Police, Crime, Sentencing and Courts Bill

Written evidence submitted by the Magistrates Association (PCSCB25)
Document title	Magistrates Association’s Written Evidence to the Public Bill Committee on the Police, Crime, Sentencing and Courts Bill

About the Magistrates Association

The Magistrates Association (MA) is an independent charity and the membership body for the magistracy. We work to promote the sound administration of the law, including by providing guidance, training and support for our members, informing the public about the courts and the role of magistrates, producing and publishing research on key topics relevant to the magistracy, and contributing to the development and delivery of reforms to the courts and the broader justice system. With 14,000 members across England and Wales, we are a unique source of information and insight and the only independent voice of the magistracy.

 

Part 1

Increased maximum sentence for assaults against emergency workers

The current maximum sentence for an assault on an emergency worker is 12 months, as set out in the Assault on Emergency Workers (Offences) Act 2018. This new offence is relatively recent, and sentencing guidelines have yet to be published. We believe there should be an assessment of the impact of sentencing guidelines before any changes to the maximum sentence.

We draw the committee’s attention to our view that custody is not necessarily the most appropriate response to many of the cases involving assault on emergency workers. Punishment must be severe enough to show that these offences are taken very seriously, and the justice system must protect emergency workers. However, alternatives to custody can be a more effective way to reduce re-offending, especially alongside treatments for substance abuse problems or mental health issues linked to their offending behaviour.

Part 2: Chapter 2

Serious violence duty

We welcome the objectives in the proposed changes to the law to encourage multi-agency working as the key to reducing serious violence and to tackle knife crime.

We welcomed the government’s provision of emergency measures to increase the use of remote access to hearings in the justice system so that cases could make progress during the Covid-19 pandemic. However, we caution against making these measures permanent without sufficient evaluation of their impact, in terms of the fairness, effectiveness and efficiency of the justice system.

Part 2: Chapter 4

Pre-charge Bail

The Magistrates’ Association believes that the underlying principles for all bail decisions should be a presumption for the least restrictive measures necessary. For example, in relation to post-charge bail, there is a presumption against remanding a defendant in custody, and a requirement that the least restrictive conditions be imposed. On the same principle, there should remain a presumption against pre-charge bail, unless there are clear risks identified which justify it. Where the use of pre-charge bail is not appropriate ‘Released under investigation’, or RUI, is being wrongfully used instead and without proper conditions to prevent further offending, interference with witnesses, or the time limits and scrutiny.

We suggest that if the police are not using pre-charge bail appropriately, there is a need for further police training and guidance, rather than the removal of the presumption against pre-charge bail. We further suggest that all the risk factors are properly assessed. An alternative to address concerns about the use of RUI might be to ensure that there are time limits on how long an individual can be RUI before a decision is made on charging. Extensions could be made where necessary, but the presumption would be for RUI to be the shortest time necessary, with extensions only granted if considered appropriate by an independent arbiter.

Prisoner custody officers

The Magistrates’ Association supports the use of video links from police custody to allow a witness or defendants to access a hearing remotely, where the bench has decided it is appropriate. We welcome the provision of prisoner custody officers to ensure that such video links can be used.

Part 4

Parliament will decide whether a new criminal offence is needed as well as the offence of aggravated trespass. We draw the committee’s attention to the fact that we are not aware of a robust base of evidence showing that a new criminal offence is required. Magistrates rarely see cases of aggravated trespass, and this may show that existing offences are serving as a sufficient deterrent to unauthorised encampments.

As we set out in our response to the consultation on this issue, any new offence should be drafted as narrowly as possible to ensure that people are not unintentionally captured and criminalised. It would be disproportionate to criminalise everyone living in an unauthorised encampment. We welcome that this new proposed offence does not cover children, and that individuals will have already failed to comply with a request to leave the land (without a reasonable excuse to stay).

Any proposed criminal justice response to unauthorised encampments must not discriminate against any minority group. The Lammy Review highlighted the importance of minority groups having confidence in the criminal justice system and its agencies. We know that compliance with police and court orders correlates with the confidence in those making the orders. Policies designed to remove unauthorised encampments must take into account ways which maximise compliance with the police or authorities.

Part 5

Driving offences

It seems sensible to create a new offence so that where careless driving causes a serious injury the Crown Prosecution Service (CPS) does not need to charge careless driving and assault as two separate charges.

Part 6

Cautions

There is a risk that the proposed upper-tier diversionary cautions become in effect deferred prosecution schemes. There is a potential unintended consequence relating to non-compliance with the higher tier leading to a prosecution. One of the current benefits of an out-of-court disposal (OOCD) is that perpetrators admit guilt and avoid court and more serious punishment. This would presumably change if there was a risk that they would be prosecuted if they fail to comply with requirements.

The Magistrates’ Association is generally supportive of the advantages of OOCDs, because early diversion from court can lead to a more efficient criminal justice system. However, repeat offenders must be sentenced by a court to receive support and supervision of probation, so we welcome provisions to restrict multiple cautions. Sentencing in court also allows a detailed pre-sentence reports to identify needs and an appropriate sentence. There is a danger of OOCDs being used in cases that should be seen in court, and a lack of oversight in how the police are using them. We support scrutiny panels to oversee OOCDs; we have been heavily involved in emphasising the need for scrutiny panels, and in research identifying the disparity in the use of scrutiny panels across England and Wales. The MA strongly recommends that all police forces have scrutiny panels which consider a random selection of police out-of-court disposals, identifying learning where needed and increased public confidence through independent accountability. OOCDs should be subject to inspections by HM Inspectorate of Constabulary and Fire & Rescue Services to identify areas for improvement.

There is a gap in current sentencing powers, preventing a consistent approach. The proposals for diversionary cautions mean that less serious offending may engage diversion to rehabilitative services. However, if a case is too serious to be dealt with an OOCD and it comes to court, sentencers’ hands may be tied, and they may not be able to target support for underlying needs linked to offending behaviour.

We believe courts should have access to the options set out for diversionary cautions for non-imprisonable offences, including the option, rather than a requirement, to include a punitive element. This would help us reduce reoffending as well as offering reparation to victims. We understand that accumulating financial sanctions on repeat offenders, which are impossible for them to pay off, can exacerbate offending behaviour.

Part 7: Chapter 2

Community and suspended sentence orders

The Magistrates’ Association welcomes strong alternatives to custody, using more robust community orders for the most challenging offenders. We welcome that courts will be able to impose more punitive high-level community orders as alternatives to short prison sentences by increasing the maximum daily curfew hours to twenty, and curfews to two years.

We would want these more punitive measures to be accompanied by targeted rehabilitative measures, for example support for drug and alcohol problems or mental health needs. There is strong evidence that targeting underlying unmet complex health needs can contribute to reducing reoffending. [1]

Sentencers must feel confident in giving community sentences. While we generally support giving probation staff more powers to make minor adjustments to a community sentence, our members consider that coming back to court for more major changes is essential. We have heard from magistrates that giving probation staff powers to finish an order early, or removing a requirement, for example, reduces sentencers’ confidence in giving community sentences. We therefore believe that probation staff must return to court and make a reasoned application for major changes to community sentences. There will need to be clear guidance as to what constitutes a minor or major change to the community order. For the public to have confidence in the criminal justice system and the courts, they must know that a court order will be enforced.

Powers of courts to review sentences

We welcome the proposal to pilot a new problem-solving court approach (with judicial oversight) with intensive support and focus on those with complex needs. We know that a third of people on a community sentence say they have mental health issues or a drug addiction. Yet under 1% of community sentences include mental health treatment, and only 6% include drug treatment. These services are not available in many areas, and need to be widely available for community sentences to be effective.

We note the success of the whole system approach in Greater Manchester. We welcome the aim within the pilots to focus on women, as women offenders can be among the most vulnerable, and community-based interventions can be more effective than short prison sentences.

Any problem-solving court approach must involve judicial monitoring by magistrates. Judicial monitoring is already carried out by magistrates’ panels in respect of drug rehabilitation requirements and the model used in Greater Manchester for female offenders.

Part 8

Youth remand

We support the amendments which strengthen the criteria to be considered before a child is taken into custody. The welfare of the child must be taken into account.

We welcome the proposed changes to the ‘history condition’ to ensure only the most relevant history is considered, and only a recent and significant history of breaching bail, or offending while on bail, should justify custodial remand. However, it is not clear how ‘recent’ is defined. We would emphasise that a few months may provide the opportunity to make great progress for some young people, so the court must consider the context. There must be guidance on what is meant by ‘recent and significant’. Youth benches must have the flexibility to tailor the outcome to suit a young person’s needs and circumstances.

We welcome the proposal to ‘amend section 91 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) to include cases of arrests, warrants or adjournments for previously imposed orders to eliminate circumstances in which courts are left without the full range of remand options’. Courts should not be limited in terms of remand options. Magistrates have commented that in some areas, young people arrested on a warrant are still being kept in police custody for matters which often would not attract a custodial remand. This may be because of a lack of suitable local authority accommodation, for example.

Magistrates tell us that there is a potential difficulty when a youth remand hearing is held in an adult court on a Saturday or Bank Holiday. In this situation, sometimes the Youth Offending Team (YOT) is unable to attend and contribute to proceedings. Where there is no YOT present to advise the bench, there could be repercussions on decisions.

Youth cases must be dealt with by people with specialist training. We suggest that busy remand courts dealing with children and young people as defendants should ensure that the bench has youth experience, either with specialist District Judges or at least one youth magistrate. Legal advisers and court officials should have the right knowledge and experience to deal with youth cases.

Detention and training orders

We welcome the increased discretion offered to sentencers in youth court by the changes to the length of term of a detention and training order.

Youth rehabilitation orders

We would favour a more flexible use of electronic monitoring to reduce reoffending to the proposed increase in the maximum length of curfews attached to youth rehabilitation orders (YROs). Successful rehabilitation involves engagement with education and employment, and building positive relationships. We are concerned that measures which amount to house arrest for longer periods could hinder those aspects of rehabilitation which take place outside the home.

Location monitoring must be used carefully to avoid the likelihood of breaches, as YROs can become extremely complicated as to where and when exclusions are required. For example, a young person may need to travel through an ‘excluded’ area to receive mental health treatment or education and fulfil an order’s requirements, especially if they rely on public transport. YROs must not set children and young people up to fail.

We welcome the pilot extending the maximum length of high-intensity community sentences, and the intention to use custody as a last resort. However, we suggest that youth offending teams (YOTs) retain the supervision of the cohort of young people who turn 18 while still on an order, so that they can continue to access the same services and support to reduce the likelihood of reoffending, rather than being transferred to supervision under the adult probation service for the remainder of a sentence imposed by a youth court.

Part 10: Chapter 1

Serious violence reduction orders

The Magistrates’ Association has three issues to raise with the committee about the proposed serious violence reduction orders (SVROs):

First, we are not aware of robust evidence showing that an increased use of ‘stop and search,’ targeting specific individuals, will be effective in reducing knife crime.

We remind the committee that the government consultation on SVROs stated:

‘the data comparing stop and search to crime does not support the conclusion that a reduction in stop and search has led to an increase in knife crime.’

The What Works research that is referenced says there is

‘only limited evidence of stop and search having acted as a deterrent at a borough level’,

with the weakest association being in relation to violent crime.

Second, increased use of stop and search can lead to an increased lack of trust and confidence in the justice system, and these negative consequences of introducing this new order should be balanced with any positive benefits. There is extensive evidence that people from Black, Asian and Minority Ethnic communities have a lack of trust and confidence in the police and the wider justice system. This stems in part from the disproportionate use of police powers. Use of stop and search in situations where a police officer is not responding to specific behaviour or relying on recent evidence is unlikely to increase trust in the police.

Third, if Black, Asian and Minority Ethnic people were to be more likely to receive a SRVO, then this would lead to increased disproportionate use of police powers against these groups of people. If police are to be given such wide-ranging powers to stop and search someone, there must be sufficient safeguards in place to ensure these powers can only be used when there is a live SRVO in place. It is not clear how cases of mistaken identity will be avoided. However, requiring a police officer to check that an SRVO is in place, then requiring a senior officer to sign off the stop and search would be two steps that may help to ensure SVRO powers are only used when appropriate.

Part 12: Procedures in courts and tribunals

We supported the greater use of remote hearings during the pandemic. These are exceptional circumstances, and these arrangements may not be fit for purpose for the longer term. Emergency measures must not become permanent without detailed evaluation. In particular, we must hear the experiences of defendants and other participants using remote hearings, to inform the court reform programme.

The Nuffield Family Justice Observatory and their partners have assessed the impact of increased use of remote hearings in family court proceedings. Their research shows that court users who are not professionals have more negative experiences of remote hearings, especially where they are not represented in court. When drafting provisions to support continued remote access to hearings, this evidence must be taken into account, to ensure fair participation and positive perceptions that impact on the confidence participants have in the system.

Where video and audio links are used all parties must be able to participate fully. Live links will not be appropriate for any trials involving defendants under the age of 18. This must be clearly set out in the legislation.

The legislation should limit the use of live links and audio links so it is not used unless:

a) It is clear that unrepresented defendants have had the opportunity to access legal advice

b) Parties are not deemed particularly vulnerable or in need of special measures which would make effective and fair participation via video link unlikely.

The judiciary will need guidance and training on how to guarantee fair and effective participation via video or audio links. The judiciary will also need guidance on how to judge whether individuals can access hearings using their own devices and locations rather than through dedicated video link suites. We welcome the provisions in the Bill to ensure transparency and public participation in criminal hearings where video or audio links are used. The public nature of hearings is a vital part of our justice system and must be maintained.

May 2021