included in the Bill through an amendment tabled by Lord Woolf, Chairman of the Prison Reform Trust.

17. Along with Prison Reform Trust we are concerned that the government would seek to repeal such an important amendment. Women who offend have distinct needs and distinct offending behaviour. As research for the Fawcett Society concluded, "it is clear that women offenders' needs tend to be complex and interlinked, often encompassing problems with health, childcare, finances, housing, education, training and employment and experience of victimisation." [9] Yet the existing evidence does not suggest that community sentences are sufficiently tailored to meet these needs.

18. Investment in credible and appropriate alternatives to custody for women is essential. Programmes need to be developed in the community which are specifically designed for women and address their needs, while women-only programmes should also be provided. As well as reducing reoffending, community sentences designed specifically for women would also help to reduce the rate of breach, as they would better fit with women's needs and responsibilities.

19. A paper by Professor Carol Hedderman, published by the Criminal Justice Alliance highlighted the high numbers of non-violent women being sent to prison for breach of a community penalty when the original offence would not have warranted custody. [10]   As Baroness Corston recommended that "community provision for nonviolent women offenders should be the norm". [11] This legislation is an important opportunity to ensure this is the case.

Young adult offenders

Young adults are disproportionately involved in the criminal justice system and there are currently high reoffending rates for this group. Young adults in trouble with the law have specific needs that may make them more vulnerable than older offenders, and many exhibit immaturity that may be related to their offending. An approach that is targeted to address young adults’ specific needs and takes into account their developing maturity could have a significant impact on improving the effectiveness of the criminal justice system. [12]

The CJA is a member of the Transition to Adulthood Alliance which evidences and promotes effective approaches for young people in the transition to adulthood throughout the criminal justice process .

February 2013

[1] Brooker, C., Sirdifield, C., Blizard, R., Maxwell-Harrison, D., Tetley, D., Moran, P., Pluck, G., Chafer, A., Denney, D., Turner, M., (2011) An investigation into the prevalence of mental health disorder and patterns of health service access in a probation population . Lincoln: Criminal Justice and Health Research Group, University of Lincoln.

[2] Solomon, E. & Silvestri, A. (2008) Community Sentences Digest . London: Centre for Criminal Justice Studies, King’s College, London.

[3] Loucks, N. (2007) No One Knows The prevalence and associated needs of offenders with learning difficulties and learning disabilities. Prison Reform Trust.

[4] Ministry of Justice (October 2012) Punishment and Reform: Effective Community Sentences Government Response: Equality Impact Assessment. London: MoJ

[5] Mair, G. and May, C. (1997) Offenders on probation , London: Home Office

[6] Justice Select Committee (2011) Role of the Probation Service: Justice Committee - Eighth Report

[7] Weaver and McNeill (2010) Changing Lives: Desistance Research and Offender Management , Scottish Centre for Crime and Justice Studies.

[8] Payne, B. K., and Gainey, R. (2004) 'The electronic monitoring of offenders released from jail or prison: safety, control and comparisons to the incarceration experience', The Prison Journal , 84: 423-434. ; Padgett, K.G., Bales, W. and Blomberg, T. (2006) 'Under surveillance: An empirical test of the effectiveness and consequences of electronic monitoring', Criminology and Public Policy, 5: 61-92.

[9] p 51: Gelsthorpe, L, Sharpe, G and Roberts, J (2007)   Provision for women offenders in the community- available at http://www.fawcettsociety.org.uk/documents/Provision%20for%20women%20offenders%20in%20the%20community(1).pdf

[10] http://criminaljusticealliance.org/docs/CJA_WomenPrisonReportFINAL.pdf

[11] Corston, J (2007) The Corston Report: A report by Baroness Corston of a review of women with particular vulnerabilities in the criminal justice system, London: Home Office.

[12] Transition to Adulthood Alliance (2012) Pathways from Crime . Barrow Cadbury Trust. http://www.t2a.org.uk/

Prepared 6th February 2013