Criminal Justice and Courts Bill

Written evidence submitted by The Prison Reform Trust (CJC 05)

The Prison Reform Trust is an independent UK charity working to create a just, humane and effective prison 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. We welcome the opportunity to make a submission to the consultation.


The Criminal Justice and Courts Bill is the fourth Ministry of Justice-led criminal justice bill introduced by the Coalition Government. The Prison Reform Trust is concerned that many of the provisions of the Bill are unnecessary and will increase the size of the prison population. They will raise public costs and add significantly to the work of criminal justice agencies in general, and the Parole Board in particular, at a time when resources and budgets are already overstretched. Many of the provisions involve significant transfers of powers to the Secretary of State, limiting the discretion of operational managers and reducing scope for effective Parliamentary scrutiny.

Plans for secure colleges could drive up the numbers of children in custody following a welcome period of decline both in youth imprisonment and youth crime. While education is vital, provision for children must take account of mental health needs, learning disabilities and difficulties, addictions and childhood abuse or neglect. This requires cooperation across government and not just another criminal justice-led response to tackling entrenched social problems.

Our submission focuses on key areas of concern in the Bill including:

Part 1

· Dangerous offenders and other offenders of particular concern (Clauses 1-5 and Schedule 1)

· Mandatory electronic monitoring (Clause 6)

· Release test for recalled prisoners (Clauses 7 and 8)

· Offence of remaining unlawfully at large (Clauses 10 and 11)

· Restrictions on the use of simple cautions (Clauses 14 and 15)

· Possession of extreme pornographic images (Clause 16)

Part 2

· Detention of young offenders (Clauses 17-19)

Part 3

· Costs of criminal courts (Clauses 29 and 30)

Part 4

· Likelihood of substantially different outcome for applicant (Clause 50)

Part 1

Dangerous offenders and other offenders of particular concern (Clauses 1-5 and Schedule 1)

1. It is unclear why these provisions are necessary or whether the government has taken proper account of the impact of the proposals on under resourced criminal justice agencies. There is already provision for courts to impose long determinate and indeterminate sentences on people who commit the most serious offences. The Prison Reform Trust is concerned that these proposals will increase the size of the prison population and add significantly to the work of the Parole Board at a time when resources and budgets are already overstretched.

2. Clause 4 amends existing release arrangements for people serving an Extended Determinate Sentence (EDS). People will no longer be entitled to automatic release at the two-thirds point, but will require the Parole Board to direct release in order to be released into the community on licence before the completion of their sentence. The Extended Determinate Sentence has only recently been enacted following its creation in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. It is surprising that the government has chosen to make amendments to such a new sentence, and ones that could have a significant impact on both the Parole Board and National Offender Management Service.

3. We are concerned that the proposals could undermine the very purpose of the EDS - to provide people who have committed serious offences with an extended period of supervision in the community to better aid their rehabilitation. As Elfyn Llwyd MP said during the Second Reading debate:

"Extended determinate sentences from the outset increased the minimum tariff a person was required to spend in custody from half of their sentence to two thirds. By stipulating that offenders will also have to satisfy the Parole Board before being considered for release, the amount of time that is available for supervision and rehabilitation back into the community is further decreased." [1]

The Committee will want to be sure that the changes to the EDS are proportionate and necessary and do not undermine the purpose of the sentence.

4. Clause 5 and Schedule 1 introduce a new sentence for adults convicted of certain listed terrorism-related and sexual offences as well as existing Schedule 18A offences included in the Criminal Justice Act 2003. People convicted of these offences will be required to apply to the Parole Board in order to secure release from custody before the end of their sentence, rather than being automatically released at the halfway point. If no decision to release is taken, they will remain in prison until the end of their custodial term and required to have an additional mandatory 12 months of supervision upon release.

5. The government has estimated in its Impact Assessment that these proposals (Clauses 1-5 and Schedule 1) will result in an increase in the prison population of around 1,000 places, in the long run, with the full impact reached by 2030, with no increase in this spending review period, an increase of fewer than 10 prison places in the next Spending Round period (ending March 2016), and an increase of around 300 prison places by March 2020. [2]

6. In addition it anticipates an increase of around 1,100 Parole Board hearings per year, in the long run, with the full impact reached by 2030. With no increase in Parole Board hearings in this Spending Review period (ending March 2015), there would be an increase of less than 50 hearings per year in the next Spending Round period (ending March 2016), and an increase of around 400 hearings per year by March 2020.

7. This current assessment underplays the potential impact of these changes on the Parole Board. MPs will want to seek clarification from the government on the calculation of these figures. It is worth noting that the introduction of the Indeterminate Sentence for Public Protection (IPP) saw a significant underestimate by the Ministry of Justice of the number of people likely to receive the sentence, and the Parole Board is still dealing with the consequences of this. When the legislation introducing the IPP sentence was debated in Parliament the government estimated that the sentence would increase the prison population by 900 places. At the end of June 2013 there were 5,620 people serving an IPP sentence in prison with 3,549 held beyond their tariff expiry date. [3]

8. As the Chair and Chief Executive of the Parole Board, Sir David Calvert-Smith and Claire Bassett, highlighted at a recent meeting of the All Party Parliamentary Penal Affairs Group, the Parole Board continues to face challenges with decreasing budgets, as do many government departments. [4] However the Board is also faced with increasing pressures on its workload as it tries to work through their backlog of cases, with IPP sentenced prisoners accounting for a significant proportion of these. As of August 2013 the backlog stood at 1,352, with IPP prisoners accounting for 61% of indeterminate review cases. [5]

9. The government anticipates that this backlog will be dealt with by the time these new cases need to be heard by the Parole Board, and so existing resources will be sufficient. We remain concerned that this does not sufficiently consider the additional impact of the recent Osborn judgement.

10. The Osborn, Booth & Reilly Supreme Court judgement means that the Parole Board will be required to hold more oral hearings, and the effects are already starting to be felt. Prior to the judgment the number of indeterminate review cases progressing to oral hearing following the first paper review was usually around 65% (approx. 298 cases per month). In December this rose to 89% (391 cases), and there was also a rise in determinate recall cases resulting in an additional 90 cases being referred for oral hearing. [6]

11. The Parole Board has acknowledged that if this trend continues it is likely to see delays of at least three months over and above the usual timeframe for cases waiting to secure an oral hearing date. [7] Claire Bassett, the Parole Board’s chief executive, told MPs in evidence to the Justice Committee in December 2013 that the Osborne ruling has "huge" implications and will lead to the number of oral hearings increasing from about 4,500 a year to 12,000 to 14,000. [8]  

12. This increase in workload comes at a time when Parole Board staff numbers have been reduced by nearly one in five. Many of those staff supported 232 Parole Board members who are paid per hearing and include psychiatrists and psychologists. To cope with the sudden surge of oral hearings, many are now taking place by video link from the Parole Board’s Grenadier House headquarters in London to prisons around the country. However, according to recent reports, since the introduction of the video link, problems of reliability have dogged the system. [9]

Given the existing backlog of cases and the demands of meeting the requirements of the Osborn judgment, we are concerned that the government has not taken account of the potential impact of these provisions on the workload of the Parole Board. The Committee will want to seek assurances that these provisions are necessary and that the prison service and Parole Board have sufficient resources to meet the demands placed upon them.

Mandatory electronic monitoring (Clause 6)

13. Clause 6 introduces a GPS electronic monitoring condition for people released from custody on licence. Whilst electronic monitoring can be an effective tool when used appropriately, particularly when coupled with good quality supervision, we are concerned that subsection 3 gives new powers to the Secretary of State to make monitoring mandatory for certain groups of offenders, either by type of offence or type of sentence, limiting practitioner discretion. Furthermore, these powers can be exercised by order, limiting the role of Parliament in scrutinising who will be subject to mandatory monitoring.

14. Whilst there appear to be mechanisms to safeguard against inappropriate use, these are currently vague with only illustrative examples used in the explanatory notes. [10]

"It also allows the Secretary of State to make provision by reference to whether a person specified in the order is satisfied of a matter. For example, it might refer to cases in which the Secretary of State is satisfied that the offender has a physical or mental health problem which renders the offender unsuitable for the licence condition, or cases in which a person is satisfied that it is impossible to make arrangements for the offender to recharge the battery in the tag."

15. During the Second Reading debate, Nick Herbert MP and Guy Opperman MP both encouraged greater local involvement and accountability, including Police and Crime Commissioners, in the use of new technology. This runs counter to the centralising of power within the Ministry of Justice and the Secretary of State. [11]

We are concerned that this clause transfers a significant amount of power to the Secretary of State, allowing changes to be made without affording sufficient Parliamentary scrutiny. A blanket approach which limits the discretion of operational managers and practitioners could lead to the inappropriate use of electronic monitoring and curfews, for instance, on offenders who may be at risk of committing domestic violence. The Committee will want to ensure that sufficient safeguards are in place and that flexibility is maintained to operate on a case by case basis.

Release test for recalled prisoners (Clauses 7 and 8)

16. Clause 7 introduces a new provision which would allow for recalled determinate sentence prisoners to serve the remainder of their sentence in custody (a standard recall), rather than for a fixed period of 28 days with automatic release (a fixed term recall) as currently exists, if it appears to the Secretary of State that the person is highly likely to breach a condition on their licence. It introduces a new statutory re-release test for recalled determinate sentence prisoners to be conducted by the Parole Board. They will make a decision for release based on their risk to the public, and whether there is a likelihood of subsequent breach.

We are concerned that the proposals place too much emphasis on the likelihood of breach at the expense of ensuring effective supervision. This could have a disproportionate impact on offenders with learning disabilities and mental health needs who often need greater help and support to comply with licence conditions. The Committee will want to ensure sufficient emphasis on effective supervision is built into the new release test.

17. Furthermore, as with clauses 4 and 5, we are concerned about the implications this could have for an already overstretched and under-resourced Parole Board through increased workload, as well as for NOMS with additional population pressures. The current Impact Assessment suggests that these changes will have a minimal impact on both these areas, but expectations seem unrealistically low. It estimates that this policy will have an impact on an additional 75 offenders per year and require up to an additional 50 prison places at a cost of around £1.5m per annum.

18. The recall population grew rapidly between 1993 and 2012, accounting for 13% of the overall increase in the prison population. This reflected a higher recall rate caused by changes to the law making it easier to recall prisoners, and changes introduced in the Criminal Justice Act 2003 which lengthened the licence period for most offenders. [12]

The Offender Rehabilitation Bill currently before Parliament will introduce 12 month mandatory statutory supervision for short sentenced prisoners. The updated impact assessment of the Bill estimates that the changes will lead to around 13,000 offenders being recalled or committed to custody per year, resulting in a prison place increase of around 600 places. The impact assessment of the Criminal Justice and Courts Bill assumes no impact from the Offender Rehabilitation Bill, despite the fact that short sentenced prisoners recalled on licence would seem to be included in the new arrangements. The Committee will want to seek clarification on how the combined impact of the Offender Rehabilitation Bill and Criminal Justice and Courts Bill is anticipated to affect so few people.

19. Clause 8 gives the Secretary of State an additional power to change the release test for recalled prisoners serving determinate sentences, subject to the affirmative resolution procedure. This proposed mechanism affords too much power to the Secretary of State. As Elfyn Llwyd MP said during the second reading debate:

"I am worried that the Government are proposing to use secondary legislation to implement such a significant change, and I hope that they will reconsider this provision ahead of the Bill’s Committee stage." [13]

Primary legislation and not statutory instruments remain the most appropriate mechanism for such measures.

Offence of remaining unlawfully at large (Clauses 10 and 11)

20. Clauses 10 and 11 introduce a new statutory offence of remaining unlawfully at large following recall to custody and whilst on release on temporary licence. The offence is triable either way and can be tried in either the magistrates’ or Crown courts and could be sentenced to a period of imprisonment of less than two years, a fine, or both in the Crown Court; or a period of less than a year, a fine, or both in the magistrates’ court.

We are concerned that there is currently an insufficient distinction between those who wilfully abscond to evade detection, and those who fail to report as they are unaware they have been recalled, either because they have no fixed abode or do not understand due to a learning disability or difficulty. It would be helpful for this distinction in regard to deliberate intent, or lack of it, to be made within legislation to ensure that people are not prosecuted inappropriately.

21. This new offence could act as a driver to custody, putting pressure on an already challenging environment for the prison service. People subject to recall proceedings are already expected to spend an additional period in custody. By prosecuting them for an additional offence it is unclear what the government is hoping to achieve.

22. Furthermore it could lead to people being imprisoned for a considerable period due to technical breach of licence conditions, particularly those with learning disabilities who may not fully understand what is expected of them. Between 20 and 30% of offenders are estimated to have a learning disability or difficulty which interferes with their ability to cope with the criminal justice system. [14] However, provision of services for this group is patchy and people are often let down by a failure to recognise and meet their needs. The government’s commitment to the roll out of a national liaison and diversion service in police stations and courts has been delayed from 2014 to 2017, and resources reduced.

23. While we welcome the government’s commitment in the House of Lords debate on the Offender Rehabilitation Bill to produce easy read version of licence conditions, vulnerable people caught up in the justice system often need greater help and support to meet the conditions of licence requirements which they may not fully understand or know how to comply with. For instance, many offenders with learning disabilities have problems with telling the time. This can lead to them missing appointments and being recalled for technical breach of their licence conditions.

24. Elfyn Llwyd MP raised his concerns over the lack of safeguards currently included in the Bill:

"Once again, the Government seem to have omitted any safeguard for vulnerable offenders with learning disabilities or mental health problems that would impair their ability to understand the full terms of their release. It would be beneficial if the Government inserted such a safeguard ahead of the Bill’s later stages. For example, it would be useful if the Bill made a distinction between offenders who abscond wilfully and those who do not report as a result of a misunderstanding or a miscommunication." [15]

The Committee will want to ensure that there are adequate safeguards in place so that vulnerable defendants are not set up to fail.

Restrictions on the use of simple cautions (Clauses 14 and 15)

25. Clause 14 introduces new restrictions on the police for the use of simple cautions. This includes limiting their use:

· for indictable only offences unless there are exceptional circumstances as well as approval from the Director of Public Prosecutions;

· in triable either way offences where the offence is specified in an order by the Secretary of State; and

· in summary and non-specified triable either way offences where the person has committed a similar offence in the last two years, unless there are exceptional circumstances.

26. Exceptional circumstances will be determined by a police officer of a rank to be determined by the Secretary of State. Reducing the discretion of the police and a further transfer of powers to the Secretary of State raises serious concerns. As ACPO lead on out-of-court-disposals, Chief Constable Lynne Owens said in response to the recent Out of Court Disposal review:

"It is important that there is room for officer discretion in any system to ensure the punishment is proportionate to the offence. I’m pleased that the Simple Cautions Review showed that where discretion is being used it is being done so properly, and in my view this is important to maintain." [16]

27. In the second reading debate on the bill, Sir Alan Beith MP, Chair of the Justice Committee, spoke on the importance of police discretion in the use of cautions. While he agreed that "magistrates were right to be concerned about the dangers of inconsistency around the country", he said "there is real value in police officers’ ability to exercise discretion in many circumstances, and that out-of-court disposals, as a broad group, open up numerous possibilities, including possibilities for simple restorative justice." He added: "I do not want us in any way to undermine the scope for out-of-traditional-court disposals in matters of this kind, because they may offer the best opportunity to enable young people, in particular, to move away from crime rather than becoming institutionalised into it." [17]

28. It is unclear why the government feels that it needs to restrict the discretion of trained professionals in deciding when a caution would be appropriate. Cautions provide an opportunity for early stage diversion and latest government figures show that reoffending rates for adults given a caution remains low, with only 18% reoffending within 12 months. [18]

29. Limiting discretion could have the unintended consequence of drawing people further into the criminal justice system unnecessarily. The government should learn from the experience of the youth reprimands and warnings scheme’s inbuilt escalator, which as the consultation acknowledged led to minor cases being drawn into more a formal court process.

30. There are many misconceptions surrounding Out of Court Disposals (OOCDs). They are often portrayed as a soft option and that people are being ‘let off’ after committing an offence, with political rhetoric and media coverage playing a significant part in fuelling this. However, Ministry of Justice data shows that use of OOCDs has already fallen significantly in recent years, with a 42% decrease between 2007 and 2012, with falls across all disposals and notably the use of cautions for indictable offences. [19]

Possession of extreme pornographic images (Clause 16)

31. Clause 16 adds a new offence to Part 5 of the Criminal Justice and Immigration Act 2008 to cover depictions of rape and other non-consensual sexual penetration following concerns raised by Rape Crisis South London to the Prime Minister last year. The new offence carries a maximum sentence of three years imprisonment.

32. We would urge the Committee to seek assurances from the government about the availability of treatment programmes for people convicted of sexual offences both in prison and the community. The I-SOTP (Internet Sex Offender Treatment Programme) does not take place in prison at the moment, despite the increased number of people given custodial sentences for internet based offending. The course is only available in the community and many probation areas run this course as part of community sentences. Provision of accredited sex offender treatment programmes is also very limited and currently under review. These programmes can reduce the risk of further offending and increase understanding of the impact of the offence on the victim.

33. As of July 2012 Sex Offender Treatment Programme (SOTP) courses were available in 21 prisons although people convicted of sex offences can be held in 120 prisons. This means that someone convicted of a sex offence has a one in six chance of being held in a prison where they can complete a programme. A recent National Audit Office report found shortcomings in the availability of SOTP courses. At HMP Whatton, "a centre of excellence for work with sex offenders", recorded waiting times stood at 14 months. The closure of HMP Shepton Mallet also led to a drop of 34 places, or 3 per cent, in the number of SOTP places across the system. MPs may also wish to note that NOMS has recently reduced its target for the number of completed SOTPs from 1,129 in 2010-11, to 886 in 2013-14. [20]

34. Not everyone will be eligible for the SOTP and low risk prisoners may be assessed as not needing to do a programme. There are currently no published figures of how many people have been assessed as suitable and are waiting for a place on a course. However, Prison Reform Trust’s advice and information service is often contacted by people waiting to be assessed for a course or for a place on a course. It is not uncommon to hear of waiting lists of 18 months for places on SOTP courses. This has been the subject of a number of legal challenges, where prisoners have taken successful cases about the failure of the Prison Service to provide courses and the impact this has had on their indefinite detention.

35. In the community CirclesUK provides support to people who have committed sexual offences with the aim of rehabilitating and reintegrating them back into society. [21] This close supervision of the ‘core member’, together with the support of statutory agencies, can help to reduce the feelings of isolation and emotional loneliness which can lead to an increased risk of reoffending. We believe that this approach allows people to take a greater sense of responsibility and reduce their level of risk in a safe and supportive way, and would like to see this model extended to more people who have committed sexual offences.

Part 2

Detention of young offenders (Clauses 17-19)

36. These clauses build on plans in the recent government consultation, Transforming Youth Custody, to introduce new secure colleges for children aged 12-17. Whilst we welcome the commitment to using education and skills provision in custody to encourage change and improve outcomes, a focus on education in the community, including reducing school exclusions, would also bring dividends. The Prison Reform Trust is concerned that an unintended consequence of the proposals to develop secure colleges could be an increase in custodial sentencing and greater use of longer sentences.

37. It will require cooperation and shared ownership across all areas of government, including education, health and local government, to ensure that this is not simply another criminal justice-led response to tackling entrenched social problems.

38. While education is vital, provision for children must take account of mental health needs, learning disabilities, addictions and childhood abuse or neglect. Small, local, intensively staffed units with a focus on taking responsibility, making amends to victims, gaining skills for employment and having a home to go to are safer and more effective than putting hundreds of teenagers together in over-large institutions.

39. Sir Alan Beith MP, Chair of the Justice Select Committee, raised a number of practical concerns during the second reading debate which will need to be addressed.

     "The first problem, which was identified by my Committee, is that the average length of custody is 79 days. That is not a period in which a programme of education can be developed, and greatly extending periods of custody is not part of the Government’s policy. Secondly, people going into custody do not do so neatly at the beginning of a term or an academic year; they go when the courts have sentenced them. It is difficult to provide a range of basic educational courses for people who go into custody for relatively short periods and at different times, and it involves paying a price. Some of those people will be much further away from their local communities than  they would have been if they had been dealt with under the previous system, especially if the college has been created at the expense of, for example, secure children’s homes. I should be very concerned if those ceased to be available because a college was being opened in a much more distant place.     " [22]

40. The recently published inspectorate report on HMYOI Hindley paints a vivid portrait of a prison where violence, self-harm and restraint by staff are commonplace. We are not convinced that the government’s vision of secure colleges, with its emphasis on ‘self-discipline’ and ‘responding with safe methods to control behaviour where necessary’, places sufficiently rigorous expectations on potential providers to deal proactively with a population characterised by the Chief Inspector as "very unhappy young people". [23]

41. We are concerned at plans for secure colleges to hold such a diverse age group, holding children as young as 12 with 17 year olds. We urge the government to limit the use of secure colleges for 15-17 year olds to ensure that the vulnerability of younger children is taken into account. The government should also clarify what provision it intends for girls as there is currently no mention of them in either the bill or explanatory notes.

42. The reduced provision of places in Secure Children’s Homes (SCHs) under the government’s proposals gives cause for concern. Currently, young and vulnerable children are detained in SCHs. However, 28 SCH beds have recently been decommissioned. The government is clear that secure colleges will accommodate some of the children currently detained in SCHs. [24] The government has made an ambiguous commitment to maintaining some SCH places for the most vulnerable. [25] The Committee will want to ensure that SCH places are still available for vulnerable children.

43. Subsection (4) sets out which sections of the Prison Act 1952 do not apply to children. Section 5, which outlines the functions of Her Majesty’s Chief Inspector of Prisons, is excluded. It is therefore unclear what inspection arrangements will be established for secure colleges. Given the development of joint inspections between HM Inspectorate of Prisons and OFSTED in the past year, and that secure colleges will be places of detention, it would make sense to build on these arrangement to ensure that they are subject to appropriate independent scrutiny.

44. Schedule 4 sets out the powers available to the Secretary of State in contracting out provision and running of secure colleges. Whilst secure college custody officers do not have the same powers as constables, as afforded to prison officers in the Prison Act 1952, it is a matter of great concern that section 10 authorises staff to use ‘reasonable force’ to ensure good order and discipline within the establishment. The courts have made clear that restraining a child for ‘good order and discipline’ is illegal and inquests into the deaths of children have shown that such methods have, in some cases, contributed to their deaths.

45. The UN Committee on the Rights of the Child, in its 2007 general comment on children’s rights in juvenile justice said:

"Restraint or force can be used only when the child poses an imminent threat of injury to him or herself or others, and only when all other means of control have been exhausted. The use of restraint or force, including physical, mechanical and medical restraints, should be under close and direct control of a medical and/or psychological professional. It must never be used as a means of punishment."

46. The Prison Reform Trust has been informed by officials that it is the intention for rules governing the secure colleges to outline cases in which restraint can be legitimately used. However, we are concerned that this does not provide adequate protection and that primary legislation remains the best place to ensure that restraint is only used as a last resort.

47. As the recently announced independent review into the deaths of young people (18-24) in custody seeks to learn lessons, it would be a tragedy if the government proceeds with plans which could put children at greater risk of suicide and self-harm. Before the government reverses improvements made in the treatment and conditions of the most vulnerable children in the justice system, we urge the Committee to seek further reassurance that force will only be used in exceptional circumstances when children pose a direct and immediate threat to the safety of themselves or others. The government should also bring under 18s within the scope of this independent review on deaths in custody.

Part 3

Costs of criminal courts (Clauses 29 and 30)

48. Clause 29 and 30 will require courts to impose a charge on all adult offenders who have been convicted of a criminal offence. The level of the charge will be set by the Lord Chancellor. In setting the charge the Lord Chancellor expects to have regard to factors likely to affect the cost of proceedings, such as whether the offender pleaded guilty, whether their case was dealt with in the magistrates’ or Crown Court, and the offence type. It will be collected after other financial impositions – compensation, victim surcharge, prosecution costs and fines – have been paid off, at a rate the offender can afford. Offenders will be able to apply to pay by instalments and to vary the rate of payment if they are not able to afford it.

49. It was encouraging to hear during the second reading debate that the government accepts the need to ensure that fines are set at a rate according to their ability to pay, based on an accurate assessment. Robert Buckland MP, speaking in the debate said:

"Will my right hon. Friend ensure that when this streamlined procedure is adopted, pre-hearing consultations take place with defendants about their ability to pay a fine? A proper written means test would enable realistic fines to be imposed, and to be much easier to collect than fines imposed by means of an exercise that would be theoretical without such information." [26]

       The Secretary of State, Chris Grayling agreed to take this "on board".

50. Despite the safeguards built into the provision, we are concerned that many offenders will not be in a position to afford court costs in addition to paying the costs of compensation, victim surcharge, prosecution costs and fines. The provision could lead to injustice as defendants could end up entering a guilty plea rather than face the possible financial penalties of proceeding to trial.

51. Many offenders are on low incomes, have high levels of debt and rely on benefits for support. The Legal Services Research Centre (LSRC) has highlighted some of the correlations between people who offend and wider social factors. They found that people who had been recently arrested were significantly more likely to report civil law problems concerning, for example, employment (10% v 5%), rented housing (11% v 3%), homelessness (13% v 1%), and money/debt (21% v 6%). They were also more likely to have themselves been victims of crime (38% v 20%). [27]

52. The Social Exclusion Unit’s 2002 report, Reducing Re-offending by Ex-Prisoners, recognised the importance of finance, debt and benefits as one of the nine social factors involved in promoting successful resettlement. Research has shown that 68% of prisoners were unemployed in the four weeks prior to custody while just 7.7% of the economically active population are unemployed. [28] 13% of prisoners have never had a job compared to 3.9% of the general population. [29] 15% of prisoners were homeless before custody while just 4% of the general population have been homeless or in temporary accommodation. [30]

53. Research by the Prison Reform Trust and UNLOCK found that people in prison were ten times more likely to have borrowed from a loan shark than the average UK household, and a third of people in prison did not have a bank account. [31]

The Committee will want to ensure that the new provision does not increase debt and hardship or distort criminal justice practice.

 Part 4

Likelihood of substantially different outcome for applicant (Clause 50)

Concerns about the government's proposals to limit the use of Judicial Review have been raised by respected Peers, the legal profession, NGOs and MPs during the second reading debate. Lord Pannick, a very experienced Queen’s counsel who has taken judicial review cases on many occasions and defended Governments in such cases, wrote in The Times to highlight his concerns.

"Over the past 40 years, judicial review has helped to prevent abuse of power by governments of all complexions. It is ironic that judicial review now needs protection from a politician whose reforms would neuter its force by the use of political slogans that have no factual basis and are ignorant of legal and constitutional principle.

"All governments come to resent the power of the judiciary to identify and remedy unlawful conduct. But until now they have, with greater or lesser enthusiasm, recognised the value of what is central to the rule of law. After all, they will not be in power indefinitely…It tells the Government, and the world, that what has been done is unlawful. Ministers and civil servants know that they must change their conduct for the future, and they do so."

We would urge the committee to remove clause 50 from the Bill

March 2014

[1] Hansard HC, 24 February 2014, c72


[3] Table 1.4, Ministry of Justice (2013) Offender Management Statistics (Quarterly) January to March 2013, London: Ministry of Justice

[4] All Party Parliamentary Penal Affairs Group (2014) The Parole Board - Meeting the challenges of an ever changing criminal justice system – February 2014. Available at

[5] Hansard HC, 2 September 2013, c182W






[11] Hansard HC, 24 February 2014, c78

[12] Ministry of Justice (2013) Story of the prison population: 1993-2012 England and Wales, London: Ministry of Justice

[13] Hansard HC, 24 February 2014, c73

[14] Loucks, N (2007) No one knows: Offenders with learning disabilities and difficulties: review of prevalence and associated needs, London: Prison Reform Trust

[15] Hansard HC, 24 February 2014, c73

[16] Association of Chief Police Officers website, available at

[17] Hansard HC, 24 February 2014, c87

[18] HM Government (2013) Consultation on out of court disposals, London: Ministry of Justice

[19] Ibid.

[20] National Audit Office (2013) Managing the prison estate, London: The Stationery Office

[21] See CirclesUK’s presentation to the All Party Parliamentary Penal Affairs Group in February 2010

[22] Hansard HC, 24 February 2014, c89

[23] HM Inspectorate of Prisons (2013) Report on an unannounced inspection of HMYOI Hindley 19-23 November 2012 The Stationery Office: London

[24] Ministry of Justice (2013) Transforming Youth Custody, paragraph 33.

[25] Paragraph 34 of TYC states: "We accept that there is always likely to be a small number of the very youngest, most vulnerable and most challenging young people who will be unsuited to the mainstream provision in a Secure College and will require specialist custodial services. To cater for this population we are continuing to provide sufficient places in SCHs, while seeking to secure improvements in service and reductions in cost."

[26] Hansard HC, 24 February 2014, c55

[27] Pleasance, P. (2009) Criminal Offending, Social and Financial Exclusion and Civil Legal Aid,

[27] London: Legal Services Research Centre

[28] Prison Reform Trust (2013) Bromley Briefings Prison Factfile (Autumn 2013), London: Prison Reform Trust

[29] Ibid.

[30] Ibid.

[31] Bath, C & Edgar, K (2010) Time is Money: financial responsibility after prison, London: Prison Reform Trust

Prepared 12th March 2014