Legal Aid, Sentencing and Punishment of Offenders Bill

Wednesday 1st February 2012 Lords Chamber

Committee (7th Day) (Continued)

20:56

Amendment 171A

Moved by

[Lord Pannick]

171A: After Clause 58, insert the following new Clause—
“Payments in respect of pro bono representation
In section 194(10) of the Legal Services Act 2007, after ““civil court” means”, add “the Supreme Court,”.”

[Lord Pannick]

My Lords, Amendment 171A is surely the least controversial of all the many amendments to this Bill that are being debated. It proposes an amendment to Section 194 of the Legal Services Act 2007. Section 194 is a very useful provision. It recognises that members of the Bar and solicitors frequently act pro bono for clients in legal proceedings—they charge no fee. This is of course to their great credit and to the enormous benefit of the legal system as a whole, as well as of their fortunate clients.

Some of our debates on this Bill have involved criticism of lawyers, some of it justified. We should take a moment to note that many lawyers act regularly in a wholly creditable manner by providing people with legal assistance when there is no funding, and without that pro bono assistance justice would simply not be done. One inevitable consequence of this Bill will be an increase in the demand for pro bono assistance from lawyers. When the pro bono lawyer succeeds for the claimant or the defendant, the unsuccessful other party cannot be ordered to pay the costs of the proceedings because the successful litigant has no costs, or limited costs, having received pro bono assistance. The losing side would gain an unfair benefit and indeed an unfair advantage in the litigation.

Section 194 addresses this situation. It confers power on the court in civil cases to order a person, normally the unsuccessful party, to pay a sum in respect of the notional costs to a charity prescribed by the Lord Chancellor. The charity prescribed is the Access to Justice Foundation, which distributes the funds paid to it to voluntary organisations providing free legal support for individuals and communities.

21:00

Section 194 of the Legal Services Act 2007 was promoted by the efforts of the noble and learned Lord, Lord Goldsmith, who I am delighted to see in his place. As Her Majesty’s Attorney-General, he promoted this valuable provision. He is now chairman of the Access to Justice Foundation and I pay tribute to his considerable efforts in encouraging and supporting pro bono work done by lawyers.

Section 194 has one small defect; it applies to the county courts, the High Court and the Court of Appeal but it does not apply to the Supreme Court. There is no sensible reason for not conferring this valuable power on the Supreme Court to make orders for payments to the prescribed charity in appropriate cases. Indeed, many cases in which lawyers act pro bono are the Supreme Court.

Justices of the Supreme Court and the Supreme Court users group have expressed the view that Section 194 should apply to the Supreme Court as it does to other courts. I hope that the Minister will be able to tell the Committee tonight that this omission will now be rectified. I beg to move.

[Lord Goldsmith]

My Lords, I very much welcome this amendment and thank the noble Lord, Lord Pannick, for having taken the opportunity to move and to promote it. He has already explained my particular interest as the now chairman of the charity that receives money made under these orders, which I prefer to call pro bono cost orders rather than Section 194 orders, because that is what they are. They are cost orders in the same way as the court grants costs in any other case. It is just that they do not go to the lawyers; they go to this charity which then distributes them. I should also declare an interest as the non-executive president of the Bar Pro Bono Unit and patron of the National Pro Bono Centre, two organisations that might—one of them certainly has—receive some of the grant money.

As the noble Lord has explained, the reason for these orders is the so-called “indemnity principle” in our costs regime. The indemnity principle means, first, that the court can order one party to pay the other party’s costs but only if that party is liable for those costs. In pro bono cases, the body is not liable for costs. That has several consequences, one of which is that you do not have the normal result at the end of the case where often the successful party receives costs. That results in the oddity—this is where I first saw the anomaly—of the unsuccessful party, the undeserving party if your Lordships will, receiving the benefit of the pro bono services, perhaps of some advocate as distinguished and able as the noble Lord, Lord Pannick. That cannot be right.

Secondly, there is no incentive to settle cases, which there often is in English cases, when there is a possible liability to costs at the end of the day. We have seen in a number of cases how that affects whether cases are settled; insurance companies and corporations will pay to a deserving claimant because they know that at the end of the day they will have to bear some costs if they do not.

Thirdly, it has proved to be a very valuable source of additional money for voluntary organisations providing pro bono services. I am very grateful to the noble Lord, Lord Pannick, for paying tribute to the lawyers—solicitors, barristers and legal executives—who do this for free and without payment. When I established the Bar Pro Bono Unit, I asked whether members of the Bar would be prepared to commit to three days of free unpaid work a year, and straightaway I had an overwhelming response. People are prepared to do this, and that is a great credit to them.

I have one thing to say to the Minister, which I always say when talking about this subject: this is not a substitute for a properly funded legal aid service but an adjunct to it, and a very valuable one. However generous a system might be, and we hope very much that the noble Lord will produce a more generous system at the end of the Bill, there will still be a need for this unit. However, as the noble Lord, Lord Pannick, has explained, there is a gap in that the House of Lords is not covered—

[A noble Lord]

The Supreme Court.

[Lord Goldsmith]

I am sorry, the Supreme Court—how outdated I am. To fill that gap would be very valuable. My understanding, like that of the noble Lord, is that the Supreme Court would welcome this. That is not surprising because the president of the Supreme Court is the noble and learned Lord, Lord Phillips of Worth Matravers, who, when he was Master of the Rolls in the Court of Appeal, was instrumental in passing the earlier Bill, but no doubt the Minister can confirm that. If not, his unsleeping department will be able check it instantly. I strongly support the amendment and hope that the Government will be able to accept it.

[Lord Bach]

My Lords, very briefly, we support the amendment. The expression “no brainer” has been used on a number of occasions. It is not an attractive expression, but it is surely one that applies to this amendment.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, I am grateful to the noble Lord, Lord Bach, for his intervention, and to the two noble Lords who contributed to the debate. The role of the Ministry of Justice in pro bono work is undertaken in partnership with the Attorney-General to endorse, support and facilitate pro bono initiatives. The Attorney-General carries policy responsibility for pro bono work within the Government, presumably following the initiative of the noble and learned Lord, Lord Goldsmith. I certainly pay tribute to the work that he has done for the Access to Justice Foundation. I understand that the foundation runs an awareness-raising campaign, Unlock Funds for Justice, while on the other side the MoJ is providing funds for LawWorks over the next 18 months to fund two specific projects. LawWorks is the primary referral agency for legal help provided pro bono by solicitors. Although he is not in his place at the moment, I know that my noble friend Lord Phillips of Sudbury has played a big part in promoting the agency.

Let me say first that the Government recognise the valuable contribution made by the legal profession in providing advice through pro bono work. The pro bono contribution made by the legal profession is made alongside publicly funded legal assistance. It is an adjunct to, not a substitute for, such assistance. I think that these speaking notes must have been left over from one of the briefs of the noble and learned Lord, Lord Goldsmith.

[Lord Goldsmith]

I am happy that the noble Lord read them too.

[Lord McNally]

My Lords, Section 194 of the Legal Services Act 2007 allows courts to make an order for costs against a losing party in pro bono represented cases, with the moneys recovered going to a prescribed charity, the Access to Justice Foundation. The Ministry of Justice works with the Attorney-General who, as I have said, has policy responsibility for this work. The legislation reduces the disadvantage to parties represented pro bono by levelling the financial risks of litigation for both sides. It has also provided a new source of funding for the strategic support and promotion of pro bono work.

I am extremely grateful to the noble Lord, Lord Pannick, for highlighting this issue. The amendment, though, is one that the Lord Chancellor would like to consider further. Perhaps I may say that considering it further does not mean kicking it into the long grass or even making it a no-brainer, but it is one that needs proper consideration, and he has asked that, in that respect, he be given time to give it that consideration. I hope that the indications of support given in the Chamber tonight, the general direction of travel of this reply and my desire to make this a full house in terms of saying nice things about amendments that the noble Lord, Lord Pannick, has introduced today will give him confidence that what I have said is not a way of putting this matter into the long grass but of asking, as my briefing note does, that the Lord Chancellor be given time to give full consideration to this important matter. I see both the noble and learned Lord and the noble Lord coming for me.

[Lord Goldsmith]

One issue that we have looked at is whether it would be necessary to have any orders or consequential provisions made as a result of this change. I understand that, because of the existing Supreme Court rules, which can follow the rules in the other courts, it would not be a burden on officials. That might help the consideration to which the Minister has referred.

[Lord McNally]

The wonderful thing about this House is that you get free legal advice. I will certainly take that back to the Lord Chancellor with the weight of the advice of the noble and learned Lord, Lord Goldsmith, behind it. With that further steer, I would be grateful if the noble Lord, Lord Pannick, withdrew the amendment.

[Lord Pannick]

I am very grateful to the Minister. I will of course withdraw the amendment. I am very grateful to the noble and learned Lord, Lord Goldsmith, for his support, as I am to the noble Lord, Lord Bach, for his. It would indeed be churlish of me not to understand and accept the indications given by the Minister in respect of the amendment, which is plainly receiving far warmer consideration than some of the other amendments that we have discussed. I have to say that I cannot understand what further consideration is necessary in relation to an amendment of this sort in the light of the factors to which this debate has drawn attention, but on the understanding that this matter is receiving proper attention, in the hope that the Government will be able to bring forward an amendment in appropriate terms on Report and in thanking the Minister, I beg leave to withdraw the amendment.

Amendment 171A withdrawn.

Clause 59 : Costs in criminal cases

Amendment 172 had been withdrawn from the Marshalled List.

Clause 59 agreed.

Schedules 7 and 8 agreed.

Clause 60 agreed.

Clause 61 : Duty to give reasons for and to explain effect of sentence

Amendment 172A

Moved by

[Lord Ponsonby of Shulbrede]

172A: Clause 61, page 43, line 32, at end insert—
“(1A) The court may order that the prosecution should inform the victim of the court’s decision and the consequences thereof.”

[Lord Ponsonby of Shulbrede]

My Lords, the amendment would give all victims the right to be told about sentences passed in the courts. Yesterday, the Government launched a consultation document called Getting it Right for Victims and Witnesses. In the opening sentence, the Lord Chancellor states:

“Proper protection and support for victims of crime is fundamental to my vision of a reformed criminal justice system”.

In paragraphs 72 and 73, he makes it clear that it is his intention to opt in to a new EU directive on rights and support for victims of crime. He states also that he believes that victims are entitled to be treated with dignity and respect, and, crucially, that victims should receive information. That is the crux of the amendment. I have no doubt about the Government’s good intentions in this matter.

At present, once a case has been concluded, either in the courts or in an out-of-court settlement, there is no guarantee—and certainly no formal mechanism—to ensure that that the victim of a crime, if they so wish, is informed of the outcome of the case. In the Crown Court, there is a duty on the probation service to contact victims and their families after someone has been imprisoned for 12 months or more for a sexual or violent crime, but there is no obligation for less serious offences. I felt that it would make sense to put this new duty on the prosecuting agency on behalf of the victim rather than on the Courts Service itself. I did that because the prosecuting agency will already have the contact details on its files, and of course it already informs victims of the progress of their cases as they come to court.

21:15

The current situation can be remedied by the introduction of a victim information order where a sentencing Bench can order the prosecuting agency to give victims information concerning the sentence itself, the reasons for that sentence, if it is a community order what they are likely to carry out within that order, the commencement and completion of that order and any compensation that may be paid. At present, the victim's views in court are part of something called the victim impact statement. Victim impact statements are a valuable source of information for any sentencing Bench but they are, in my experience, rare. I have been a magistrate for six years and I have read an impact statement only about four or five times, so they are not used very much. They should be used more and they could be used to request a victim information order. Through that mechanism, the victim could ask the court to make sure that they are told about the outcome of the sentence.

Whether a victim impact order is made should ultimately be at the discretion of the court, and the court should of course have regard to any cost of making such an order. The only possible objection that I can see to my amendment is the likely cost of making such an order. I would be interested if the Minister could give any information about the likely cost of such an order given the Government’s expressed intent to put victims at the heart of the criminal justice system.

All noble Lords taking part in the Bill will know that there are many organisations representing victims. I have been contacted by a number of them, as I am sure have other noble Lords. They all essentially make the same point, which is that the lack of contact between victims and agencies such as the police, the courts, the prosecution services or the probation service is very often perceived as a lack of action by those agencies. In many cases that is the wrong perception but, even if it is wrong, it clearly undermines the criminal justice system itself. That is no doubt why we hear this admirable ambition of the Government to put victims at the heart of the criminal justice system. My amendment goes further towards achieving the Government’s aims and I beg to move.

[Baroness Quin]

Amendment 172B is in my name and that of the noble Lords, Lord Ramsbotham and Lord Wigley, and relates to Clause 61. I tabled two more amendments in the same group with the support of the noble Lord, Lord Wigley, Amendments 178ZA and 178ZB, which are similar to the first amendment and relate to Clauses 86 and 95. Even though my noble friend spoke on a slightly different aspect, I associate myself with his comments and with his concern for victims.

Although I do not have a financial interest to declare, I was prompted to table this amendment by some work that I did some years ago with the Prison Reform Trust. We were part of a project called No One Knows, which looked at the experience of people with learning difficulties and learning disabilities in the criminal justice system. I chaired the project’s advisory group, which brought together people with knowledge of issues from various spheres, including members from Mencap, healthcare professionals, people involved in social care and learning and skills, and various practitioners and academics. We were also helped in that work by the Working for Justice Group, a group of people who have direct experience of the system and whose first-hand knowledge was invaluable to us.

The project produced what I hope was an authoritative report, Prisoners’ Voices, which was well received by Ministers at the time, who undertook to look at our recommendations. I am pleased to say that both the previous Government and this one have taken some action on those recommendations; in particular, we are about to have more of a proper screening programme in the prison system to identify people with learning difficulties and disabilities. There have been improvements in the training of prison officers in this respect, and the very welcome recent development of some offender behaviour programmes recognising these particular issues. In addition, the Easyread system is being adopted in various parts of the criminal justice system, to increasingly good effect.

However, I believe strongly that further improvements and commitments in this area are necessary, certainly as far as the courts are concerned, which explains the tabling of these amendments. I am very grateful to the noble Lords, Lord Ramsbotham and Lord Wigley, for their support, particularly on an issue such as this, where I recognise their keen interest and experience. I am also grateful to the noble Lord, Lord Wigley, for signing the other two amendments that I mentioned. It is perhaps particularly appropriate because I know that the Prison Reform Trust’s report, Prisoners’ Voices, has been taken very seriously in Wales. The previous Health Minister in Wales, Edwina Hart, was part of the launch in Wales of the report and the measures that we wanted to see adopted.

I am also aware that Mencap and the noble Lord, Lord Rix, had very similar concerns about this part of the Bill to the ones that are reflected in these amendments. I say to the Government that these are, at this stage, obviously probing amendments, but with the plea that the Government look at our concerns with a view to try to change the wording of the Bill to reflect their importance.

We know that a very large number of offenders have learning difficulties and learning disabilities. Obviously it all depends on the definition that you use. If you use a very wide definition of learning difficulty, you could make the case that the majority of people in the prison system are affected. The work and research that has been done suggests that a core of, say, 20 to 30 per cent of offenders and people in the criminal justice system are affected by learning difficulties and learning disabilities. If you have a prison population of 80,000, that means anything between 16,000 and 24,000 people; so we are talking about a considerable number of people that we need to be aware of.

The figures for young people are even more serious. Research by Professor Karen Bryan and others seems to indicate that more than half of children who offend have speech and language communications difficulties. About half this group have very poor skills indeed. It is important for all parts of the criminal justice system to be aware of this, but it is particularly important in the initial stages, when people charged come into contact with the system. The Bill refers to ordinary language, which is welcome as far as it goes, but I find it somewhat vague. What may seem ordinary to a well qualified and educated lawyer may be way out of the ordinary to a young offender with learning difficulties or learning disabilities. As the Prison Reform Trust puts it:

“The term ‘ordinary language’ is imprecise; what is ‘ordinary’ to a magistrate or a judge may not be ‘ordinary’ to the individual offender”.

In the course of our work, we came across some very interesting examples. For example, one young person was asked in court whether he was remorseful about the crime that he had committed. Since he did not know what the word “remorseful” meant and was rather distrustful of it, he said no. Even such words as “victim” or “breach” are sometimes sufficient to confuse or mislead someone in that position. Indeed, Mencap makes the point that almost a quarter of prisoners under 18 have a learning disability or difficulty, with a 78 per cent reoffence rate among those at risk. That reoffence rate is an important part of our concern that we have the ability to make sure that we communicate properly with such people, as that can help to avoid some of the later difficulties that we are all keen to avoid.

I am aware, in conclusion, that an amendment trying to do what I seek to do here was tabled in another place by my honourable friend Helen Goodman, and I accept what the Minister Crispin Blunt said in reply on that occasion—that that particular amendment was defective and could have resulted in omitting some valuable elements from the Bill. However, my amendment, in trying simply to insert some wording, seeks to rectify that, and for that reason I hope that the three amendments that I have tabled can find favour and that we can find a better wording than the imprecise and unsatisfactory current wording of the Bill. I do not believe that there is a difference of substance or principle here; it is really simply a concern that we get the wording right so that the desired result is achieved.

[Lord Ramsbotham]

I rise to speak in support of Amendment 172B, to speak to Amendment 174, and to speak to Amendments 173, 177, 181, 182, 183, 184 and 185 both on behalf and in support of my noble friend Lord Rix, who would have declared his interest as president of the Royal Mencap Society had he been able to be in the House.

I speak first to Amendment 172B. I must declare an interest as chairman of the All-Party Group on Speech and Language Difficulties. As the noble Baroness, Lady Quin, has already pointed out, more than half the children who offend have some form of learning difficulty. The inability to communicate is the scourge of the 21st century, about which I have spoken many times in this House, most recently in the context of the Health and Social Care Bill. Regrettably, except in Northern Ireland, there is currently no routine screening to identify children with communication difficulties or learning disabilities. Until and unless there is, and early remedial action is taken, these children will be unable to understand or participate in the judicial process without effective support, which in turn must be related to their abilities or lack of them. This is yet another example of a need, identified in this Bill, being inhibited by lack of provision in another Bill. I hope that the Minister will speak to the Department of Health before Report so that we can consider how best to proceed with this amendment.

Amendments 173, 177 and 181 to 185, to which I speak on behalf of my noble friend, who much regrets that he cannot be present, are all based on the principle of safeguarding vulnerable people in the criminal justice system. They also reflect demands that the system should be sufficiently flexible to achieve the delicate balancing act of protecting offenders with additional needs while prosecuting them. Of course, perpetrators must face the consequences of their actions, but they should not be denied the support that they may require in order to understand and participate in the judicial process.

21:30

A wide spectrum of individuals is affected by these amendments: those with speech or language difficulties; those for whom English is not their first language; and those with a learning disability. According to the Prison Reform Trust report published in 2007, to which the noble Baroness, Lady Quin, referred, between 20 per cent and 30 per cent of offenders have learning difficulties or disabilities that interfere with their ability to cope within the criminal justice system. On top of this, there is ample evidence of current deficiencies within the system over meeting these additional needs, which vary from poor flagging of individual needs to inappropriate diversion schemes and insufficient adjustments being made in the interests of fairness. That flies in the face of the principles of justice, from which they are at risk of being disproportionately disadvantaged by the system.

Amendments 173, 177 and 183 to 185 are about the availability of accessible information at all stages of the judicial process. I appreciate that the Bill provides for the use of ordinary language when, for example, giving reasons and explaining outcomes. However, as my noble friends Lord Rix and Lord Wigley and I mentioned to the Minister when he kindly agreed to meet us, this does not go far enough. Ordinary language, however simplified, may not be sufficient to explain complex concepts or terminologies which could elude the comprehension of some individuals. For example, people with a learning disability may require easy-read formats, which include pictorial aids. What I am therefore seeking in the Bill is an acceptance that, to ensure that all aspects of the judicial process are fully understood by those with particular needs, different forms of communication above and beyond ordinary language must be employed, determined by what is most appropriate for the recipient.

I have a very real concern over one particular proposal in the Bill; namely, that conditional cautions could be issued without the involvement of the Crown Prosecution Service. If authorised persons such as police officers are to be allowed to offer such cautions, it is of paramount importance that they do so in a way that ensures that individuals with additional needs are aware of the conditions attached. Without this safeguard, miscomprehension could result in someone being unaware of what they are admitting to or what conditions they risk breaking, resulting in their suffering greater sanctions as a result. What is more, options for disposal, such as offender management courses, must be available in appropriate forms before they are attached as conditions to avoid people being set up to breach. That is one reason why the amendment calls for the use of appropriate adults, who are an invaluable resource for all vulnerable groups because they provide impartial advice in what can be very stressful situations. In this connection, I hope that there will be a greater obligation on authorities to make more use of them.

Amendments 181 and 182 relate to employment provision in prisons. Here I must declare another interest as vice-president of the Centre for Mental Health which, for the past five years, has been studying the employment of those with mental health problems, including learning disabilities. I fully endorse the positive role that employment can play in prisons, particularly with regard to the teaching of employment skills which can be utilised outside custody. However, government figures suggest that fewer than 7 per cent of people with a learning disability known to social services are in any form of paid employment and, regrettably, the significant barriers to work that they face already, including employer prejudice, are likely to be increased as a result of the stigma attached to a conviction.

Inevitably, people with learning difficulties have high support needs, and I echo Mencap’s concerns that without that support many of them will be unable to participate in the ethos of working prisons that the Government seek to implement. That could leave them isolated and unable to integrate into prison life on top of their vulnerability to targeted harassment and abuse. Furthermore, if financial penalties are now to be associated with a failure to carry out work-related activities, people with a learning disability stand to be disproportionately affected unless effective and adequate employment support mechanisms are put in place.

This group of amendments is designed to provide vital safeguards for certain vulnerable groups as they make their way through the criminal justice system. Just because their needs present an additional challenge does not mean that they should be overlooked. On the contrary, ignoring them is likely to lead to future interventions being needed following more serious offences, which in turn will be more expensive to provide.

I turn to Amendment 174, which is also linked to amendments that I have tabled later in the Bill. It is designed to emphasise the point that although imprisonment is a punishment awarded by the courts and prisons are places in which that punishment is served, if the public are to be protected by the prevention of reoffending, rehabilitation must be a key component of all prison sentences.

[Lord Wigley]

My Lords, in earlier debates on the Bill we discussed the need to ensure equality of arms before the law and the wider principles surrounding access to justice. I support Amendment 172B, to which the noble Baroness, Lady Quin, has spoken so effectively, and the linked amendments, all of which promote a particular aspect of access to justice—that is, the need to ensure that people of all abilities are able to understand the criminal justice system, be they the victims or the perpetrators of crime. I warmly support the points made by the noble Lord, Lord Ramsbotham, and we are all indebted to him for bringing his wealth of experience to our debates on these matters.

Amendments 172B and 173 would amend Clause 61, which places a duty on courts to give reasons for, and explain the effect of, sentences that they hand down to perpetrators. The clause outlines a duty on the court to explain in “ordinary language” the court’s rationale for arriving at a particular sentence. “Ordinary” is a relative term. The amendments add that the language should be,

“appropriate to the intellectual ability and understanding of the individual offender”—

that is, to ensure that the court recognises the need to adapt its means of explanation in cases where an offender has a disability or learning difficulties. I should declare my interest as a patron of Mencap Cymru.

Our justice system should be both accessible and comprehensible, and steps should be taken to ensure that victims and perpetrators of crimes understand the implications and the gravity of the crime committed. If this is not done, there is every risk that the perpetrators in question may not be amenable to successful rehabilitation and will regress into committing similar crimes in future.

Amendment 178ZA would amend Clause 86 of the Bill, which makes provision for a court to impose conditions on a child who it has remanded to local authority accommodation. The clause also states that the court may impose certain requirements on the child if they are being granted bail, including, in some cases, electronic monitoring. Under subsection (7), it is stated that when a court imposes conditions on a child or varies those conditions, the court must explain the rationale behind this in “ordinary language”. There again, that troublesome phrase crops up. Amendment 178ZA would clarify that the language needs to be appropriate to the intellectual ability and understanding of the individual child. The necessity of using appropriate language is surely overwhelming when considering situations that hinge on the well-being and the education of impressionable children.

Amendments 181 and 182 centre on a related, though slightly different, issue. They would amend Clause 118, which itself makes amendments to the Prison Act 1952 in respect of the employment and payment of people in prison and those detained in remand centres, secure training centres and young offender institutions. Subsection (2) provides that the Secretary of State may continue to make rules about the employment of persons who are detained in secure training centres or young offender institutions. Subsection (4) inserts a new section into the 1952 Act which similarly confers new powers on the Secretary of State to make rules about the employment of prisoners.

Perhaps not enough attention is always focused on the importance of employment in prison. Society is still divided on the purpose that prisons fulfil. However, if we are to take steps to ensure that prison is anything other than an expensive means of giving society a break from criminals, we must invest time and effort in ensuring that those incarcerated use that time constructively to learn about the benefits of a life without crime and to understand the implications of the crimes they have committed. This avenue should be available to all prisoners. That is why Amendments 181 and 182 seek to add further paragraphs to this clause to ensure that the Secretary of State must also make rules about,

“(c) the availability of support to carry out employment; and

(d) the availability of support to understand the terms of employment in prison”.

These amendments, if accepted, would go towards certifying that all those incarcerated in our criminal justice system have the same opportunity for rehabilitation regardless of ability.

Finally, Amendments 184 and 185 seek to amend Clause 124, which sets out the anatomy of youth cautions. Clause 124 repeals Sections 65 and 66 of the Crime and Disorder Act 1998, hence abolishing the final warning scheme. It instead inserts new Section 66ZA, which establishes a new out-of-court disposal for young offenders—the youth caution. New Section 66ZA sets out that a constable may give a child or young person a youth caution if the youth has admitted to committing an offence and if the constable decides that the youth should not be prosecuted. The section outlines that if a constable gives a youth caution, they must ensure that the implications of the youth caution, and the reasons for issuing it, are explained in—once again—“ordinary language” to the person or, if they are 17 or younger, the appropriate adult accompanying them.

Amendment 184 would leave out “ordinary language” and insert instead:

“in an accessible way that may include, but will not be limited to, simple use of language”.

The amendment therefore has the effect of ensuring that most disabilities are catered for. Amendment 185 also ensures that the constable would have a duty to explain the reasons for issuing the caution, as well as the implications of the caution, to an appropriate adult not only if the child is younger than 17 but if the child,

“requires support to communicate or understand the process”.

This would make sure that children who have a disability or impairment which would hinder their understanding of the process would not be left disfranchised by the criminal justice system simply because of their age.

Taken together, these amendments succeed in widening access to justice and expanding the clarity of our justice system for people with disabilities. It is only common sense that they should be taken on board. In no way do they undermine the objectives of the Government in the Bill. I urge the Minister to accept them or, at the very least, to undertake to consider them between now and Report to see how these objectives can best be achieved.

21:45

[Lord Dholakia]

My Lords, my Amendment 172C is grouped with Amendment 172A, among others. I agree very much with almost all of what noble Lords have said on these amendments. I particularly thank the noble Lord, Lord Ponsonby of Shulbrede, for rightly seeking to put the victim very much at the centre of the process; victims must be informed about what has happened.

The purpose of my amendment is not to miss out a very important element in the sentencing process. It would retain the duty on courts passing custodial sentences to give reasons explaining why they consider it necessary to pass a sentence of imprisonment. It would not take away any powers from the courts to prescribe a custodial sentence. The intention is to provide an explanation which informs people about the purpose of passing a custodial sentence.

My amendment goes further than Amendment 176ZB, tabled by my noble friends Lady Linklater and Lord Thomas of Gresford. Their amendment, which I also support, is limited to sentences of less than six months, whereas mine would go further and apply to sentences of six months or more. Let me explain why.

In general, I welcome Clause 61. It replaces the current complicated requirements on courts to explain the implications of and reasons for their sentences with a simple requirement that they should explain the sentence in ordinary language—a point made by many noble Lords. This is a welcome simplification of the court’s duties at the sentencing stage.

However, I have one concern about this change—namely that it abolishes the requirement for courts passing prison sentences to explain why they consider that the offence requires a custodial sentence. Depriving offenders of their liberty by passing a custodial sentence is a uniquely serious decision that is in a different category from imposing even the most intensive community sentence. A prison sentence often means that an offender loses his or her accommodation. Many offenders sentenced to custody lose their jobs. Others have their education disrupted. All too often, custodial sentences contribute to the break-up of families. Community sentences, even intensive community sentences with significant restrictions on the offender's liberty, do not produce those results. I submit that a court should have to explain its reasons for concluding that, despite those negative consequences, it nevertheless believes that only a custodial sentence can be justified.

Although I support my noble friends’ Amendment 176ZB, I consider that this duty to give reasons should also apply to sentences of six months or longer. There are often occasions on which courts decide that it is more productive to impose a community sentence with, say, a drug rehabilitation requirement or a sex offender treatment programme than to pass a one-year or even a two-year custodial sentence. A one-year or two-year sentence means that the offender actually spends six months or a year in custody before release. He or she then returns to the community, usually without having been through a treatment programme that could help to reduce reoffending. In these cases, too, courts should have to exercise the discipline of giving reasons for their conclusion that only a custodial sentence can be justified. The discipline of having to give reasons for passing a custodial sentence helps to concentrate sentencers’ minds on the gravity of their decision. This is designed to help ensure that custodial sentences are imposed only when there is no reasonable alternative.

I therefore hope that the Government will think again and decide to retain this important requirement. My amendment and that of the noble Lord, Lord Ponsonby, bring transparency to the sentencing process, and I am sure that the Minister will, on reflection, consider this to be a sound case.

[Lord Goldsmith]

My Lords, this group of amendments touches on a number of important issues. I have great sympathy with what my noble friend Lady Quin and the noble Lords, Lord Ramsbotham and Lord Wigley, said on those issues. I shall not touch on those matters as the noble Lords have greater experience. I was slightly alarmed to hear what the noble Lord, Lord Ramsbotham, said about the intention to take away prosecutors from conditional cautions. We will consider that issue later in the Bill and I look forward to hearing just what the proposal is and the justification for it.

I want to spend a moment or two on the amendment moved by the noble Lord, Lord Ponsonby of Shulbrede, which does a great service to the Committee by focusing attention on the need for the victim to know in appropriate ways what the outcome of the case has been. The victim, although not like a plaintiff in a civil action, is after all still the person to whom the offence happened, and it is right that the victim should therefore be told what happened, and told appropriately. I also very much agree with the noble Lord that generally that duty should be on the prosecution.

It is important that the public and victims see that prosecutors are there to some extent as an interface between them and the court and justice system, and that prosecutors focus on the needs of victims—as well, obviously, as on the professional requirements of their job to bring and prosecute cases fairly.

My question about the amendment, while fully supporting the spirit and intent behind it, is whether it is necessary for that to be dealt with by way of imposition of a duty and a new form of order. I say that because I would have hoped that, by now, prosecutors would know that they have that responsibility. I will be interested to hear in due course from the Minister and the noble Lord, Lord Ponsonby, who has promoted the amendment, whether it is believed that prosecutors are not doing that.

There are one or two reasons why a duty may give rise to difficulties. The prosecution may not always be a professional prosecutor. Sometimes the prosecutor may be a private prosecutor. It may be inappropriate for a number of reasons to impose the same duty on a private prosecutor—a neighbour in a neighbour dispute, for example—as on a professional prosecutor. There may also be victims who need particular care in explaining to them the outcome of the case, and that may need professional skills.

I am also concerned that, by imposing a particular duty of information on prosecutors, we do not take away the need for them to provide other information. Reference has already been made in this short debate to the need for prosecutors to keep victims informed of the progress of cases. In my day, we attempted to deal with that and provide flexibility by creating a victims’ charter, which was intended for prosecutors to sign up to under the guidance—or, indeed, direction—of the Attorney-General, which would cover progress of the case and, as the noble Lord, Lord Ponsonby, said, its outcome. That may be a better system to achieve what he wants.

As I said, I look forward to hearing what the Minister has to say. I entirely agree with the fundamental point that the victim should be informed of the outcome appropriately and that the prosecution should have a duty to do so.

[Lord Bach]

My Lords, this is the first debate of many, I suspect, on Part 3. Part 3 is entitled “Sentencing and Punishment of Offenders”, and Chapter 1 is entitled “Sentencing”. Luckily, there does not seem to be a part entitled “Punishment of Offenders”, but we know that that was a late introduction to the Title of the Bill many months ago.

I shall be very brief indeed. The Committee has been lucky enough to hear speeches from many noble Lords, all of whom have great experience of the criminal justice system in the best possible way—by being either magistrates or experts for many years in the work of the system. We are very lucky in the Committee and the House to have them to give us the benefit of their wisdom on it.

Part 3 is very important. The Opposition certainly do not intend to be difficult in any way about this part. If we think the reforms are wrong, we will say so; if we think they are right, we will happily agree with the Government. We know from our experience of government that this is not an easy area to deal with. Sometimes Governments have to be tough in the face of what seem overwhelming arguments from Parliament; and sometimes Governments can be too tough and not take note of sensible recommendations made.

From listening to what has been said on the various amendments tonight, some sensible suggestions have been made—none of them revolutionary or radical—to change the system. Clause 61 is liked; the noble Lord, Lord Dholakia, said that he approved of it, and I suspect that that is true of others around the Committee.

The only point that I will make concerns victims. I think that the Statement made by the right honourable gentleman the Lord Chancellor in another place on Monday regarding the Criminal Injuries Compensation Authority, as it is now known, and the change of policy on some of the tariffs may have been quite disappointing for some victims and victim groups. I am sure that does not mean that this Government are in any way less committed to looking after victims’ interests than were the Government of whom I was a member. I know that all those who talk about fair play for offenders—making sure that the system includes rehabilitation for them and a chance to do better—have exactly the same feeling about victims as the rest of us.

I do not want to go into any of these amendments tonight, and I am quite sure that the Committee is with me on that. However, I do want to hear the Minister’s response to the points that have been made. I hope that he is sympathetic to these amendments. I am sure that none of them will be pushed tonight but some important points have been made and we look forward to his reply.

[Lord McNally]

My Lords, I thank the noble Lord, Lord Bach, for the constructive way in which he has responded. I hope that Part 3 of the Bill can draw on the experience and expertise around this House. I see a number of old friends and familiar faces in this area of policy. I am also grateful to a number of noble Lords for having the chance to discuss these issues in advance of them reaching the Committee. That has been of great help in understanding where they are coming from with their amendments.

Before I turn to the amendments, it may assist the Committee if I explain what Clause 61 intends to do. It replaces the current Section 174 of the Criminal Justice Act 2003 with a revised section that simplifies the existing duty to give reasons for, and explain, the sentence.

In response to the consultation paper Breaking the Cycle, the judiciary, among others, said that the current statutory requirements are overly prescriptive and have become increasingly complex as additional requirements have been added. As a result, the current legislation is difficult to find and difficult to understand, and in the day-to-day operation of the court can simply become impractical. The Government wanted to address these problems, which is why we created in Clause 61 a replacement Section 174. It has been simplified and shortened and consolidates the various changes made to the section since 2003. In doing so, however, we have retained the important statutory requirement placed on courts to explain the effectiveness of the sentence and, crucially, the duty to state in open court and in ordinary language, in general terms, the court’s reasons for deciding on the sentence. This means that not only the offender but victims, witnesses and the public can see that justice is being done.

A balancing act is required here. On the one hand, we need to ensure that courts make very clear why a sentence is being imposed and what the effect of the sentence is. On the other hand, we need to avoid burdening courts with unnecessary and prescriptive provisions that are very often irrelevant in particular cases and which, rather than clarifying the position, simply confuse victims, witnesses and offenders.

I turn to the details of the amendments and begin with Amendment 172A in the name of the noble Lord, Lord Ponsonby. I start by saying that I take the point made by the noble and learned Lord, Lord Goldsmith, about greater transparency. He will remember that when he was Attorney-General there was an obligation on victim care units jointly run by the CPS and the police to explain sentences, regardless of whether the case was brought by the CPS or was a private prosecution. The Ministry of Justice has also embarked on a transparency programme, publishing data about the outcomes of court cases. We hope that being able to see the progress and outcome of cases will give people confidence.

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Our approach to the amendment in the name of the noble Lord, Lord Ponsonby, is that we do not believe that it is necessary. First, we would not want legislation to suggest that a court could simply avoid its own obligation to give reasons for the sentence in open court by delegating this to the prosecution. Secondly, and more importantly, there is already an obligation on witness care units, which are run jointly by the police and the CPS, to inform and explain sentences to victims under the victims’ code. The victims’ code is very clear. Paragraph 6.8 says,

“The joint police/CPS Witness Care Units must explain to victims the meaning and effect of the sentence given to the offender in their case, and respond to any questions the victim may have”.

I turn now to Amendment 172B in the name of the noble Baroness, Lady Quin, and Amendment 173 from the noble Lord, Lord Rix. I was grateful for the opportunity to meet the noble Lord in advance of this Committee and to benefit from his expertise and that of Mencap in issues affecting people with learning difficulties. I understand the thinking behind these amendments. My concern, however, is to make this duty on courts as simple and as practical as possible for the million-plus sentencing decisions made each year. I want to avoid the problem of overly prescribing in legislation how courts should go about explaining the reasons for, and the effect of, a sentence. With that in mind, I do not think it is necessary to complicate the wording of the duties in the new Section 174.

The use of the phrase “ordinary language” is lifted directly from the Criminal Justice Act 2003 and is, by definition, meant to include language that most people can understand. However, I understand the point made by the noble Baroness, Lady Quin, about people’s comprehension of even ordinary language. I heard a programme the other day about training apprentices in Stockport, my old stamping ground, and the difficulties of 16 and 17 year-olds in training who did not understand what “catalyst” meant. There are some worrying things in that respect and I am sure that that happens even more in the courts.

The current duty requires that the explanation, as a minimum, should be in ordinary language. It does not therefore stop the court going further where required. So I hope the noble Lord will accept that we should retain that minimum standard, which should apply in the vast majority of cases, while allowing discretion to go further if required. I very much appreciate the advice that Mencap provided on the various techniques that could be used to explain a sentence to people with learning difficulties. That will be used in the training of judges and magistrates, and I intend to pass that on to the bodies responsible for that training.

Amendment 172C, from my noble friend Lord Dholakia, would reinsert into the revised Section 174 a requirement on a sentencer, when imposing a custodial sentence, to refer back to Section 152 of the Criminal Justice Act 2003. That is one of the requirements that the simplified version of Section 174 has removed because we believe that it is unnecessary and complicates the duty on sentencers. The revised duty to give reasons simplifies the provision, but it does not mean that a sentencer does not have to say why they have imposed a custodial sentence. That duty remains.

On Amendment 174, in the name of the noble Lord, Lord Ramsbotham, I understand where the noble Lord comes from, particularly about rehabilitation. I share his enthusiasm for rehabilitation. Unless we successfully build rehabilitation into our criminal justice system, we condemn ourselves to an ever-upward lift in prison population, a prison population that will be warehoused and that will leave us with the problems of reoffending and no improvement in the situation. Certainly we must build rehabilitation into the policy. However, for many people punishment, public protection or reparation will be important, so we do not think it helpful to pick out one purpose of sentencing for special attention when explaining a sentence. Some sentences will not have a particularly strong rehabilitative element: for example, a fine for a minor traffic offence. Therefore, while I recognise the intention behind the amendment, it is not necessary.

Amendment 177 would place a duty on a public body imposing requirements in community orders to take all reasonable steps to explain the terms of the requirements to the offender. I understand the intent of the amendment, but again I question whether it is necessary. Any offender sentenced to a community order will have the effect of the sentence explained by the court. The explanation will include what can happen if they do not comply with the order. The legal representative of the offender is also likely to explain the implications of the sentence. Finally, the probation service will always explain at the outset what the sentence is and what is required by the offender.

I went recently to observe Isleworth Crown Court for a day. One case that came up was that of a young man with learning difficulties. I was massively impressed by the care taken by the judge to make sure that the young man fully understood what was happening to him, why it was happening and what would happen next. Many concerns expressed today have much more to do with judicial training and the training of staff, and building awareness of this into the system. The comprehension issue and making sure that people with learning difficulties are not left behind are very much part of what we are trying to do. Where we disagree with part of the House is on whether all this should be written into a Bill.

I will mention briefly the other amendments that relate to later clauses on youth remand, prison work and conditional cautions. Again, we believe that they are unnecessary. Youth court judges, prison officers, probation staff and the police are well versed and trained to deal with a range of offenders. Amendments 178ZA and 178ZB concern youth remand. Every court that deals with a child or young person who is brought before it has a duty not only to have regard to the principal aim of the youth justice system, which is to prevent offending or reoffending by a person under 18, but to have regard to the welfare of the child. These duties must include a duty for the court to explain its decisions not just in ordinary language but in language that can be understood by the young person.

Amendments 183, 184 and 185 cover cautions. It is as crucial to the integrity and fairness of out-of-court justice as it is to sentencing that individuals fully understand the meaning and implications of receiving a caution. Operational guidelines rather than legislation are the right place for such safeguards. A constable cautioning an offender who is accompanied by an appropriate adult because they need support to understand or communicate will also explain the effect to the appropriate adult. On that basis, again, we do not consider the amendment necessary.

Finally, Amendments 181 and 182 concern prison work. Existing guidelines already contain sufficient safeguards to ensure that the needs of prisoners with disabilities are met. The Prison Service instruction Ensuring Equality makes it clear that all managers and staff must ensure that efforts are made to identify whether a prisoner has a mental or physical problem of any form. Governors must consider what prisoners within a range of disabilities might reasonably need, and must ensure that reasonable adjustments are made for disabled prisoners.

I cannot accept any of these amendments. However, I can say that the debate was useful. As I said, I can make no promises, but I will look at the points raised in this debate to see whether there are any parts of the concerns on which we can give satisfaction, either by the statements I make from this Box, in guidance and training to the various authorities within the criminal justice system or even by amendment. On those terms, I hope the noble Lord will agree to withdraw his amendment.

[Lord Ponsonby of Shulbrede]

My Lords, I thank noble Lords who supported my amendment, including my noble friend Lady Quin, my noble and learned friend Lord Goldsmith and the noble Lord, Lord Dholakia.

Regarding what my noble and learned friend Lord Goldsmith said, my understanding is that there are currently ad hoc arrangements post conviction about whether victims should be supported, and there are various organisations that do that. There is also the witness service and the code of practice for victims of crime. However, they are ad hoc and not a comprehensive system.

As usual, the noble Lord, Lord McNally, was more accommodating when he was extemporising than when he was reading from his notes. What he read out regarding my amendment was that I was seeking to avoid the obligation on the courts to explain sentences. That is not remotely the case, as I am sure he realises. Nevertheless, I take his extempore comments as a positive sign that he is willing to look at all these amendments to see what can be done. In that spirit, I beg leave to withdraw the amendment.

Amendment 172A withdrawn.

Amendments 172B to 174 not moved.

House resumed.

House adjourned at 10.13 pm.