Memorandum submitted by The Howard League for Penal Reform (C&C 14)

1. The Howard League for Penal Reform is the oldest penal reform charity in the world. We campaign, lobby, publish research and through our legal team, represent children and young adults in custody. We work towards less crime, safer communities and fewer people in prison. For more information about the Howard League please visit www.howardleague.org.

2. The Howard League holds Community Programmes Awards across England and Wales. These annual awards celebrate best practice in community sentencing and champion the cutting edge of the criminal justice system, recognising work in the community that challenges and changes people for the better – be it unpaid work, drug and alcohol treatment programmes, or restorative justice. By finding outstanding community programmes that work with individuals who have committed crime, the Community Programmes Awards not only celebrate success but also promote positive practice in the delivery of community sentences. We believe that well-resourced and well-structured programmes will raise public protection, bring down the rate of reoffending, and repay the damage done by crime in a way that custodial sentences cannot.

3. This memorandum outlines our response to elements of the Crime and Courts Bill which concern community sentences.

Schedule 15: Dealing non-custodially with offenders

Part 1: Community Orders: Punitive elements

4. The government plans to legislate to place a duty on the courts to include a mandatory punitive element in every community order. The government’s response to the consultation on effective community sentences states:

We will legislate to place a duty on courts to include in the community order a requirement that fulfils the purpose of punishment for the offender. The court will be able to exercise this duty by imposing a fine instead if it considers that to be appropriate. While we will not specify what requirements courts should impose, on the basis that what is punitive for one offender may not be punitive for another, our expectation is that these would generally be restrictions of liberty that represent to the public a recognisable sanction (such as curfews, exclusion, or community payback). The duty will provide for an exemption in exceptional circumstances where it would be unjust to impose a punitive element.

5. These changes to community sentences are at best unnecessary and at worst detrimental. Sentencers already have the opportunity to create a sentence which meets the needs of each individual and combines an appropriate amount of punishment, supervision and treatment depending on each case. There are currently twelve requirements which can be combined which allow the court to use its discretion to provide a tailored response to each individual and their offence. There is already scope to impose punitive elements to a sentence but by making it mandatory, unless there are ‘exceptional circumstances’, the government is taking away the discretion of sentencers to choose the most appropriate combination of requirements to suit the needs of the individual. It is essential that the courts have the capacity to design a sentence which is appropriate to the individual and their offence. Government should be taking steps to encourage those sentencing choices, rather than restrict them, and should focus efforts on ensuring that sentencers can confidently access all the requirements available to them.

6. The government is unclear about the ‘exceptional circumstances’ that would make it unjust to impose a punitive element. The government’s response to the consultation states that nearly all respondents indicated that offenders with mental health issues should be excluded from a mandatory punitive requirement and many suggested offenders with learning difficulties, those unable to carry out a punitive requirement because of poor health or addiction, and those with personality disorders or low maturity (in the case of young adults) should also be excluded.

7. These proposals also appear to be based on the assumption that the public associate justice with punishment. In his introduction to the government’s response to the consultation, the Secretary of State for Justice writes, "I share public concern that offenders given community sentences often feel they are getting away with it, slapped on the wrist rather than properly punished." The public have limited information about the effectiveness of punishment and the popular press often reinforce a lazy view that prison is ‘tough’ and community sentences are ‘soft’. Research published in 2011 by the Howard League on short sentences, No winners: The reality of short term prison sentences, found that many prisoners preferred short prison sentences over community sentences because they found the latter more challenging.

8. The Howard League is alarmed that the evidence produced by the government and cited in its own impact assessment, published alongside the original consultation document, highlights concerns around introducing a mandatory punitive element to community orders. Not only is there a lack of evidence that punishment for punishment’s sake works, but the likelihood that rehabilitative requirements will be sacrificed means that risk factors may not be addressed and as a consequence the proposed changes may negatively impact on reoffending. The government’s impact assessment states:

Given a limit on the overall level of resources available for probation services, delivering a clear punitive element to every community order may cause the primarily rehabilitative requirements to be substituted for primarily punitive ones…There is a risk that some of the rehabilitative benefits of current Community Orders could be lost with adverse implications for the re-offending rate of those offenders subject to community orders.

9. A number of Peers raised concerns about this part of the Bill during Report Stage in the Lords. Crossbench Peer Lord Ramsbotham tabled an amendment to scrap part one altogether, thereby removing proposals to introduce a punitive element to community orders. A variety of other amendments were also tabled by Peers particularly around the use of the word ‘exceptional’ to describe circumstances in which it would be unjust to impose a punitive element in a community sentence. Lord Ramsbotham pushed his amendment to scrap part one to a vote which was lost.

10. The Howard League is supportive of amendments which seek to remove unnecessary fetters on the discretion of sentencers. In particular we welcome amendment 87, tabled by the Labour Party, which seeks to leave out the word ‘exceptional’ from this part of this Bill.

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

11. The government plans to legislate so that restorative justice (RJ) will be used more at the pre-sentence stage, legislating to allow courts to defer sentencing to allow for a restorative intervention. 

12. The Howard League supports the government’s statement that ‘access to RJ should be available for all victims at all stages of the justice process, so that, where appropriate, they can opt in at a time that is right for them.’ But the Howard League has concerns about the statement in the government’s response to the consultation that:

The offender’s participation in RJ activity will not automatically affect the sentence that he receives. It will be for the court to decide whether or not the offender’s participation in RJ will affect the sentence that is imposed. The sentence imposed will continue to reflect the seriousness of the offence. RJ will not lead to offenders escaping punishment.

13. For less serious offences, the Howard League would like to see sentencers being positively encouraged to take no further action if RJ successfully takes place at the pre-sentence stage. We recognise however that RJ can also be used very productively as part of the response to more serious offending and that this would still sit alongside a conventional criminal justice response. In many cases RJ, when done well, is a more appropriate and proportionate response to crime compared to a punitive one. Many victims who have been involved in RJ say they are impressed by the process and feel they have benefitted from engaging in RJ schemes. If the person being sentenced feels their treatment is disproportionate or unfair, they will be less likely to engage with probation and as a result not address any risks of future reoffending. There is no evidence that punishment for punishments sake will reduce reoffending rates.

14. MPs who want more information about the amendments tabled to this part of the Bill should refer to the briefing provided by the Restorative Justice Council.

Part 4: Electronic monitoring of offenders

15. The government plans to:

legislate to give courts the power to impose location monitoring as part of a community order by extending the current electronic monitoring requirement. This will allow courts to make use of new technology to track offenders as part of their sentence (rather than just monitoring compliance with other requirements), for the purposes of deterring crime, public protection and crime detection.

16. The Howard League recognises the limited role that electronic monitoring can play in supporting a community sentence where it is used as part of a wider programme that supports the person to make positive changes to their behaviour. The Choices and Consequences (C2) programme in Hertfordshire won a Howard League Community Programme award in 2011. The programme involved an intensive tailor-made package for prolific offenders and utilised electronic tagging for those who volunteer to be monitored in order to demonstrate that their behaviour is changing for the better.

17. However the Howard League has serious concerns about proposals which would see ‘creative use of electronic monitoring’ to track offenders. The proposals to use new GPS technology to track offenders for the purpose of preventing reoffending would be a significant departure from current practice. There are clear civil liberty concerns stemming from this proposal that MPs will want to consider.

18. The Howard League is also concerned that over-reliance on technology will come at the expense of tailored support with staff contact time and interventions that help people to change their lives. Intensive and tailored supervision with skilled probation staff is a far more effective means of tackling offending than putting people on a 24 hour watch without addressing their behaviour.

19. We would also like to see a clinical assessment of electronic tagging. The budget for tagging offenders on community sentences is currently £120 million despite the fact that there is very little evidence to suggest that electronic tagging cuts crime. If the government wants to invest in what works, rather than what looks tough, a more detailed analysis of the merits of electronic tagging needs to take place.

Part 7: Provision for female offenders

20. The Howard League is disappointed that the government is seeking to repeal this part of the Bill, which requires contracts made with probation trusts to make appropriate provision for the delivery of services to female offenders. This was inserted into the Bill at third reading following a successful amendment by crossbench Peer and Chairman of the Prison Reform Trust Lord Woolf. The amendment was backed by 187 votes to 159.

21. The recent appointment of Helen Grant MP as Minister with particular responsibility for women in the criminal justice system is to be welcomed as is the government’s intention to publish a strategy for women. Part 7 seeks to complement these positive steps.

22. The Howard League administers the All Party Parliamentary Group (APPG) on Women in the Penal System which is chaired by Baroness Corston. This proposal builds on Baroness Corston’s 2007 report on vulnerable women in the criminal justice system. With relatively few women being given community sentences there is a danger that without this requirement provision for women could be overlooked by probation trusts. Thanks to the Howard League’s Community Programme Awards we know that there is some excellent work taking place in women’s centres across the country, but the future of such centres is uncertain. We urge MPs to support this part of the Bill to ensure these important services are protected.

23. In particular we support amendment 93, tabled by the Labour Party, which would require the Secretary of State to publish a strategy for the delivery of appropriate and effective services for female offenders in the criminal justice system each year.

New Clause Seven

24. David Burrowes MP has tabled this new clause which would bring Youth Courts into the remit of sections 37 and 47 of the Children’s Act 1989.

25. The Howard League’s legal team represents children and young people in the criminal justice system and is the only frontline legal team specialising in the legal rights and entitlements of young people who are locked up. For more than ten years our lawyers have provided free, independent and confidential advice, assistance and representation on a wide range of issues to young people aged under 21. With this significant experience of the youth justice system the Howard League welcomes this proposed new clause.

26. If successful, this new clause will provide the Youth Court with powers to require a local authority to carry out a full assessment of a child’s needs whose welfare is at risk and thereby ensure that a proper package of support is in place at the earliest opportunity. Although such provisions already exist in the Children Act and through the Family Court, anecdotal evidence suggest s that local authorities may not always adequately assess the circums tances of a case. This proposal will provide the Youth Court with greater powers to compel a local authority to ensure the welfare of a child and their families are safeguarded.

27. This new clause provides for the civil and criminal courts to be more closely aligned , allowing for a more unified approach and potentially saving time and money and disruption to the life of the child.

28. This proposal may also provide for diversion of the most vulnerable children from the criminal justice system. The Youth Court will be properly informed of the circumstances of the case and be able to assess whether the matter concerns that of the welfare of the child, or is a criminal issue.

29. This new clause also compliments the remand provisions brought into effect through the Legal Aid, Sentencing and Punishment of Offenders Act 2012. If remanded into local authority accommodation under the new remand provisions, the local authority may not investigate the full circumstances of the case because the young person is already thought to be within the system. Through this amendment, the Youth Court would be able to direct a full investigation providing for a more holistic package of support and earlier assessment of need.

February 2013

Prepared 6th February 2013