Criminal Justice and Courts Bill

Written evidence submitted by the Criminal Justice Alliance

(CJC 18)

The Criminal Justice Alliance (CJA) is a coalition of 74 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. [1] The CJA works to establish a fairer and more effective criminal justice system. It is currently making the case for more justice reinvestment; better support for ex-offenders in their local communities and greater use of problem solving in the courts – all of which would ensure a more responsible, accountable and effective justice system.

Overview of the Criminal Justice and Courts Bill

The CJA welcomes some measures in the Bill. In particular:

· the much needed provision of an appropriate adult for 17 year olds who are given a youth caution or conditional caution,

· the removal of the automatic revocation when a youth referral order is breached or further offences committed and

· the increase in the upper age for jury service from 70 to 75 years which will allow greater participation by the community in the criminal justice process.

However CJA is very concerned that :

· increased electronic monitoring and changes to the prisoner recall system will result in a rise in the prison population. This will be in addition to the increase expected due to breaches of the planned mandatory 12 month supervision for all prisoners serving less than 12 months included in the Offender Rehabilitation Bill.

· there will be a substantial increase in the work of the Parole Board which is unlikely to be adequately resourced and will add to their existing back log, which in April 2013 [2] was 1323 cases.

· when there has been a steady reduction, over a the last five years, in the numbers of children in custody the proposal to build a new large 320 bed secure college will lead to a needless increase in this population.

· Restricting the use of simple cautions may have the unintended consequence of unnecessarily widening the net of the criminal justice system.

Part 1

Clause 6: Electronic Monitoring following release on licence

1. CJA welcomes the government’s concern about the reduction of re-offending by those newly released from custody. We also recognise in some, limited circumstances certain offenders may find a short, defined period of electronic monitoring helpful, if it encourages them to stay away from places where they are likely to be drawn into offending or to resist peer pressure to join in criminal activity. However we are concerned that the compulsory electronic monitoring of whole groups of offenders is an unnecessary and disproportionate restriction which will not greatly contribute to reducing their re-offending. Indeed for offenders who are in work, education or training, it will pointlessly identify them as an offender to all of their peers and make it harder for them to re-integrate back into their community. Electronic tagging only monitors an individual’s whereabouts and not their actions. Thus, criminal behaviour, such as drug dealing or handing stolen goods, may be brought into the family home impacting on everyone living there if offenders know their whereabouts are subject to surveillance. Also whether an offender is a perpetrator of domestic violence must also be considered before confining him or her for long periods at home under a curfew monitored by electronic tagging.

2. This proposal lacks any costing at all. The CJA strongly contends that the resources needed to set up such an extensive surveillance system would achieve much better reductions in re-offending if they were invested in health, housing and educational services in the community. In addition, the mandatory electronic monitoring of all those released from prison is likely to result in a high number of breaches which in turn will increase the number of recalls to prison. All licence conditions, especially complicated or lengthy ones need to be clearly explained to offenders. 20-30% of offenders have learning disabilities or difficulties that interfere with their ability to cope with the criminal justice system [3] , exacerbating the likelihood of breaching their licence. Supporting offenders on release with the appropriate interventions, will result in better long term outcomes including higher rates of desistance.

3. The blanket monitoring of a whole class of released offenders without the need of an assessment of their individual circumstances cannot be justified, and safeguards should be incorporated into the legislation. The CJA considers that the compulsory electronic monitoring of everyone on licence is too disproportionate a measure. Rather than preventing crime it will only aid in its detection once it has been committed.

Clauses 7 - 8 : Test for Release after Recall : determinate sentences

4. The CJA fears that this proposal will add considerably to the prison population and further clog up the already inundated parole system .

5. The profile of prisoners drawn from Ministry of Justice statistics is of a population who are unemployed in the four weeks before they go into custody (68%), homeless (15%), exhibiting symptoms of psychosis (16%), suffering from anxiety and depression (25%), have attempted suicide (46% of women and 21% of men), have used Class A drugs (64%) and drink alcohol on a daily basis (22%) [4] . They are a group who lead chaotic lives, who do not have settled accommodation and are not used to keeping regular appointments. Currently offenders who are on licence having served sentences between 12 months and 4 years are all subject to a set of standard licence conditions, requiring them to report regularly to the Probation Service, live at an address approved by the Probation Service and to be of good behaviour.

6. Nicola Padfield’s recent research [5] on recall shows that prisoners can feel they have been set up to fail by unreasonable licence conditions which have been inadequately discussed with them. They consider people who don’t know them impose conditions upon them which they cannot meet. She notes that licence conditions can be poorly drafted, overly complicated and too broad e.g to be of "good behaviour" and may impinge on the offender’s ability to get a job. Prisoners who had been recalled had little knowledge or understanding of what is being done to progress their case before the parole board. She also highlights that practical consideration needs to be given to what is done with recalled prisoners, particularly with those who don’t understand their recall so they can progress to a more effective resettlement in the future.

7. The proposals in the Offender Rehabilitation Bill to bring the 50,000 prisoners a year who serve short term sentences under mandatory supervision will include a group of prolific offenders who commit low level crime, often linked to alcohol or drug misuse. The government estimates that 13,000 people a year will be recalled to custody under these proposals [6] . These additional recalls coupled with the rise in standard recalls, a result of the new test proposed in this clause, will mean a substantial increase in the Parole Board’s work load. The calculations used to estimate the number of recalls and their costs in the impact assessment accompanying the Bill do not take into account those expected extra places.

8. Under the new test, the Parole Board will have to consider whether each recalled offender is "highly likely to breach their licence condition" if released. Our concern is that this new group of short term prisoners being brought under supervision, are likely to breach their licences, and if recalled many of them are likely to pass the proposed test. Thus, this measure will result in more offenders being recalled to custody for longer periods increasing the prison population. Before this proposal is introduced the CJA would urge the government to reconsider their estimates taking into account all the recalls to be expected under all new legislative provisions. Underestimates of predicted numbers in the past, such as with the introduction of the indeterminate sentence for public protection (IPP), have had a much greater impact on prisons and the parole system than was ever envisaged which will be felt for years to come.

9. David Calvert Smith, Chair of the Parole Board, recently highlighted that the review of recall cases, is by far the largest part of its work and that the recent case of Osborn, Booth and Reilly [2013] UKSC likely to increase the annual number of oral hearings from 4,500 to over 14,000 [7] . Furthermore, in its Annual Report 2012/13, written before the Criminal Justice and Courts Bill was before Parliament, the Parole Board set out how it saw its work load increasing over the next few years due to the numbers of IPP sentences coming up for review, and as the new sentencing provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 come into play [8] .

10. These proposals to increase the number of standard recalls and to instigate an additional test for those highly likely to breach their licence will substantially add to the work of the Parole Board. It is unlikely there will be any additional resources to support this increased workload. As recalls are the most pressing priority of the Parole Board they will push back other cases to the detriment and frustration of lifers and prisoners serving long determinate sentences whilst simultaneoulsy increasing the prison population.

Clauses 10 and 11: Increasing the maximum sentence for the offence of remaining unlawfully at large

11. Increasing the sentence for offenders who are unlawfully at large from 6 months to 2 years is unnecessarily punitive. Offenders may be unlawfully at large for a number of reasons including wilfully absconding, a genuine mistake over their licence or because they have misunderstood what was expected of them (see earlier discussion of problematic licence conditions). Once they return to custody they are likely to have to serve the rest of their sentence as well as the sentence for absconding. Increasing the length of this additional sentence is unnecessary, unlikely to act as a deterrent and will further add to the prison population. When considering the situation of offenders unlawfully at large a distinction needs to be drawn between those who deliberately abscond and those who do not, to avoid punishing offenders with learning disabilities or difficulties. Explicit provision should be made to ensure all offenders understand the licence conditions they are subject to. Prisoners report seeing their licence conditions for the first time at the moment of release, when they would sign anything to get out or having never read them [9] .

Clauses 14 and 15: Simple Cautions

12. Simple cautions and other out of court disposals OOCDs are a valuable tool in dealing with low level offending and the numbers administered are decreasing. OOCDs play a vital role in filtering those who progress further into the criminal justice system. They keep individuals from unnecessarily clogging up valuable court time whilst allowing for reparation, high levels of victim satisfaction and often providing a sanction more likely to prevent individuals from committing further offences. They also enable a more localised response to offending and these advantages should be properly communicated to the public. By limiting the discretion of well trained, experienced police officers there is a danger of widening the net of criminal justice over those who would be better served through using other more appropriate interventions.

Part 2

Clause 17: Secure colleges

13. The CJA believes there is a danger that sentencers will see the new secure college as a panacea to stop children offending. This will lead to the imposition of longer sentences so children can "benefit" from the education and other services available in the secure college and the "uptariffing" of children who are on the custody threshold.

14. Many of the children who find themselves in custody have spent some time in care, are very likely to have had an absent parent, have experienced neglect or abuse, have high prevalence of mental illness, and to have been excluded from school. 23% of young offenders have learning difficulties (IQ below 70) and 36% have borderline learning difficulties (IQ 70-80) [10] . Boys (aged 15-17) in prison are 18 times more likely to take their own life than children of the same age in the community [11] . 11% of children in prison have attempted suicide [12] . Thus children in custody have many issues which have to be addressed, they don’t just need to be educated. Entering the secure estate should not be a pre-requisite for them getting the interventions they require to lead a crime free life in the future.

15. The population of children in custody has dropped by 59% in the last 5 years. Thus those left in custody are the most troubled, high risk and difficult to manage children in the criminal justice system. The reduction of this population does not represent an opportunity to save money, as dealing with them effectively requires sufficient resources to be invested in holistic services. Staff working with these children need to be experienced and well-trained and provide more than educational provision.

16. It is hard to imagine how in practical day to day terms secure colleges will differ from current youth custody provision which results in very high re-offending rates for the children released from them. 72% of children (aged 10-17) re-offend within a year [13] . The model of large institutions is unsound as many children report feeling unsafe [14] and it is very difficult to keep those with rival gang affiliations apart. One large central England facility will break a child’s ties with local services and strain family relationships resulting in fewer family visits.

17. The CJA is very concerned that this secure college will lead to children aged 12-14 being held in conditions that are currently reserved for the 15-17 year old age group as more expensive provision in secure children’s homes is cut. It is also deeply worrying that sections 8-10 of Schedule 4 allow "reasonable force" to be used to maintain good order and discipline within the establishment, despite the courts clearly ruling that such practices are illegal.

18. Removing children from their homes and local communities and sending them many miles away is unlikely to improve their rates of re-offending. Providing robust, intensive and well resourced community sentences is more likely to produce better outcomes for these damaged children as well as being cheaper than the building, running and staffing of a new secure college.

Clauses 20-23

19.The CJA supports the proposals for youth cautions, conditional cautions and referral orders.

Part 3

Clause 29-31: The criminal courts charge

19. The imposition of this new charge is in addition to existing penalties and the courts powers to require offenders to make payments including compensation for victims, the victim surcharge, prosecution costs and fines. Applying yet another charge to those sentenced by the court will increase their financial burden. Many offenders are reliant on benefits and paying this extra charge will either incur further debt or result in increased deprivation to the offender and their family. In a recent study when offenders serving community sentences were asked what would help them stop offending 62% said having a job, [15] similarly 48% of those in prison have a history of debt [16] .

20. This charge is an additional burden for offenders and their families and must be seen in the light of recent benefits cuts. Inability to pay is likely to see offenders bought back before the courts and there is a danger of an escalation in punishment through the addition of this extra charge.

March 2014

[1] Although the CJA works closely with its members, this briefing 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

[2] Ibid.

[3] Loucks, N. (2007) No One Knows: Offenders with Learning Difficulties and Learning Disabilities. Review of prevalence and associated needs, London Prison Reform Trust

[4] Results of the Ministry of Justice Surveying Prisoner Crime Reduction (SPCR) survey 2012.

[5] Padfield, N. (2013) Understanding Recall 2011 Paper no. 2/2013 Legal Studies Research Paper Series, University of Cambridge.

[6] Ministry of Justice (2013) Updated Impact Assessment for the Offender Rehabilitation Bill, London . Ministry of Justice.

[7] Minutes of the All-Party Parliamentary Group on Penal Affairs held on 4th Feb. 2014

[8] The Parole Board for England and Wales Anuual Report and Accounts 2012/2013: The Parole Board. London

[9] Padfield, N. (2013) Understanding Recall 2011 Paper no. 2/2013 Legal Studies Research Paper Series, University of Cambridge

[10] Harrington, R and Bailey, S (2005) Mental Health needs and effectiveness provision for young offenders in custody and the community. London. Youth Justice Board

[11] Fazel, S et al. Suicides in male prisons 1978-2003, The Lancet, vol 366, issue 9493, 8 October 2005

[12] Jacobsen J et al (2010) Punishing Disadvantage: a profile of children in custody, London: Prison Reform Trust

[13] Table 18b, Ministry of Justice (2013) 2013 Compendium of re-offending statistics and analysis, London: Ministry of Justice

[14] Murray, R. (2012) Children and Young People in Custody 2011-12, London: HM Inspectorate of Prisons and Youth Justice Board

[15] Ministry of Justice (2013) Results from the Offender Management Community Cohort Study: Assessment and Sentence planning, London:Ministry of Justice

[16] National Offender Management Service (2007) Signposting Offenders to Financial Capability Training, Debt Advice and Finacnial Services, London: Ministry of Justice

Prepared 19th March 2014