Legal Aid, Sentencing and Punishment of Offenders Bill
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Lord Bach
My Lords, one of the advantages of these debates is that we will hear proposals for new ways to divert people from custody. Any amendment that carries the names of both noble Lords, Lord Adebowale and Lord Ramsbotham, needs careful and sympathetic attention because both their histories in helping particularly young people who find themselves in potential conflict with the criminal justice system are proud records, and they have a lot to teach us. We are sympathetic to the idea behind this amendment, not least because of its reported success in the pilot areas where it has been tried out.
Noble Lords will know that Section 177 of the Criminal Justice Act 2003 includes a series of requirements for persons aged 18 or over who are convicted of an offence. Those requirements include,
“(e) a curfew requirement … (k) a supervision requirement”,
and the list goes all the way to paragraph (l). There are all sorts of different requirements, and there has been no reticence to acknowledge that divergence from custody and the treatment of the underlying issues—whether they be mental health or socioeconomic—are important and can be more effective than custody. It is not legislators who have been afraid of proposing alternative measures.
One of the problems is the availability of schemes which are often administered by local authorities, the probation services, youth offending teams or other diverse, multi-departmental agencies. The idea for a new community supervision requirement seems an amalgamation in one sense of powers (e) and (k) from the list that I read out earlier—but probably because it is a combination of the two, it is the stronger for it. It is a recognition that, in that transition to adulthood, a community sentence that helps to socialise people to realise that what they are doing is wrong can be a powerful and tough sentence.
There are two elements to the amendment that I want to touch on briefly. As has already been said, there is a growing recognition that there is not a cut-off point at 18 for beginning crime or carrying on with crime. The years between 14 and 24 are generally considered prime offending years, with delinquent behaviour tending to start in early teenage and tailing off at age 21 to 24. Perhaps these things are not entirely surprising; but because of them, it seems sensible to choose the ages between 18 and 25 for this new requirement. We are sympathetic to the amendment. If it has been as successful as has been claimed in the debate, the Government should be sympathetic, too. I look forward to hearing from the noble Baroness.
Baroness Northover
My Lords, I thank the noble Lords for their amendment. Young adult offenders are a particularly difficult group and outcomes are not always as we would wish. I have a great deal of sympathy with the intentions here.
The amendment proposes a new requirement of the adult community order called,
“an intensive community supervision requirement”,
available for offenders aged 18 to 24. It is clearly intended to mirror the intensive rehabilitation order available for juveniles. I agree that we need to reduce the level of reoffending by young adult offenders and that more intensive engagement may very well have a role to play. However, we need to find ways of achieving this without further complicating the legislative framework and constraining how the needs of this age group will be addressed.
Affordability is, of course, critical. If we were to create extra burdens through statute by delivering intensive interventions, supervision and surveillance to this age group, the Government would not have the resources to deliver what we prescribed. We want to see more effective and efficient use of resources, with payment by results and competition being used to secure improved outcomes for 18 to 24 year-olds and other offenders. A range of interventions may be used to achieve these outcomes, and we wish to avoid prescribing which approach must be used with different age groups.
I heard about the problems at Isis, and the MoJ will be commenting in due course. I also note what noble Lords have said about intensive alternatives to custody. The Green Paper Breaking the Cycle said that the Government were looking at how the IAC principles could be extended nationally. The analysis of the reoffending rates of offenders who took part in the IAC pilots is under way at the moment. We will write to noble Lords as soon as the results are available. I hope that is useful to noble Lords.
The spirit of the amendment ties in very well with work that we are already doing to improve community sentences generally. In addition to provisions in the Bill to strengthen community sentences, we want to deliver a step change in the way they operate. They must address the problems that have caused the offending behaviour in the first place: the drug abuse, alcoholism and mental health problems that noble Lords have referred to. They must also punish properly and send a clear message to society that wrongdoing will not be tolerated. We are hoping to provide sentences with a much improved community sentence offering a robust and credible punishment to deal with both young and old offenders. To this end, we are currently conducting a review of adult community sentences and hope to publish a consultation document shortly. I encourage noble Lords to feed into that. In the light of my comments, I hope the noble Lord will accept that this is not a necessary step to take at this stage and will accordingly withdraw his amendment.
Lord Adebowale
Has there been any cost comparison between the IAC model and the cost of keeping a young person in prison and the concomitant cost of recidivism? The Minister seemed to imply that there is a cost implication in the IAC. Has any work been done on the comparison?
Baroness Northover
We are acutely aware of the cost of keeping people in prison. Obviously it is not only for cost reasons that you try to keep people out of prison, but given that it is a costly route, other measures can be measured against it.
Lord Adebowale
I am not quite sure that that is the answer. Like many noble Lords who have amendments to this Bill, I feel that we have not hit pay dirt here. We have what I, and I think many others, consider to be an excuse remover in terms of the IAC model and the leadership required, which my noble friend Lord Ramsbotham mentioned in his speech. I look forward to further conversations with the Minister on this issue. I do not feel it will go away and I do not want to be here in a couple of years’ time making the same speech as recidivism goes through the roof. However, if the Minister is open to a conversation with me and my noble friend Lord Ramsbotham on that matter, I beg leave to withdraw the amendment.
Lord Bach
My Lords, our time in government retreats into the mists of time day by day, month by month, and my memory fails. I certainly am not in a position to answer the specific question that the noble Lord asks, but to say that there were not concerns about the probation service at the time would be to tell an untruth. Some of the cuts that our Government felt were necessary to make—as do the present Government, too—related to the probation service. One of the achievements of my then ministerial colleague, the honourable Maria Eagle, was to make sure that the cuts were not so great as originally planned and that the probation service had some extra resources that it was not expecting. However, I have to concede that it was not a period, particularly in the latter years, when the probation service was getting as much money as it needed to deal with the problem.
On costs, I think that the noble Lord’s noble friend Lady Linklater had it right, as did the noble Baroness, Lady Howe. Comparing costs is very difficult throughout the Bill, not least in this particular area. I am sorry that I cannot help the noble Lord with more detail.
Baroness Northover
My Lords, I was very struck by the noble Lord, Lord Ramsbotham, dividing things between those which were desirable and those which were essential, and pointing to the need to prioritise. It has struck me that this Bill is above all about prioritising. It would be wonderful to be in government when there was a great deal of money to lubricate things but, even when that is the case, not all problems are corrected. We have just heard of an earlier period where, certainly during the early years, there was much more money to lubricate things yet problems persisted.
Lord Beecham
My Lords, the Minister regaled us earlier with some literary allusions, and Dickens featured largely in those. I would like to follow his example—something which I am not always disposed to do, but on this occasion I will—by making another literary allusion to the famous Sherlock Holmes story concerning the dog that barked in the night. Watson pointed out that the dog did not bark and Holmes said that that was the mystery. The mystery about restorative justice is that it is not yet in the Bill. I hope that as a result of tonight’s deliberations and following the line of thinking of the noble Lord, Lord Carlile, the Bill will include references to restorative justice for precisely the reason that he gave—namely, it would send a very clear signal of the Government’s expressed intent to promote restorative justice.
As has been indicated already, restorative justice has been around for a considerable time and has proved successful. Some 85 per cent of victims who have been through the process are satisfied with it. That is a very high proportion, particularly in these circumstances. The Home Office estimates that restorative justice has reduced reoffending by some 14 per cent. Again, that is a very significant reduction. To follow again the point made by the noble Lord, Lord Carlile, financial savings can be made in this respect. The Restorative Justice Council estimates—presumably on the basis of an equivalent 14 per cent reduction in reoffending—that in the case of adult offenders something like £185 million would be saved simply as a result of the reduction in offending quite apart from other savings that might arise. Therefore, we are talking about significant figures and a significant impact.
Mention of the adult aspect of this matter encourages me to endorse very strongly the reference of the noble and learned Lord, Lord Woolf, to the need to spread the concept across the age range. At the moment, it is mainly concentrated on children and young offenders. Only 1 per cent of adult offenders go through a restorative justice process. Expanding that would be significant and would lead, in the view of the Restorative Justice Council, to the savings that I have mentioned.
The Government have expressed their enthusiasm not only through the Minister’s words but in the Green Paper, Breaking the Cycle, which was published some 14 or 15 months ago. That document contains positive references to restorative justice, describing it as a,
“well established concept in youth justice”,
but pointing out that,
“restorative justice for adults is sometimes viewed as an afterthought to sentencing”.
The Green Paper went on to say that the Government were looking at how they might change that, whereby in appropriate cases restorative justice became,
“a fundamental part of the sentencing process”.
The paper stated that this was,
“likely to involve using restorative approaches as a better alternative to formal criminal justice action for low level offenders where the offender and victim agree the outcome”,
including apologising, replacing items or making good damage and so on.
The Green Paper continued:
“Secondly, in instances where a court case is likely to lead to a fine or community sentence, [the Government] will explore how it could best be used at the charging stage”.
“At the charging stage” goes beyond the amendments before us, and it is an interesting concept. The Government said that they would explore how best it could be used then, and pointed out that, if used, restorative justice,
“would be delivered as part of an out-of-court disposal, for example as a condition attached to a conditional caution”.
Again, a variety of action might be agreed—paying compensation to the victim or making good the offence in other ways. I do not know whether the Government have pursued that to any significant extent. Perhaps the noble Baroness who is to reply to the debate might comment on that. If not, she might follow up the point made at paragraph 80 of the Green Paper to see exactly how far the Government have gone. There is considerable potential in all this, and the amendments certainly should assist the process.
Restorative justice is usually discussed in terms of the face-to-face encounter between victim and offender, and that is perhaps the most obvious use of the term. However, it can be used in the broader sense of what is sometimes also called justice reinvestment—that is to say, in schemes such as community payback, whereby instead of individual reparation the offender is putting something back into the community, and not necessarily into the community that has suffered directly from his or her depredations, but into the community generally.
There have been some encouraging schemes around this concept. In my part of the world, two schemes in particular stand out that involve the successful restoration by offenders of two Victorian parks—Albert Park in Middlesbrough and Saltwell Park in Gateshead—where in both cases mainly young offenders worked under supervision and made a significant contribution to a local amenity as part of their punishment. The process had two effects: first, it of course gave the community an asset; but, secondly, it gave the offenders a skill and an experience of useful employment. Restorative justice can be applicable in that wider concept. In my own ward of Newcastle City Council there is a church with a large graveyard in which many local dignitaries of the 19th century are buried. It was in a poor state and there is now an ongoing restoration scheme that is facilitated in part by a group of offenders on a community payback scheme. That is another good example of restorative justice in that broader sense.
Both approaches to restorative justice are potentially valuable. I hope that the Government—in addition to endorsing the concept, as I am sure the Minister will—will ensure that the concept is enshrined in statute to give an impulse to its spread in practice, particularly but not exclusively among adult offenders. This would also ensure that the good intentions of the Green Paper, with which we on the opposition Benches certainly agree, were translated into reality at both individual and community levels.
I congratulate noble Lords who brought this matter forward in these amendments. I hope the Government see their way to accepting these amendments and, arguably, to expanding them in the way that the Green Paper appeared to advocate.
Baroness Northover
My Lords, where but in the Lords would we be having such a wonderful debate, run through with humanity, after 10 o’clock at night?
I acknowledge noble Lords’ support for the principle of restorative justice. The Government are indeed committed to delivering greater use of restorative practices across the criminal justice system. It is one of our key priorities. For example, we have already begun providing more than £1 million-worth of funding to youth offending teams, probation trusts and prisons for restorative justice training and practice standards, and we are currently setting up neighbourhood justice panels based on restorative principles. It is excellent to have noble Lords’ support for restorative justice. However, the Government believe that the amendments are unnecessary, although we are sympathetic to the intentions behind them.
On the amendments in the name of the noble Lord, Lord, Lord Ponsonby, as I think he realises from what he said in his speech, a court already has sufficient powers under the existing requirements of the youth rehabilitation order and community order to make restorative justice activity a formal part of those orders. The activity requirement allows the court to consider the use of restorative justice where it has been advised that the victim and offender have agreed to take part and provision is in place to deliver such a requirement. The amendments make no provision for ensuring that both the offender and the victim are completely prepared to participate in a restorative justice process. That is crucial to the restorative ethos and to prevent victimisation, but I understand what the noble Lord is aiming at.
Turning to Amendment 172DAA in the name of the noble and learned Lord, Lord Woolf, the courts already have powers to adjourn sentencing for the provision of restorative justice to be undertaken if they believe it will inform the sentencing process. I hope that the noble and learned Lord will be reassured that the Government are looking at taking that process further to allow for restorative outcomes to help inform the courts as to what appropriate sentence should be handed down.
However, the amendments do not contain sufficient safeguards to prevent the ineffective use of remand resources to adjourn sentencing and hold offenders in custody in cases where the victim does not want to participate. The amendments also do not seek to impose a restriction on the length of remand, which poses additional risks not only to delay in court time but also around the proportionality of remanding an offender in custody for a significant length of time without sentencing.
Therefore it is much better for the courts to retain discretion to decide when and in what circumstances restorative justice can be effectively undertaken, although we understand people's concern to ensure that it is high on the agenda. In practice, that would most likely need to be in cases where the court has already been notified of the willingness of both the victim and the offender to participate in the restorative justice process.
As I mentioned, it is crucial that the victim should have the opportunity to consider and undertake restorative justice if they so wish, and the offender must also be completely willing to participate—which the proposed new clause does not provide for. Any circumstances in which the offender is not completely prepared to participate in restorative justice—which cannot be signalled simply by a guilty plea—presents serious risks for the victim being revictimised because the offender is falsely or forcibly engaged in the process.
We have heard a great deal about the potential of this approach, which is of course very encouraging. Before we can make any determination as to whether further, specific legislation is necessary for restorative justice, we must make significant steps to build capacity to deliver it. Once we have begun to make greater strides in embedding restorative justice across the system and helping areas to put necessary provisions in place, we will reflect carefully both on whether to widen the application of restorative justice using the law and on how to do so, if it proves necessary to take this approach. Although I understand noble Lords’ enthusiasm to enshrine this now in statute, there is work to do before we reach such a stage—persuasive though noble Lords undoubtedly are, and we certainly agree with their principles. Although we share a common interest in the increased use of restorative justice, at this stage I nevertheless urge the noble Lord to withdraw his amendment.
Lord Thomas of Gresford
I support the noble and learned Lord. I was surprised to hear the Minister say that it is very important that the victim should consent. Amendment 177DAA states that,
“the court may remand the case in order that the victim shall be offered the opportunity to participate”.
It does not say in any sense that this will be imposed on the defendant.
Baroness Northover
I refer noble Lords back to the concluding remarks that I made. I fully understand that amendments may not be phrased quite as we might wish but I hope that I addressed the principles. We are very supportive of restorative justice. I gave reasons why we feel that we want to take this further forward and see it in practice before building it into statute. My noble friend Lord Carlile anticipated that I might say something like that, and I expect that the opposition Front Bench thought likewise. We can continue to discuss this. We accept the principles and wish to take it further forward. Whether that means that it will go into statute is another matter. I hope that on that basis the noble and learned Lord will withdraw his amendment.
Lord Woolf
Taking into account what has just been said in coming to my conclusion, at this stage I beg leave to withdraw the amendment.
Baroness Northover
My Lords, I have listened carefully to the case made by the noble Baroness, Lady Lister, in support of this amendment. I am also aware of the arguments made by Citizens Advice and the Z2K Trust. There are essentially two issues as regards the amendment. The first relates to the current law relating to the power to withdraw warrants for non-payment of fines, which has not been particularly explored in these discussions but to which I will return.
The second relates to the practice of bailiffs enforcing those warrants particularly against fine defaulters, especially those who may be considered to be particularly vulnerable. I understand the concerns that many people have about bailiffs enforcing warrants. However, many people are concerned at the level of fines that remain unpaid. There is a balance to be struck between the need to have an effective way to collect unpaid fines, and therefore to enforce the orders of the court, and the need to allow for some flexibility in the treatment of fine defaulters.
The national standards for enforcement agents were revised last month. They set out specific standards—for example, for dealing with vulnerable and socially excluded people—and I hope that the noble Baroness has seen them. It includes a list of those who may be potentially vulnerable, including the elderly or people with a disability or where someone has a difficulty in understanding English. In addition, the contracts with bailiffs include several conditions relating to their behaviour and treatment of vulnerable people. The Government remain of the view that the national standards, guidance and contractual arrangements are the best and most effective way to ensure the appropriate use of enforcement powers.
With regard to the first issue under the amendment, which relates to the legal powers to suspend or withdraw warrants, the Government think that this area deserves further consideration. We do not think that there is any doubt that a court has the power to suspend a warrant that it issues but there is at least an ambiguity about the question of whether a court or a fines officer can withdraw or suspend a warrant issued by a fines officer. I am willing therefore to take away these points and to consider whether there is a need for a change to the primary legislation and whether that change can be made in this Bill or at a later stage. In the light of that, I hope that the noble Baroness will withdraw her amendment.
Baroness Lister of Burtersett
My Lords, I thank the noble Lord, Lord Thomas of Gresford, for his support and for another cautionary tale that he related to good effect. I would remind noble Lords of the very strong language he used. He talked about “confusion” and people being “bullied” and that it is a “disgrace”. I think that those words are warranted. I also thank the Minister for her response, in particular for leaving open the door on the second part. In taking away these issues, I wonder whether she would be willing to commit to meeting with the Zaccheus 2000 Trust and Citizens Advice to talk through the possibilities. The question is: if not in this Bill, in which one? It seems that we have an opportunity here and the Minister has shown an openness of mind that perhaps there is a case for clarifying this in law. I hope that the noble Baroness will seriously consider it for this Bill because another opportunity may not come up for some time. In the mean time, we may see other cases of people being bullied or rebuked and very vulnerable citizens being put into difficult situations. I do not think we should delay when we have an opportunity in this Bill. However, given what the Minister has said and the lateness of the hour, I beg leave to withdraw the amendment.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, intimidation of witnesses is itself an offence, so one has to put these things into perspective.
The noble Lord mentioned a Keeling schedule. I note the point that he has made and shall take advice on it.
I am slightly amazed that either Justice or the noble Lord has cavilled at this proposal. It is said that decisions regarding remand and about sentences are completely separate. So they are, as the law stands; the question asked by this government proposal is whether they ought to be.
The Government consider that, in general, defendants should not be remanded in custody where it is apparent to the court that there is no real prospect of their being imprisoned if convicted. Let me be clear: this is not any Alice in Wonderland idea of sentence first, verdict afterwards. The court will not engage in a sentencing exercise in advance of the trial. The provision affects only cases where it is clear at the outset that the alleged crime is not serious enough to warrant a custodial sentence. Where that is the case, remanding the defendant in custody is generally disproportionate and not a sensible use of prison space. That sort of defendant will not pose a serious threat to public safety. Those defendants who pose such a threat will not pass the “no real prospect” test and so will still be liable to be remanded in custody.
Some respondents to the Green Paper argued that special considerations might apply where offences are committed in a domestic setting, in that an offence that does not require custody might nevertheless imply a risk of domestic violence if the defendant were bailed—the noble Lord raised that issue. We recognise the force of that argument, and have taken account of it. The provision incorporates a special exception to deal with that sort of situation. However, remand places are too expensive to waste on defendants who do not need them. We want to ensure that they are used only where it is necessary to protect the public.
I take note of what the noble Lord has said. I will consider and reflect on it but we believe that this is one simple way of stopping the use of scarce prison accommodation for people who, once they are tried and sentenced, are not going to be sent to prison. Clause 83 and Schedule 11 should stand part of the Bill.
Lord Ponsonby of Shulbrede
What would the noble Lord say to the case of failure to surrender? It is very common in magistrates’ courts to get people who repeatedly commit low-level offences and have no regard for court orders. They just do not turn up to court. Is the noble Lord really saying that there should be no threat of keeping them in custody until their trial?
Lord McNally
They can be tried in their absence and of course they can be picked up and put into custody. We are trying to deal with a very large number of people who go through our court system, are held in custody—taking up valuable prison space—but who from the very beginning it is clear will not receive any kind of prison sentence. If people do not turn up, of course they are in danger of being either tried in their absence or picked up and held in custody. If people try to intimidate witnesses, they commit a further crime for which they will undoubtedly end up in custody. In many ways, both Justice and the noble Lord are straining at gnats here. We are trying to deal with the very bottom end of cases. I will reflect on what he said, particularly on the Keeling schedule, and come back on Report.