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| Management Of Offenders And Sentencing Bill [HL] |
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These notes refer to the Management of Offenders and Sentencing Bill [HL] as introduced in the House of Lords on 12th January 2005 [HL Bill 16] MANAGEMENT OF OFFENDERS AND SENTENCING BILL [HL]________________ EXPLANATORY NOTES INTRODUCTION 1. These explanatory notes relate to the Management of Offenders and Sentencing Bill [HL] as introduced in the House of Lords on 12 January 2005. They have been prepared by the Home Office in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament. 2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. Where a clause or part of a clause does not seem to require any explanation or comment, none is given. SUMMARY AND BACKGROUND 3. In December 2003 Lord Carter published the report of his review of the correctional services, Managing Offenders, Reducing Crime. The Prime Minister, the Home Secretary and the Chief Secretary to the Treasury commissioned that review, which concluded that there was a need for the probation and prison services to work closer together and for a new approach to managing offenders to be developed. It also recommended further sentencing reforms, building on those introduced by the Criminal Justice Act (2003). The review identified these reforms as necessary to ensure that resources spent on correctional services are used more effectively to further reduce crime. 4. In January 2004, following a Statement to the House of Commons by the Home Secretary, the Government published its response to Lord Carter's review in the consultation document Reducing Crime - Changing Lives, which substantially accepted the recommendations of Lord Carter's review. Further decisions by the Home Secretary, informed by that consultation exercise and a subsequent consultation on the organisational structure of the National Offender Management Service (NOMS), were announced in a Written Ministerial Statement to the House of Commons on 20th July 2004. That Statement committed the Government to developing the NOMS by concentrating on two main reforms: introducing offender management and delivering better services by bringing in greater competition in the provision of correctional services. 5. The Bill is intended to support the development of the NOMS within the existing legislative framework of the correctional services. It establishes the aims of the service; it extends the Secretary of State's powers to direct the contracting out of probation services; it makes provision for the constituent parts of the NOMS and the police to share information with one another and it imposes a duty on a local probation board to secure that a sentence plan is prepared for every offender who receives a custodial or community sentence. The Bill also includes a number of measures to increase parity between private and public sector prisons. 6. The sentencing reforms in the Bill derive from the recommendations of the Carter review, which proposed a day fines scheme. The Bill includes a new scheme for calculating fines which takes into account in each case the gravity of the offence and the daily disposable income of the offender. This involves related changes to the standard scale to bring it into line with the new scheme. The purpose of the new scheme is to reduce fine defaults and help revive the use of fines by the courts. The measure amending the Sentencing Guidelines Council's role will require the Council, when framing or revising guidelines, to have regard to the resources which are likely to be available for giving effect to sentences. 7. The Bill makes three provisions to extend the use of technology in improving the management of offenders. Two provisions extend the use of electronic monitoring, one for offenders serving community sentences and the other for defendants on bail who would otherwise have been remanded in custody. A further provision enables the wider use of polygraph (lie-detector) testing in the management of sex offenders to be explored. The Bill also makes provision which will enable the use of attendance centres for a wider range of offenders to be piloted. TERRITORIAL EXTENT 8. The Bill generally applies to England and Wales. Part 3 applies to Northern Ireland and Scotland in respect of complaints about certain matters mentioned in Schedule 2, and certain requests under Clause 21, and also to Northern Ireland in respect of certain deaths falling within Schedule 3. THE BILL 9. The Bill is in six parts. Part 1 - The National Offender Management Service 10. Clauses 1 to 6 relate to the National Offender Management Service. Clause 1 establishes the aims of the National Offender Management Service and imposes a duty to have regard to those aims upon the constituent parts of the National Offender Management Service. 11. Clause 2 makes provision for the Secretary of State to give specific directions about how local probation boards perform their contracting-out function. 12. Clause 3 makes provision for bodies exercising functions within NOMS, and the police, to share information with one another for the purpose of performing their functions. 13. Clauses 4 to 6 relate to the sentence planning function of offender managers. Part 2 - Prisons 14. Clauses 7 to 10 remove some of the differences in the ways in which contracted-out prisons operate by giving their directors and prisoner custody officers powers comparable to those which governors and prison officers in directly-managed prisons already possess. Clause 11 renames Boards of Visitors, Independent Monitoring Boards. Clause 12 clarifies who may be authorised to undertake limited searches of prisoners. Part 3 - Her Majesty's Commissioner for Offender Management and Prisons 15. Part 3 establishes HM Commissioner for Offender Management and Prisons. The Commissioner will be a statutory office holder legally independent of the Secretary of State, equipped with statutory powers of investigation. The role of the Commissioner will be to provide independent adjudication of complaints from offenders and immigration detainees (in relation to treatment whilst in detention) and to investigate deaths of prisoners, young people detained in Secure Training Centres, residents of Approved Premises (formerly known as Bail and Probation Hostels) and those detained in certain types of immigration detention accommodation. The Commissioner will also be able to investigate other incidents of concern on request of the Secretary of State. 16. These functions are for the most part currently performed by the Prisons and Probation Ombudsman (PPO) on a non-statutory basis. The PPO was established in 1994 on the recommendation of the Woolf inquiry into the riots at Strangeways and other prisons in 1990. In 2004 he was given responsibility for investigating deaths in prison custody, in order to help fulfil the State's obligation to provide swift and effective investigation of such deaths. There has been a commitment on the part of the Home Office since 1998 to put the PPO on a statutory footing. This was confirmed in the 2002 Criminal Justice White Paper Justice for All. 17. To avoid potential duplication of provision, amendment to the Parliamentary Commissioner Act 1967 is required to remove from the Parliamentary Ombudsman's jurisdiction any matters which fall within the jurisdiction of the new Commissioner. Minor amendments to other legislation are made to facilitate information sharing with other bodies. Part 4 - Sentencing 18. Part 4 includes measures to require the Sentencing Guidelines Council to have regard to the resources that are likely to be available for giving effect to sentences imposed by courts. 19. Part 4 also introduces a new scheme for the fixing of fines that will apply to adult offenders sentenced in Magistrates Courts. The scheme provides that the court reflects the seriousness of the offence in the number of "income units" imposed. The court then determines the value of the "income unit" in each case based on the offender's disposable income. The two figures are multiplied to give the amount of the fine. Part 5 - Miscellaneous provisions 20. Clauses 47 - 50 make provision to pilot polygraph testing as a condition of release on licence for specified sex offenders. 21. Clause 51 makes provision for the Secretary of State to change the age range for attendance at an attendance centre which is currently capped at age 25. 22. Clauses 52 includes measures for an extension of the use of electronic monitoring to include continuous electronic monitoring of an offender's whereabouts as part of a community sentence or a suspended sentence and unrelated to the need to secure compliance with another requirement of the order. 23. Clause 53 amends the Bail Act 1976 to make available the use of electronic monitoring technology for defendants on bail who would otherwise have been remanded in custody. Part 6: Supplementary 24. Clauses 56, 57 and 58 detail the Bill's territorial extent, arrangements for commencement and its short title. COMMENTARY ON CLAUSES PART 1: THE NATIONAL OFFENDER MANAGEMENT SERVICE Clause 1: Aims of the Service 25. This Clause sets out the aims of the National Offender Management Service (NOMS). Subsection (1) identifies the bodies which perform the functions of the NOMS to which the aims apply. 26. Subsection (2) requires the bodies identified in subsection (1) to have regard to the aims when exercising their functions; and establishes the aims of the NOMS as the protection the public; the reduction of re-offending; the proper punishment of offenders; ensuring offenders are aware of the effects of their crimes on victims and on the public; and the rehabilitation of offenders. 27. Subsection (3) makes clear that the duty to have regard to these aims does not affect the obligations placed upon those performing the functions of the NOMS by any other Act. Subsection (4) defines the statutory functions to which the aims apply. 28. Subsection (5) replaces the aims of the National Probation Service, as set out in Section 2 of the Criminal Justice and Court Services Act (2000), with the aims as set out in subsection (2) of this Clause. Clause 2: Contracting-out by local probation boards: specific directions 29. This Clause inserts a new subsection into Section 5 of the Criminal Justice and Court Services Act 2000. The purpose of the new subsection is to make clear that the Secretary of State can direct a local probation board to secure that organisations and individuals other than its own staff to perform its functions; and that the Secretary of State can direct that a board shall not contract-out a function. 30. The new subsection also enables the Secretary of State to direct that the arrangement a board makes with an organisation or individual to perform its functions, includes or does not include specified terms. The new subsection does not affect the broad powers of direction the Secretary of State already has by virtue of paragraph 12 of Schedule 1 to the 2000 Act. Clause 3: Disclosure of information 31. This Clause inserts a new section into Section 5 of the Criminal Justice and Court Services Act 2000. Its purpose is to provide the police and those organisations which perform the functions of the NOMS, with the power to disclose information to one another where that is necessary for any relevant purpose. 32. Subsection (2) of the new section gives a local probation board the power to disclose information about an offender with other parts of the NOMS and with the police. Subsection (3) provides that this power to disclose information is reciprocal. 33. Subsection (5) of the new section defines the relevant purposes for which the power to disclose information provided by the section may be used. This definition is provided by reference to the functions of the bodies within the NOMS and to those of the police. Subsection (8 makes clear that the power to disclose information provided by this Section does not affect any other power to disclose information. Clause 4: Offender management: sentence plans 34. Subsection (1) of this Clause imposes a duty on a local probation board to prepare a sentence plan every offender for whom it is responsible who receives a custodial or community sentence. It also requires that the plan is kept under review and is revised where necessary. The subsection makes clear that it is the offender manager, that is an officer of the probation board, who is responsible for preparing, revising and revising sentence plans. 35. Subsection (2) identifies the offenders whose sentences probation boards have a duty to plan as any person, other than someone aged under 18 when convicted, who receives a custodial or community sentence. Subsection (3) makes clear that the requirements of this provision do not apply to offenders sentenced before the commencement of this provision. 36. Subsection (4) clarifies that if an offender is the subject of more than one sentence, a single sentence plan not one for each sentence is required. Subsection (6) requires that a copy of the sentence plan is given to or shown to the offender. Clause 5: Contents of sentence plans 37. This Clause describes the contents of a sentence plan, what it will contain and who is responsible for it. 38. Subsection (2) defines the contents of a sentence plan as, first, the activities which it is suitable for an offender to undertake during his sentence; and, secondly, the facilities or services which it is appropriate to make available to the offender during his sentence. Subsections (3) and (4) respectively clarify these matters in respect of those sentenced to a suspended sentence of imprisonment or a community order; and in respect of those sentenced to a term of imprisonment. 39. Subsection (5) enables an offender manager to include other information in a sentence plan which he thinks is appropriate. Subsection (6) makes clear that the sentence plan will cover the whole period of the sentence, so far as is practicable. Clause 6: Sentence plans: supplementary 40. Subsections (1) and (3) of this clause give boards the discretion to prepare and review sentence plans for three types of offender not covered by the duty imposed by Clause 4. These plans may include any information of the sort defined in Clause 5. The three types of offender identified are, first, an offender who was sentenced outside England and Wales; secondly, an offender who was sentenced before the duty came into effect; and thirdly, an offender who was aged under 18 years when convicted. In respect of the latter, subsection (2) enables a sentence plan prepared by an authority other than a board to be treated as though it had been prepared by the board. 41. Subsection (4) makes clear that the content of a sentence plan, which is prepared either as a requirement under Clause 4 or under the provisions of this Clause, neither creates a right or entitlement for an offender for whom the plan was prepared; nor does it prevent that offender from being given instructions which are not included in the plan. PART 2: PRISONS Clause 7: Powers of director of a contracted-out prison 42. Clause 7 removes the prohibition in Section 85(3) of the Criminal Justice Act 1991 that prevents a director in a contracted-out prison from exercising certain adjudication functions. The effect of the Clause is that directors, rather than controllers employed by the Home Office who currently exercise the functions in question, will be able to inquire into a disciplinary charge laid against a prisoner, conduct the hearing of a charge or make an award in respect of any charge. All such proceedings will take place in accordance with the Prison Rules or the Young Offender Institution Rules, as appropriate. By virtue of the amendments made by this Clause a director will also be able to segregate prisoners, temporarily confine prisoners or apply special controls or restraints in non-urgent situations. Clause 8: Prisoner Custody Officer: powers of search 43. Subsection (3) of the Clause amends Section 86(2) of the 1991 Act which prevents prisoner custody officers performing custodial duties at a contracted-out prison from conducting anything more than a "rub-down" search of a visitor. The effect of the amendment is to allow a prisoner custody officer to require a visitor he wishes to search to remove an item of clothing which is not only an outer coat, jacket or gloves. The amendment also clarifies that a prisoner custody officer shall not be able to require an intimate search to be carried out. Subsection (2) also amends section 86 by clarifying that the power to search will be exercised in line with relevant Prison Rules and Young Offender Rules. Clause 9: Prisoner custody officers: power of detention 44. Subsection (1) of this Clause amends the Criminal Justice Act 1991 by inserting a new Section 86A which gives a prisoner custody officer the power to require a visitor to wait with him where that officer believes the visitor has committed an offence under Sections 39, 40 or 41 of the Prison Act 1952 or an offence of attempting, inciting, or aiding, abetting, counselling or procuring the commission of such an offence. 45. Subsection (2)(a) of the new Section 86A enables the requirement to be imposed solely in order to enable a constable to arrive. It also makes clear that the period for which a visitor may be required to wait shall be for so long as is necessary for a constable to arrive and, in any event, shall not exceed two hours. Subsection (2)(b) of the new Section 86A enables the prison custody officer to use reasonable force to prevent the visitor whom he has detained from making off. Subsection (3) of the new Section 86A provides that a person who makes off when required by a prisoner custody officer to wait with him will be guilty of an offence and liable, on summary conviction, to a fine not exceeding level 3 on the standard scale. 46. Subsection (2) of this Clause clarifies that the new power to detain applies to prisoner custody officers performing contracted out functions at a directly managed prison. Clause 10: Amendment of section 87 of Criminal Justice Act 1991 47. Clause 10 makes a number of small, miscellaneous amendments to Section 87 of the Criminal Justice Act 1991. The principal effect of the clause is to enable the search powers vested in "authorised employees" under Section 8A of the 1991 Act to apply in a contracted-out prison. Accordingly a director of such a prison will be able to authorise employees to carry out "rub down" searches in accordance with Section 8A. Clause 11: Independent monitoring boards 48. This Clause provides for the change of name from 'Boards of Visitors' to 'Independent Monitoring Boards' and the removal of the requirement for two JPs to be members of Boards. 49. Section 6 of the Prison Act 1952 requires all prisons and young offender institutions in England and Wales have a Board of Visitors. Each board undertakes various duties, as outlined in Section 6 of the 1952 Act and as defined in Prison Rules, to look into and to report on the conditions for and treatment of prisoners. The Clause changes the name of Boards of Visitors to Independent Monitoring Boards. This name change was recommended in a review of the role of boards conducted by Sir Peter Lloyd. 50. Subsection (2)(b)(ii) amends Section 6(2) of the Prison Act 1952 by removing the requirement that at least two members of the Board are magistrates. This requirement related to the fact that Boards of Visitors used to have an adjudicatory function in relation to prisoners' breaches of discipline, which since 1992 they no longer have. Clause 12: Amendment of Section 8A of the Prison Act 1952 51. Clause 12 makes a small amendment to Section 8A of the Prison Act 1952 by providing that a person who is not necessarily an employee of a prison, but who is working there can be authorised to carry out a "rub down search" under Section 8A. PART 3: HER MAJESTY'S COMMISSIONER FOR OFFENDER MANAGEMENT AND PRISONS Clause 13: Appointment etc. of Commissioner 52. This Clause makes general provision for the creation of the office of Her Majesty's Commissioner for Offender Management and Prisons; outlines the Commissioner's main functions; and gives effect to Schedule 1. 53. The main functions are dealing with complaints from individuals relating to offender management, prisons and certain other matters, investigating deaths in custody and other matters, and carrying out other investigations at the request of the Secretary of State. Clause 14: Eligible complaints 54. This Clause and the related Schedule 2 make provision for the handling of eligible complaints by the Commissioner. The Clause provides the Commissioner with the discretion to determine the procedures for the making of complaints to him, providing that such procedures do not preclude the making of oral complaints. 55. The Commissioner will be able to act on complaints which are made to him by certain categories of person, including:
56. Subsection (6) provides for a person to be entitled to complain on behalf of the relevant person (as that term is defined in Subsection (7)) in relation to a complaint if that person is dead or unable to act for himself. 57. The Commissioner will only be able to act on those complaints which fall within the description of matters specified in Schedule 2. Such matters include complaints which relate to the way in which the complainant has been treated whilst held at certain premises, to the conduct (including the merit of decisions) of certain persons, or to other such matters as specified in Schedule 2. Subsection (3) enables the Secretary of State by order made by statutory instrument to specify matters which are excluded matters for the purposes of the Commissioner's complaints remit. 58. In 2003-2004, the Prisons and Probation Ombudsman (PPO) received 3,527 prison complaints and 282 probation complaints. Complaints about property formed the largest proportion of complaints from prisoners. Other common types of complaint related to security, general conditions, and transfers and allocation. Clause 15: Treatment by Commissioner of complaints 59. This Clause sets out the actions the Commissioner may take in relation to an eligible complaint and enables the Commissioner to determine the extent of any investigation of a complaint and the procedures applicable to any action to be taken. 60. The Commissioner may exercise his discretion and choose to decline to act on complaints for which he considers a more appropriate forum exists. He may also decline to deal with complaints which he considers are insubstantial or incapable of worthwhile resolution. The Commissioner may defer dealing with a complaint if, for example, having consulted with the police and Crown Prosecution Service, it appeared to him that immediate action might prejudice a criminal investigation. 61. Where the Commissioner declines to deal with a complaint, defers or stops investigating it or re-opens a previously considered complaint, then he is required in accordance with subsection (7) to notify the complainant, the complainant's representatives or such other persons as he thinks fit. 62. In addition to or as well as investigating a complaint, subsection (3) enables the Commissioner to provide assistance to complainants in order to resolve the complaint. Assistance could come in the form of invoking grievance resolution procedures such as settlement by mediation or conciliation. |
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| © Parliamentary copyright 2005 | Prepared: 13 January 2005 |