Criminal Justice and Courts Bill

Written evidence submitted by The Howard League for Penal Reform (CJC 02)

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 .

1. Introduction

1.1 The Criminal Justice and Courts Bill attempts to tackle a myriad of tenuously connected issues in the criminal justice system and must be seen in the context of the forthcoming general election. The majority of changes proposed in the Bill are unnecessary and seek to reduce professional discretion and lengthen a relatively small number of custodial sentences without discernible cause. Described by the Lord Chancellor as a "tough package of sentencing measures", the Bill as a whole is reminiscent of the kind of legislative activism seen under the last government, which has been much criticised by the Coalition parties.

1.2 There are particular areas of the Bill where the Howard League for Penal Reform believes the changes could be deeply damaging to public safety and the integrity of the criminal justice system: (1) the proposed changes to judicial review, (2) changes to the parole system and increased responsibilities placed on an already overstretched Parole Board, (3) plans to build the largest children’s prison in Europe, termed a ‘Secure College’, and (4) the proposal to use force against children in custody to enforce ‘good order and discipline’, a practice that the courts have deemed illegal and inquests have found as a contributory factor to the deaths of children in custody.

1.3 There are also a concerning number of areas where the Bill grants excessive additional powers to the Lord Chancellor, to exercise as a carte blanche under secondary legislation. These changes are unspecified, uncosted and in some cases could allow the Lord Chancellor to make substantial changes affecting people’s liberty and access to justice. For instance, the Lord Chancellor proposes to authorise himself to:

1.3.1 Change the test for release that the independent Parole Board should apply in determining release (Clause 8)

1.3.2 Mandate that certain groups of people, that he shall determine at a later date, should be subject to mandatory GPS tracking (Clause 6, subsection 3)

1.3.3 Set out rules concerning what the Court must take into account when deciding something is in the public interest for the purpose of protecting costs (Clause 54, subsection 9)

2. Changes to judicial review

2.1 Changes to judicial review are a removal of a final safety net left by legal aid cuts

2.1.1 The changes to Judicial Review in this Bill cannot be viewed in isolation. Legal aid has been cut to the bone over the past five years and much of the work by lawyers that would have prevented judicial reviews being necessary is no longer available. For instance, in the field of prison law, the Howard League has helped hundreds of children to secure the accommodation and support they need to turn their backs on crime simply by writing letters to local authorities, reminding them of their statutory duties. This is no longer funded under legal aid (at a cost of £220 per case), so situations are likely to deteriorate to a point where only the safety net of a judicial review remains.

2.1.2 On the same day the Bill was introduced, the government announced it would put forward a Statutory Instrument to impose financial constraints on lawyers bringing judicial review cases, so they would have no certainty of being paid unless and until the High Court grants permission, i.e. that the case is arguable and should proceed. The majority of cases are resolved by agreement before that stage is reached. It will be difficult or impossible for lawyers to take the risk of weeks of work without any certainty of payment. As such, these changes would have a chilling effect on access to the High Court, especially for vulnerable people, who are the victims of illegal state action.

2.2 Changes to rules on intervenors undermine public interest

2.2.1 Clause 53 of the Bill makes sweeping changes to neutral interventions in judicial review cases. It is an established principle that the loser pays the winner's costs. However, when experts receive permission to address the court to provide argument or evidence, they are doing so neutrally to assist the court by adding value to the case. As such, they are unable to win or lose in a way that a party might do so – and are almost always unable to recoup their costs. These proposals reinforce that position, presenting a statutory bar on intervenors recouping costs. Moreover, other than in ‘exceptional circumstances’, the court will be forced to make the intervenor pay the costs of any additional legal work undertaken to address matters arising from the intervention, in the likely event a party requests it. It also creates perverse incentives: the more useful, thorough and pertinent the intervention, the more work is required to answer it, leading to a greater costs risk to the intervenor. Last year, the Howard League intervened in a successful case brought by Just For Kids Law, which established the right of 17-year-olds to see an ‘appropriate adult’ on being taken into police custody, following the deaths of two 17-year-olds who were denied this right. In this case, the court recognised that many of the important arguments emerged from the intervenors’ submissions. It would have been perverse for the charity to be saddled with the costs of the government in responding to our legitimate and expert legal argument that was designed to aid the court in its decision making.

2.2.2 These changes to the cost rules on interventions go directly against the advice of senior judiciary in their response to the consultation. [1] They explained that the court can already impose cost orders against third parties, but the fact that such orders are made rarely shows that the court ‘benefits from hearing from third parties’. Indeed, part 44 of the Civil Procedure Rules provides the court with a very broad discretion to award costs orders against parties to judicial review proceedings. The senior judiciary has warned that ‘caution should be adopted in relation to any change which may discourage interventions which are of benefit to the court.’

2.2.3 Given that the government took on the advice of the judiciary not to bar third sector organisations from bringing claims by changing the rules on standing, the decision to introduce onerous cost consequences for those seeking merely to assist the court defies logic.

2.3 Making judicial reviews in the public interest unaffordable

2.3.1 Clauses 54, 55 and 56 amend the circumstances in which cost-capping orders can be made in judicial review, which can only be awarded in cases where the court agrees that the subject matter is of 'general public importance', the public interest requires the issue to be resolved and judicial review is appropriate. These clauses introduce wide-ranging restrictions on the court's ability to grant these orders. First, the court will be prohibited from granting these orders at the early stage of this case, before permission to argue that case has been granted. This deprives less wealthy individuals and organisations from accessing the court, for fear that the cost risk at this stage will be too great. Second, these clauses outline the specific factors the court must consider and, alarmingly, clause 54 (9) authorises the Lord Chancellor to add to the list of factors to court must consider prior to granting a Protective Cost Order. It is no coincidence that the Lord Chancellor is often the defendant against whom claimants are seeking cost protection.

2.4 Forcing courts to second-guess the impact of a lawful decision which never took place

2.4.1 Clause 50 represents an attack on the fundamental basis of administrative law: that the legality of the process by which a decision was reached is open to challenge. This clause will prevent the court from overturning an illegal decision, or making other orders to reflect this illegality, if it is believed to be highly likely that the result of the decisio n being made in a legal manner ‘ would not hav e been substantially different’. This reduces the current test from one of inevitability to requiring the court to engage in the impossible exercise of second-guessing the results of a lawful decision. The Howard League believes this proposal is wrong in principle.

3. Changes to parole

3.1 The Parole Board is already overstretched and under-resourced

3.1.1 The Parole Board is currently stretched to breaking point. A Supreme Court ruling in October 2013 (Osborn, Booth and Reilly v The Parole Board) entitled prisoners to face-to-face hearings, meaning the Parole Board anticipates thousands more oral rather than paper-based hearings. This has exposed its lack of manpower after staff numbers have been reduced by nearly one in five in recent years.

3.1.2 On 17 December 2013, Claire Bassett, Chief Executive of the Parole Board, told the Justice Committee that ‘Last year we had about 4,500 oral hearings. We are estimating that we could have to have upwards of 12,000 or 14,000 in the future because, essentially, the judgment has removed from us the ability to insist on paper decisions in the vast majority of our cases.’

3.2 Additional unfunded burdens on the Parole Board

3.2.1 The proposals to end automatic early release for people who have committed certain offences will result in the Secretary of State sending extra cases to the Parole Board where he believes that the prisoner who has been recalled is unlikely to c omply with licence conditions. These, and other proposed changes, will add further to the burdens on the Parole Board .

3.2.2 The Howard League for Penal Reform recommends that the opportunity of this legislation is taken to put the Parole Board, currently a non-departmental public body, on a statutory footing. This would strengthen its independence and give it access to increased resources to deal with its increased workload following the Osborn judgment and the passage of this Bill.

3.3 Changes to the test for release could leave the vulnerable languishing in prison

3.3.1 Clauses 7 and 8 affect the arrangements for the re-release of people who have been called back to custody during their licence period. Two thirds of Parole Board cases involve decisions about whether prisoners serving fixed term sentences can be released again on licence from prison following a return to prison. Clause 8 empowers the Lord Chancellor to change the test for release that the Parole Board must apply at any time of his choosing through secondary legislation. The current test for release is focused squarely on the risk of harm to the public and only allows the Parole Board to release a prisoner if it is 'satisfied that it is no longer necessary for the prisoner to be detained to protect the public from serious harm'.

3.3.2 Clause 7 will dramatically change to the focus of the circumstances in which a prisoner can be re-released. Rather than focusing squarely on the likelihood of serious harm to the public, the Lord Chancellor and Parole Board will be required to also focus on how likely it is that a prisoner will stick to their licence conditions. The Lord Chancellor will be required to send prisoners that are currently automatically re-released after 28 days to the Parole Board if he thinks they are highly unlikely to comply with a licence condition, irrespective of whether such a breach would actually present a threat to the public. This will further increase the burden on the Parole Board. In all recall cases of fixed term prisoners, the Parole Board will also be required to consider the likelihood of compliance, detracting from its current focus of risk of harm and ensnaring the board in the impossible task of second guessing how life will pan out for the prisoner on licence. It is hard to see how Parole Board members could apply this test consistently.

3.3.3 This new focus on the likelihood of breaching conditions will disproportionately affect those with complex licence conditions that do not allow for the realities of day-to-day life, such as being required to notify someone of your whereabouts five times a day. In particular, it will affect those prisoners who are deemed to be less likely to be able to comply, such as children, the mentally ill and people with learning disabilities.

3.3.4 There is a very real risk that these changes will lead to a significant increase in the number of people in prison, who live chaotic lives and are some of the most difficult to manage, but may not pose a risk of serious harm to the public.

3.3.5 The Bill also changes the powers of the Parole Board in determinate cases. Currently, the Parole Board has the power to order release at a fixed date in the future. This will be replaced by a power to direct release as soon as conditions are met. There is a real risk that this will result in a large number of prisoners languishing in jail while statutory agencies fail to meet conditions for release. In complex cases, there will be a perverse incentive for local authorities and other agencies responsible for putting together a rehabilitation package not to do so in a timely fashion, leaving the Ministry of Justice and the taxpayer to foot the bill for an extended period in custody.

4. The ‘Secure College’, Europe’s largest children’s prison

4.1 Undermining four years of progress

4.1.1 The government should be praised for its record in reducing the numbers of children in custody, which have fallen from 2,136 children in May 2010 to 1,168 in December 2013. This, coupled with the refreshing approach of police forces across England and Wales to reduce the number of unnecessary child arrests, has allowed a renewed focus on crime prevention and alternatives to custody. Youth justice reinvestment pilots in Manchester and inner London boroughs have also shown how investment in diversion rather than criminal justice can yield benefits in terms of public safety.

4.1.2 The government should continue this strategy to reduce the number of children in prison, addressing in particular the high number of children held on remand, the majority of whom do not go on to receive a custodial sentence and the excessive number of children in prison for non-compliance. For the small fraction of the existing children’s prison population who truly require custody, the network of small, localised Secure Children’s Homes represents the best model for success. These homes put the welfare of the child first and provide an education that offers a wide curriculum. In addition, given that almost all children in custody have been excluded from school, more support should be given to these children long before they come into contact with the criminal justice system. Deploying the money intended for a Secure College on Secure Children’s Homes and crime prevention would produce significantly more effective outcomes for the taxpayer and children.

4.2 Secure Colleges reinvent a broken wheel

4.2.1 Part 2 of the Bill introduces the ‘Secure College’ as a form of imprisonment for children in England, with the first such college or ‘fortified school’ to be built at Glen Parva in Leicestershire. This ‘college’, presented as ‘putting education at the heart of custody’, is intended to be a pathfinder for what will eventually become the main custodial setting for children.

4.2.2 The government is right to focus on the staggeringly high reoffending rates for children who leave custody, as well as their poor educational performance. However, their Secure College strategy differs in no meaningful way from the failed Secure Training Centres, launched two decades ago, other than in the scale of the institution (the Secure College will be more than six times larger) and spend per inmate (less than half that of STCs).

4.2.3 There is a very real danger that sentencers will now see youth custody as entailing positive educational outcomes, encouraging them to sentence children to schooling. The construction of Secure Training Centres in the late 1990s, along with the introduction of the Detention and Training Order, provides a cautionary tale on the effect of such an approach: the promise of training and education saw the number of children in custody rise dramatically, so that by 2007 over 3,000 children were behind bars.

4.2.4 Secure Training Centres failed to reduce reoffending because, like the Secure College plan, they fail to take account of the realities of why children offend. Children in prison have a range of complex needs, including mental health problems, learning difficulties, self-harm, and histories of abuse and neglect. Low levels of education must be seen as symptoms of these underlying problems. Constructing vast custodial institutions that do not have welfare at their heart will always fail to reduce outcomes for vulnerable children and will inevitably be centres of violence and self-harm.

4.3 A lack of realism

4.3.1 The government plans to fund Secure College places at a similar level to existing Young Offender Institutions. These existing prisons are unable to meet even their derisory target of 15 hours of education per week, averaging just 12 hours. As such, the government’s assertions that the Secure College will be able to offer specialist provision seem wholly unrealistic, given that nothing close to it is achieved at similar institutions.

4.3.2 Further claims that the size of the institution will make it easier to offer a broad curriculum fly in the face of all evidence. Secure Children’s Homes are able to offer this support already with fewer than 30 children in their care, while far larger Young Offenders’ Institutions are unable to do so. Whatever their intentions, large custodial institutions for troubled children always end up focusing on maintaining order rather than any other outcomes.

4.3.3 These plans for renewed focus on education, without any additional money available, come against a backdrop of significant staff cuts across the custodial estate, which has led to falls in opportunities for education and training. This is evident from almost every report from Her Majesty’s Chief Inspector of Prisons in both the adult and youth estate.

4.3.4 The plans are not clear as to whether very young girls will be held alongside boys. Secure Children’s Homes are able to care for girls safely because they are intensively staffed whereas a massive institution with mixed girls and boys would put girls at risk.

5. Use of force on children in Secure Colleges

5.1 Paragraphs 8 and 10 of Schedule 4 of the Bill make provision for the use of restraint on children in Secure Colleges. Included within this, is the ability to use restraint to enforce 'good order and discipline', which allows officers to use force against children simply for not doing as they are told, in addition to actions which are genuinely harmful to themselves or others.

5.2 Using force against a child in the care of the state is a very serious matter that can have lasting consequences. As Lord Carlile has argued, in any other setting an adult or groups of adults assaulting a child would lead to a child protection inquiry. [2] As such, force must only be used where the state can justify its absolute necessity, and that is why the current legal position for children in Secure Training Centres is that restraint cannot be used to make children do as instructed.

5.3 The inclusion of this provision in primary legislation opens the door to authorising restraint for good order and discipline in Secure Colleges. The Prisons Minister has insisted that this will not be the case, as the Secure College rules will not allow for it, but there is no guarantee this will be the case or justification for its inclusion in the Bill.

5.4 As Mr Justice Blake observed in his judgment on the need for a second inquest into the death of Adam Rickwood, a 14-year-old boy who took his own life following a restraint for good order and discipline, 'hurting children as a disciplinary measure is a controversial subject in any sphere of social life, but especially in newly privatised training centres to be established for the youngest class of offenders.' The Howard League believes a Bill that paves the way for this kind of risk is unacceptable.

5.5 Paragraphs 8 and 10 of Schedule 4, which appear to allow for restraint to make children do as they are told, mirror the provisions of a 1994 Act. These provisions were linked to Secure Training Centre rules, introduced by secondary legislation, as is the intention with the new Secure College rules. These rules said the opposite of the primary legislation and prohibited the use of force for disciplinary reasons. [3] When the government tried to change the rules to allow restraint for ‘good order and discipline’ in STCs, the Court of Appeal struck them down as unlawful, in light of Article 3 of the European Convention on Human Rights. The new legislation therefore risks making the same mistake by leaving it to the Lord Chancellor to introduce the Secure College rules which could purport to allow restraint for discipline.

5.6 The inclusion of restraint for good order and discipline is wholly unnecessary and creates an ambiguous situation where the government's stated intention is the opposite of the letter of the law. The Youth Justice Board’s review into the deaths of children in custody, released on 20 February 2014, included a previously unpublished letter from the coroner presiding over the first inquest into the death of Adam Rickwood, highlighting the dangers of such a lack of legislative clarity:

An urgent review should be undertaken to clarify the inter-relationship between the Criminal Justice and Public Order Act 1994 (s9), the STC Rules issued thereunder and the Directors Rules to avoid any confusion whatsoever. It must be seen as essential that there must be no ambiguity in anyone’s mind, young person, staff, management or those in the YJB or indeed government as to when the use of restraint or force to maintain good order and discipline or for compliance reasons is authorised.

March 2014

Prepared 12th March 2014