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Lord McNally
“Dealing non-custodially with offenders
Schedule (Dealing non-custodially with offenders) (which makes provision about community orders, restorative justice, community requirements in suspended sentence orders, compensation orders and fines etc) has effect.”
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, it may assist the Committee if I say a few words about the shape of this afternoon’s debate. A large number of amendments are down. The noble Lord, Lord Ramsbotham, has given notice of his intention to oppose the Question that Clause 23 stand part of the Bill. I shall also oppose Clause 23 because the whole aim of this process is now to replace Clause 23 with the outcome of the Government’s consultation that allows this debate today.
I see the proceedings today and on 13 November as running in this way. Today, we will have, to all intents and purposes, the kind of Second Reading debate that we would have had if this work had been in its proper place when we reached Clause 23. It has been agreed through usual channels to recommit the provisions of the community sentencing and deferred prosecution agreements so that we can effectively debate them in two stages; first, today’s Second Reading-style debate and, secondly, a Committee-style debate on 13 November, when noble Lords will be able put down appropriate amendments. Today, Second Reading rules apply. For good order, I shall move separately the two blocks of amendments, those referring to community sentencing and those to deferred prosecution agreements. Our first debate will be on the community sentencing proposals. When that debate is complete, I will close that debate until 13 November and then make some opening remarks on the deferred prosecution arrangements, which will allow another Second Reading-type debate. I hope that that is clear to noble Lords and will allow us a good, well informed debate on both sets of proposals.
The amendments will strengthen the community sentencing framework to ensure that non-custodial sentences provide robust punishment, are effective in reducing reoffending and give a better deal for victims. The amendments give effect to a number of proposals in the Punishment and Reform: Effective Community Sentences consultation that the Government published in March of this year. As noble Lords will be aware, non-custodial sentences make up the great majority of sentences imposed by our courts. In 2011, fines and community orders made up around 80% of the sentences handed down by the courts. Given those numbers, it is clearly vital that sentences served in the community punish offenders, prevent further offending and repair the harm caused to victims and communities.
Our current community sentences framework delivers some of those purposes better than others. For example, community orders can be effective at tackling the causes of reoffending. The reoffending rate for adults subject to court orders in the 12 months ending September 2010 was 34%. The reoffending rate has fallen by 3.9 percentage points since 2000. Although there is still further to go, these figures are evidence of the hard work and dedication of all of those who work with offenders within probation and other organisations.
However, at present, community orders do not always inspire public confidence. Some community orders do not contain an element that the public would consider punitive, demanding or restrictive. For example, in 2011, around 10% of community orders contained only a supervision requirement, while the percentage of successfully completed orders is still low. The Government are determined to increase public confidence that community orders provide a proper sanction for criminal behaviour. Only in this way can community sentences be effective at tackling the causes of offending while reassuring victims and communities that justice has been done.
There is also scope for community orders to do much more to provide reparation to individual victims and communities affected by crime. It is true that around one-third of all requirements commenced with the probation service are community payback. In 2011 around 50,000 community orders had a compensation order imposed alongside them. But while some community orders already engage victims and offenders in restorative activities, the Government believe that there should be much greater use of restorative justice across the community sentencing framework and beyond.
Before I go into the detail of these amendments, it may assist the Committee if I summarise the responses to our consultation. We received just under 250 responses from a wide range of criminal justice professionals, representative groups, private and third-sector organisations and others. Practitioners have been clear that we need to trust their professional judgment and expertise, and that in doing so it is vital we retain the flexibility of the community order framework. They have also been clear that a one-size-fits-all approach to reforming community orders will not work.
The feedback has been critical in refining and reshaping our proposals. As a result, we have decided not to take forward some proposals. For example, we received a wide range of views on our original proposal for a centrally mandated intensive community punishment order but a common theme was the need to shape intensive orders around local needs. Changes to community orders under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 will give courts new and strengthened requirements to impose on offenders and will increase their flexibility to tailor rehabilitative requirements to offenders’ needs. These changes should provide the courts with more flexible and robust community order requirements that can be combined in creative ways to provide a sentence that delivers intensive punishment but is tailored to local circumstances.
Similarly, the Government have listened to the views of respondents on our original proposal for a fixed penalty for certain breaches of community orders and on giving offender managers the power to impose them. Instead, we have considered alternative means of making the breach process swifter and more immediate for offenders. For example, a significant cause of adjournment of breach hearings is that the defendant is not present. We propose to do further work with the courts, judiciary and probation service to explore improvements in operational procedures for dealing with breaches.
Turning to the detail of our amendments, the core provisions are to be found in the new schedule to be inserted by Amendment 155EZA. Part 1 of the new schedule flows out of our original consultation proposal to require all community orders to include at least one specified punitive element. The Government continue to believe that community orders must represent a clear sanction for criminal behaviour. However, we have listened to the views of respondents who argued that what is punitive for one offender may not be punitive for another and that the courts are best placed to determine what is an appropriate punishment. Part 1 will therefore require courts to impose an element that fulfils the purpose of punishment as part of every community order. That element can either be a requirement of a community order or a fine. The fact that a community order includes a punitive element does not mean that it may not also include a requirement or requirements that are rehabilitative.
In response to the feedback we have received, the duty does not specify what requirements courts should impose. However, based on comments from sentencers and other practitioners on what they generally consider to be a punitive requirement, a punitive element might generally include a restriction of liberty that represents a recognisable sanction to the public, such as a curfew, exclusion or community payback. Many community order requirements are capable of delivering both punishment and rehabilitation at the same time.
The Government have also borne in mind that there may be a minority of offenders for whom a requirement that fulfils the purpose of punishment is not appropriate. The duty therefore provides for an exemption where there are exceptional circumstances that would make it unjust to impose a punitive element. We received a wide range of views from practitioners on cases in which a punitive element might not be appropriate. Ultimately, what constitutes an exceptional case can relate only to the circumstances of each individual case, and the Government believe that that is properly a matter for the courts.
Part 2 of the new schedule amends the courts’ existing powers to defer sentencing in order for a victim and offender to take part in restorative activities. As noble Lords will be aware, restorative justice can have a positive impact on both victim satisfaction and reoffending. The Government believe that access to restorative justice should be available for all victims at all stages of the justice process, so that, where appropriate, they can opt-in at a time that is right for them. For some victims, that may happen immediately after an incident occurs, while other victims may want to participate in a restorative justice process post-sentencing.
We have noted in particular the significant support that consultation respondents expressed for increasing the use of restorative justice between conviction and sentence and the potential benefits that that could have for both victims and offenders. New Section 1ZA of the Powers of Criminal Courts (Sentencing) Act 2000, as inserted by Paragraph 5 of the new schedule, therefore makes it clear that courts can defer sentences until a restorative activity has taken place, if that is the course of action that both the victim and the offender choose.
This amendment is an integral part of the Government’s wider work on developing a cross-criminal justice system framework for restorative justice. The framework will seek to ensure that there is a coherent vision of how restorative justice should apply across all stages of the justice process, including how we build local capacity within available funding and how we ensure a consistently high quality of delivery through accreditation and training standards.
Part 3 of the new schedule removes the current £5,000 cap on a single compensation order that applies in the magistrates’ courts for adult offenders. The Government are committed to ensuring that as many victims as possible receive financial compensation from their offender. This change will give magistrates greater flexibility to impose appropriate levels of compensation in cases where significant harm may have been involved; for example, in environmental offences or criminal damage offences.
Part 4 of the new schedule amends courts’ powers to use technology to monitor offenders electronically as part of a community order. Current legislation already allows electronic monitoring technology to be used to monitor compliance with any other requirements imposed by the court as part of a community order. The vast majority of electronic monitoring is currently delivered by way of radio frequency technology. This technology has proven to be robust and reliable and an accurate way of monitoring an offender’s compliance with their curfew requirement. However, its capability is in practice limited to monitoring whether the offender is present at a specified address during specified times. The Government want to harness recent developments in technology to make greater use of location monitoring technologies, such as GPS, for offenders serving community orders. The National Offender Management Service is currently recompeting its contracts for providing electronic monitoring, which will include this new technology.
In addition to using location monitoring technology to enforce existing community order requirements, the Government propose to give the courts power to track offenders for the purposes of deterring crime, public protection and crime detection. The Government are clear that implementation of the new provision will be subject to the relevant technology being affordable and fit for purpose and to appropriate safeguards for its use being in place. Among other things, the Secretary of State will be under a duty to publish a code of practice setting out the appropriate tests and safeguards for the use, retention and sharing of any collected data.
Part 5 of the new schedule amends courts’ powers to order offenders to provide a statement of their financial circumstances before imposing a financial penalty or dealing with default in payment to make it clear that such a statement may include details of all their assets. Our consultation set out our aspiration to make greater use of asset seizure across the justice system. We consulted on the idea of creating a stand alone sentencing power to seize offenders’ assets as a punishment in its own right. Many respondents felt that in practice such a power could be difficult to impose and enforce. However, some respondents suggested that greater weight might be placed on offenders’ assets when fixing financial penalties.
Courts are already required to have regard to offenders’ financial circumstances when fixing fines, compensation orders and other types of financial order. In many cases, information about offenders’ earnings and outgoings will be sufficient for courts to set a proportionate and equitable penalty. However, the Government wish to ensure that, in cases where offenders may be cash-poor but have items of property that are more valuable, courts can, if appropriate, take account of this when fixing the value of a financial penalty.
Part 6 creates new powers for Her Majesty’s Courts and Tribunals Service to access data from Her Majesty’s Revenue and Customs and the Department for Work and Pensions to ensure that, when setting the level of a fine or compensation order, the courts have accurate information about an offender’s income or state benefits. This will ensure that fines are set at the appropriate level—not too low if they have a well paid job and not too high if they rely on state benefits.
With the addition to the Bill of these substantive provisions on community and other non-custodial sentencing, I am happy, as I said, to join the noble Lord, Lord Ramsbotham, in opposing the Question that Clause 23 should stand part of the Bill. I believe that these amendments will build on the strength of our current community sentencing framework to ensure that such sentences strike the right balance between punishment, rehabilitation and reparation when they are effectively enforced. I commend the amendments to the Committee. I beg to move.
Lord Rosser
Today, as the Minister has said, is in fact a Second Reading debate on the Government’s latest additions to the Crime and Courts Bill. The new schedule and clause, entitled “Dealing non-custodially with offenders”, cover a number of proposals and changes—namely, a punitive element to every community order, restorative justice, pre-sentence information sharing, information on offenders’ assets and financial circumstances, the removal of limits on compensation orders for adults and location tracking for the electronic monitoring of offenders, although the reliability, effectiveness and cost of using the equipment involved for such location tracking is as yet far from clear. On the other side of the coin, the Government’s proposals are either silent or relatively so on the provision for young adults, women and vulnerable offenders. No doubt at some stage the Minister will explain why this is the case.
I want to direct most of my comments to the introduction of a mandatory punitive element in every community order. The Government’s heavily trailed proposals for “tougher” community sentences have been delayed even longer than anticipated by the departure of Mr Clarke as Secretary of State at the Ministry of Justice and his replacement by Mr Grayling, a person adjudged to be more in tune with the heartbeat of Conservative Members of Parliament and Peers on law and order issues.
What, then, do the proposals add up to? Put simply, that appears to depend on the extent of the freedom, or lack of it, that courts are given to decide how to interpret them if they become law. The Government are seeking to make it mandatory for a court to impose at least one punitive element or a fine or both when sentencing an offender to a community order. For example, a punitive element could be unpaid work or electronic tagging and a curfew.
Having made it mandatory in one part of their proposals, in the next part, the Government then say that does not apply where there are “exceptional circumstances” relating to the offence or to the offender which would make it “unjust” in all the circumstances to impose a community order with a punitive element or fine. It is a bit like having an each-way bet. It seems that guidance on what is meant by “exceptional circumstances” will be given, among others, to the Probation Service, which draws up reports for the courts with recommendations on sentencing offenders who are being considered for a community order. It is not clear who will be drawing up this guidance, how prescriptive it will be or what will be the size of the Secretary of State’s personal footprint that will be stamped on the guidance. I hope that the Minister will be able to enlighten us on these points when he responds.
The Government say that they do not want to tie the hands of the courts. Clearly, at the very least, they want to give the appearance of telling the courts that they have often got it wrong up to now in their community order sentencing and how they must act in future. Currently some two-thirds of community sentences provide for what is considered to be a punitive element and often a rehabilitative element as well. The remaining third provides for measures designed to help rehabilitate an offender and/or for supervision by the Probation Service, but do not contain a punitive element because the courts have not considered that appropriate. Victims and communities, say the Government, want to see a punitive element in any community sentence, and that is why they are proposing to put a mandatory requirement, except in “exceptional circumstances” on the courts to impose a punitive element, or a fine, or both, in any community order.
Can the Minister confirm that this means that he and his ministerial colleagues in the department are telling the courts that in nearly a third of cases involving a community order they have been getting their sentencing wrong? Or is it the Minister’s view that things will continue much as they are now because “exceptional circumstances” may well continue to be found by the courts in almost a third of cases?
Most surveys show that the main thing most victims and communities want is some assurance that action will be taken to minimise the likelihood of the offender reoffending. On that score, the Government’s proposals contain very little. There are plans to extend restorative justice which we support, but this is dependent on the victim or victims and offender agreeing to such a step, which may or may not lead to a lesser penalty being imposed by the court. It would be helpful if the Minister could say what increase the Government are expecting in the number of cases dealt with in this way, what resources will be made available and at what cost, since disposal effectively of cases in this manner is likely to be resource-hungry.
The new Secretary of State has made it clear that his proposals for mandatory “tougher” community sentences, which can already be imposed by the courts, if they think fit, under existing powers, are not intended to be used as an alternative to short prison sentences of a few months. All the evidence shows that those are the least effective sentences in terms of reducing reoffending, which is what victims and communities really want to see achieved. So it would appear that the Government’s proposals will not reduce costs or the prison population, but rather, with the emphasis on extended mandatory requirements, would, if actually implemented, increase costs without necessarily impacting positively on reoffending.
One question is whether the Government’s real intention with the amendments is to impose tougher sentencing on the courts for community orders with the emphasis on a mandatory requirement on punishment and very little said on rehabilitation. Alternatively, is the intention to give the impression that this is the case for the benefit of the Conservative right wing and the right-wing media, while in reality continuing to leave it to the courts to decide the appropriate balance between punishment and rehabilitation in a community order, as they do now? No doubt, the Minister will clarify the position on this point, as that is surely one question to which the noble Lord must know the answer.
When considering community orders, a further issue is the role of the probation service in the management and supervision of offenders. What role do the Government see the current probation service playing in the future and in what format? In what areas of activity will the probation service continue to undertake the work itself and in what areas of activity will other organisations in the private and voluntary sectors be taking over the responsibility?
The new Secretary of State has come from the Department for Work and Pensions, which seems quite keen on the commissioner-provider split. Is that now the road that the Secretary of State intends to go down with increasing vigour as far as the management and supervision of offenders, and the future role of the probation service, are concerned?
We know that the Government lay some emphasis on what they describe as payment by results as an approach to engaging organisations in work with offenders. There is a danger that there is a lot of payment and not much in the way of results. Pilot exercises have been undertaken and perhaps the Minister could talk about the outcomes of these exercises and whether they have been completed as intended. If the Government’s view is that the courts have not been sentencing appropriately in one-third of community orders because no punitive element has been concluded, what benefits do the Government see arising from a punitive element now having to be imposed?
Most offenders have one or more issues that need addressing or taking into account in sentencing, ranging from mental illness or disorder of varying degrees of seriousness to significant housing, drug, substance or alcohol problems, learning disabilities and low educational achievement, being stretched financially or having primary care responsibilities. In a number of cases, these problems, allied to considerations of the circumstances and nature of the offence, may make a punitive element inappropriate. Based on their own research, what view do the Government have of the percentage of cases involving community orders that might be covered in future by whatever definition the Government intend of “exceptional circumstances”? Is it the Government’s view that a punitive element in the third of community order cases that currently lack such a provision will reduce reoffending in these cases or is this new provision being primarily designed to meet the Government’s view of what victims and communities want? As it is, we now already have a new requirement that where a community order is made by a court, a £60 victim surcharge will also be payable by the offender.
Debates in Committee and on Report will provide an opportunity to probe in more detail the thinking, reasoning and hard evidence behind the Government’s proposals and the impact that they are likely to have on reoffending, victims, the prison population and costs. The proposals indicate a considerable lack of confidence by the Government in the judgment of the courts to get the balance right between punishment and rehabilitation when imposing community orders. The mood music of the proposals on community orders, taken as a whole, is that of a one-club approach of being more punitive in future with new mandatory provisions, in contrast to the relative lack of emphasis, and certainly no mandatory requirements, in relation to rehabilitation.
If that is the Government’s instruction, through this Bill, to the courts, the outcome may well be less provision in community orders in future on rehabilitation or non-punitive elements as a means of reducing reoffending. Perhaps the Minister would confirm that such a development would be in line with the Government’s thinking on community orders in future. Many who appear before the courts need to be punished in clear and unequivocal terms for the offences they have committed. Equally, for others, that may not be the appropriate road to go down when there is evidence that the prospects of reducing reoffending would be maximised through addressing the causes of their offending with challenging sentence requirements. We will keep an open mind at this stage on the Government’s proposals, which have only recently been published, and we wait to see if the Minister can address some of the concerns expressed.
Lord Ramsbotham
I have given notice of my intention to oppose the Question that Clause 23 stand part of the Bill. However, as the Minister has explained, Clause 23 will now be removed. I shall also speak to Amendment 155EZB.
When I read the speech made by the Prime Minister on 22 October, I must admit that I was struck by one word that sprang out at me from everything that he said. That was “confusion”. There seemed to be confusion in his mind. When he said that he was not saying what people wanted to hear and not playing to the gallery, I felt that he was confused because he was actually playing to two galleries. To one gallery, which you might call the rehabilitation gallery, he said:
“Just being tough is not a successful strategy in itself. Recognising that young people who can’t read, teenagers addicted to drugs … need help, so that they can become part of the solution and not remain part of the problem … is not soft or liberal, it is common sense. We will never create a safer society unless we give people, especially young people, opportunities and chances away from crime. Prevention is the cheapest and most effective way to deal with crime. The Government is engaged in what can only be described as a rehabilitation revolution”.
I felt in a way that I could side with all that. But then, on the other hand, he made remarks to the other gallery, saying:
“At every single level of sentence this Government is getting tougher … we are toughening up community sentences too. If you are on a community sentence you will be supervised—you will be properly punished—you will be forced to complete that sentence. We will pay charities, companies and voluntary organisations who come and help us rehabilitate our prisoners, but the payments will depend on results. By the end of 2015 I want to see Payment by Results spread right across rehabilitation”.
I could not help concluding that when political theorising and posturing collide with the hard facts of reality, there are only two ways out. One involves meaningless wishful thinking and the other involves meaningful rethinking. Having had a most useful meeting yesterday with the Minister, and having thought through what other people have said, my appeal is that we shall have meaningful rethinking of a lot of this, and not go on with the wishful thinking. The Prime Minister says that everyone will be supervised—well, who by? At present, 62% of probation officers have a caseload of between 30 and 49. How can they supervise all those properly? How on earth are you going to have everything delivered by 2015, when there is not even a payment by results project working now?
We have heard a lot about the feelings of people in the community. I absolutely agree with the noble Lord, Lord Rosser, that it is more about whether people are going to reoffend than about what the probation service actually does. We have heard about victims and offenders, but we have not heard about a very important part of the whole community sentence delivery—the probation service. I admit to being seriously alarmed about the state to which the probation service has been reduced since 1997. When the Minister started, I understood him to say that he was talking about the Government’s consultations. In addition to the community sentence consultation, which we have been discussing, there was also a probation consultation that ran in parallel. Originally, when they were both launched, we were told that they were running in parallel and that we would have a chance to discuss them both. We do not have the Government’s response to the probation consultation in front of us. Therefore, we are blind. We can talk until the cows come home about what we would like to happen but unless we know how it can happen and whether it can happen, it is all pie in the sky. Frankly, that worries me.
I believe seriously that this confusion stems from an even more serious confusion right at the heart of the criminal justice system. The aim of the criminal justice system is to protect the public by preventing reoffending. The criminal justice system consists of four parts—the police, the courts, prison and probation. The police investigate, the courts sentence and the prison and probation services administer that sentence—the Prison Service in custody, the probation service in the community. The aim of all that is to help those committed by the courts to live useful and law-abiding lives. That is what it is all about when we reduce it down.
Noble Lords may agree with what I have said in this House many times before: namely, that within the criminal justice system the position of prisons is exactly the same as that of hospitals in the NHS. In other words, they are the acute part to which you go if you need treatment, and you go there only if you need the treatment that only they can provide. If that treatment is never going to be completed in either hospital or prison, it will have to be continued in the community in the form of aftercare. Therefore, there is a connection between what happens in prison and what happens in the community, which is the work that needs to be done between the two. However, as with the NHS, the default position in the criminal justice system is in the community, from which you go to prison if you need that treatment. Unfortunately, that position has been reversed and now, thanks to the ridiculous NOMS among other things, instead of being separate, probation is subordinate to prisons, which is absolutely the wrong place because where probation ought to be working is with the courts and the police in the community. That is where it has worked traditionally. Then it works with all the organisations within the community which can help deliver the work that it has to do.
If you look at this the wrong way round and see probation as being subordinate to prisons, you get into a muddle, which is not helped by the fact that there is now no director of the National Probation Service. As we have said many times, there is no senior probation official in NOMS. Therefore, an awful lot is being said and done about the probation service without proper senior probation service advice at the heart of what is happening. What worries me about this is that I now hear that yet more reconstruction of probation is going to be done in isolation from all that has happened so far and that it will involve more competition and more people coming from outside. The role of the probation service is offender management; it is the public sector responsibility to manage offenders who are sentenced by the courts. I hope to goodness that whatever happens does not include dilution of that.
I also worry about the probation service because it clearly does not enjoy the confidence of the Secretary of State. That is alarming, not least because all the documents published about the probation service say that all the probation trusts are performing to level 3 or better, which means good, and some of them are performing to level 4, with 100% delivery of all their programmes. If they are performing as well as that, what is the problem? As regards community sentences and the talk about being punitive, every sentence is punitive because it involves an element of coercion and/or deprivation of liberty of the offender. It is said publicly that 65% of current community sentences already contain a punitive element. The aim is to get to 95% with a punitive element. However, people have mentioned all the exclusions, all the people for whom there should not be a punitive element, such as all the mentally disordered, all the people with learning difficulties, all those who are immature and all the mothers who have problems looking after their children. There is a whole raft of people. If you are going to say that 95% of community sentences are going to have a punitive element, you will confuse everyone.
Let us also not forget the definition of “punitive”. If punishment is clearly what we understand it to be, “punitive” is the “awarding”, “inflicting” or “act” of punishment, or,
“severe handling, belabouring or mauling”.
I hope that that is not what is meant. I hope that Ministers will remember that the staff who have to deliver these so-called punishments have to be under no illusion that the punishment is awarded by the courts in a civilised society and it is not on for anyone then to administer further punishment. If people talk about adding a punitive element, they are giving people doubts as to who is going to deliver that punitive element. Sure as anything, it must not be either prison or probation staff. That would be utterly wrong and would undermine the whole system.
As regards payment by results and the 2015 promise, I am interested to see that a pause has now been imposed by the Secretary of State, including a pause on payment by results in Wales and the West Midlands probation services. The pause is for reconsideration. In addition to all the questions that have been asked by the noble Lord, Lord Rosser, and will no doubt be asked by other noble Lords during this debate, my plea to the Minister is that serious reconsideration be given to what is being proposed, because this posturing about punishment and the undermining of the position of the probation service, which has the responsibility to the community for delivering these sort of sentences, and the confusion being put in the minds of the staff who have to deliver this policy, must be avoided if the justice system is to work. I hope that during that reconsideration work will be done to examine what is actually possible, given the fact that there has already been a 19% cut in probation service resources since 2010, and more cuts are scheduled. It is no good saying that you will do things if you cannot, because you will do even more to undermine the confidence of the public.
I hope that the Minister will agree to this reconsideration and that we will not process the rest of the Bill until we have the government response to the probation consultation with us so that we can take all the factors into account when recommending what should go forward.
Baroness Hamwee
My Lords, a rehabilitation revolution will be welcome. Where I have criticisms, they are intended to be constructive this afternoon and in the further consideration of these clauses, because I want to see that revolution work. My first concern, as other noble Lords have indicated, is that the rhetoric around this should not become all-important and an end in itself. I wonder whether legislation would have been thought to be necessary if it were not for a perceived need to articulate that punishment is a principle of sentencing. It is only a principle. What is essential is that the punitive element does not eclipse or jeopardise the other elements. As my noble friend has said, what may be punishment to one person would not be punishment to another, so the assessment of the court, based on information about the individual offender, is central to the implementation of this, and indeed its presentation. I welcome the discretion of the court.
Designating the primary purpose of, say, education as being punitive worries me immensely. Someone who has difficulty with reading and writing could usefully have the right sort of education. Their problems may stem from dyslexia, for instance. If the response is badged as punitive, that raises a lot of questions about reinforcing negative attitudes to education, and that may lie at the heart of the offender’s problems.
Lord Woolf
My Lords, I hope that I can start by referring to the amendments to Part 2 before us in the most enthusiastic terms of which I am capable. I congratulate the Minister because I know that he played a significant role in ensuring that these amendments include the valuable provisions with regard to restorative justice. The provisions are substantially overdue; the evidence has been available for us to see; and in the debates in this House there has been a unanimity of view as to the positive role that it could play. All that I would caution, if I may, is the importance of ensuring that the proper groundwork is done in regard to its introduction and execution. It is first of all critical that victims see it as it is indeed intended to be—something that is meant to serve them as well as the community generally. Victims are at the centre of restorative justice and the evidence suggests that if conducted properly it provides them with real reassurance that those in authority recognise the importance of putting them at the centre of the policy to be adopted.
Turning to Part 1, I listened with great care to what was said by noble Lords, Lord Rosser and Lord Ramsbotham, and the noble Baroness, Lady Hamwee. Bearing in mind the admonition of the Minister that we are treating this as a Second Reading in our approach, I should say that I strongly support what they have said. I do not know whether it is right to refer to expressions of concern or expressions of alarm, but whichever term is used it is certainly endorsed by me.
Lord Ponsonby of Shulbrede
My Lords, it is clear from the Government’s response to the community sentencing consultation held last summer that there is substantial consensus among the consultees, and the Minister was right to point that out in his opening comments. The Government have accepted most of the advice given and the current proposals seem to be largely evidence-based and practical. However, there is one glaring exception, which has been raised by every noble Lord who has spoken so far in the debate, and that is the introduction of a mandatory punitive element into every community sentence. The Government’s original impact assessment of the proposals, which was published in March with the consultation, acknowledged that they would have an adverse impact on reoffending rates by causing primarily rehabilitative requirements to be replaced by primarily punitive requirements:
“Given a limit on the overall resources available for probation services, delivering a clear punitive element to every community order may cause the primarily rehabilitative requirements to be substituted for primarily punitive ones. Evidence is unclear on the effectiveness of different community order requirements in reducing re-offending i.e. some requirements may be more effective at reducing re-offending than others. There is a risk that some of the rehabilitative benefits of current Community Orders could be lost with adverse implications for the re-offending rate of those offenders subject to community orders”.
I have a clear question for the Minister, and in asking it I remind the noble Lord of the wise words of the great Jimmy Maxton, who said that you should not be in the circus unless you can ride two horses at the same time. My question is this: will it be open for sentencers to deem any element of a community order to be punitive? It is clear that a curfew, community payback or an exclusion order are, but can a court decide that, for example, an alcohol treatment programme taken alone as part of a community order has a sufficient punitive element to satisfy the requirements of this Bill? Here I should make it crystal clear that I am not talking about exceptional circumstances, but what the sentencing Bench deems to be punitive. It is important that sentencers retain their flexibility since every case is different. Can sentencers deem the rehabilitative requirements of community orders to be punitive as well, so as to satisfy the requirements of this legislation?
I want to give an example of how excessive restrictions on sentencers’ flexibility can lead to perverse consequences, which are clearly against the Government’s intention. My example is from the victim surcharge, a separate matter, but one which I think illustrates my point. On 1 October, the new extended victim surcharge provisions came into force, where offenders are charged money—cash—for the sentence they receive. Under the new arrangements, sentencers are obliged to charge a victim surcharge of £60 to those who receive a community order.
Last week, while sitting as a magistrate, I came across something that I am sure would not be the intention of the Government. I had a beggar in front of me who had a number of convictions for begging both this year and last, a Romanian lady in her mid-40s. The new element in her life was that she now had an address in north London. As a sentencing Bench, we wanted to give the beggar an exclusion order from central London—the City of Westminster. However, if we had gone ahead with that sentence we would have been obliged to charge the beggar £60, because the exclusion order is part of the community order. Clearly, this was not a practical way to proceed, so we dropped that idea on the advice of our clerk and sentenced in the usual way of one day deemed served, so the beggar effectively walked free. I am sure that that is not the intention. It would be much better if sentencing Benches had discretion in that matter. However, it illustrates the point that if sentencers do not have discretion, you can and do have perverse consequences.
My next point has, I believe, been made by the noble Baroness, Lady Hamwee. I was contacted by the Magistrates’ Association regarding the status of people who are working a number of hours in one week and the prospective conflict of their receiving jobseeker’s allowance. I got the same letter as the noble Baroness, Lady Hamwee, and will not repeat the point she has made, but am sure that that is a point that should be resolved between the Ministry of Justice and the Department for Work and Pensions.
The Government’s response document contains statements about restorative justice, victim personal statements, separate provisions for women offenders and a number of elements for people who breach their community orders, all of which, taken in isolation, are to be welcomed. However, one group of offenders was not concentrated on in the Government’s response, which I think is regrettable—younger adult offenders or 18 to 24 year-olds. The Minister will know that this is a particularly prolific and vulnerable group of offenders. There has been a number of initiatives over recent years and months, some of which have been very successful, as the Government acknowledge. However, there is no provision in this legislation to take any of those pilot studies forward. There have been initiatives in Manchester and Yorkshire, and it is disappointing that none of those has been taken forward. I would be interested to hear from the Minister how he proposes to address this group, which is often regarded as a forgotten group.
Baroness Linklater of Butterstone
My Lords, there have been some very important contributions to this debate. I have agreed with pretty well every word. I therefore ask the House to forgive me if there is some repetition of what has been said.
We must be clear about what we want from the courts in terms of community sentencing and what we expect from those who deliver sentences. Above all, we must be clear about the values that inform the process. In introducing himself and the Government’s proposals, Chris Grayling announced that he is going to be a “tough Justice Secretary” because he believes that greater toughness and more punishment is what the people of this country need and want. I wonder. A lot depends on interpretation and what is meant by and expected from this new emphasis on punishment as an additional element in all community sentences. I question whether what he is proposing will indeed be a positive way forward.
The greatest proportion of all those coming before the courts receive community sentences, which have already proved to be significantly more effective than prison in reducing reoffending by more than 8.4%. Of course, they could and indeed should be still more effective, focused and robust, particularly if better resourced, and I hope that the Government will do just that. Like others, I pay tribute to the probation service in particular for its role in providing an infrastructure and effective programmes with experience and skill all around the country.
The purposes of sentencing as set out in the Criminal Justice Act 2003 and revised in 2007 remain, I assume, the agreed framework. Very importantly, the five elements are interdependent and must be applied in equal measure. They are: reparation, rehabilitation, punishment, crime reduction and public protection. However, the Government want to alter this balance and prioritise punishment, assuming that the sanctions currently available are in some way too soft. This also begs the question of why some people break the law, whether those involved in low-level reoffending are thinking of potential sanctions they might face if they are caught, and whether punishment per se will have a significant effect anyway.
The Government say that they want more punishment in every order and that this would generally mean,
“restrictions of liberty that represent to the public a recognisable sanction”.
As has been said, these are curfews, exclusion or community payback. The Government also say that,
“what is punitive for one offender … will not necessarily be punitive for another”,
recognising that all disposals must be relevant to the individual offender. Clearly, community sentences should challenge in ways that will effect change, especially in reoffending, and the public need to be confident that this is happening. However, typically the needs of such offenders are significant, particularly in terms of mental health, lack of education and school exclusion, low IQ, domestic violence, unemployment, homelessness et cetera. Unless the sanctions of community sentences take these into account and support needs are met, they are bound to fail.
It is unhelpful and misleading to attempt to separate the punitive and non-punitive elements of an order. This is because they are interconnected, and the chances of breach and reoffending are high if this is ignored. It also risks—as we have heard it so eloquently put by my noble hero—constraining judges and magistrates, who must take into account the individual offender’s circumstances as well as the offence. I suggest that successfully preventing reoffending matters more than being punitive for its own sake and should remain the ultimate goal of sentencing.
The National Institute of Economic and Social Research has done some very interesting work for the MoJ on punitive sanctions and found that unpaid work alone—that is, a “punitive requirement”—had no impact at all. It found that a lot depends on the needs of the offender, and the best chances of punishment having some effect are when it is added to supervision and a programme. This indicates more clearly than ever that punishment has an effective place in the sentencing armoury only in combination with other interventions relevant to the individual. I urge the Government and my noble friend, when he is in his place, to look closely at their own good research on the place of punishment in what they hope to achieve in reducing reoffending.
The Government are quite rightly concerned about public confidence and the confidence of the courts in the effectiveness of community-based sentencing. This hinges on a combination of knowledge, understanding and experience and, where community sentencing is concerned, a great deal more is required. Community justice is an area where public confidence is not high because so little is generally known of the reality of sentences and community sanctions. This is hardly surprising because they do not take place in a public arena and you cannot see or hear what a curfew or an exclusion order or tagging entails. Even community payback is rarely publicly visible either, let alone the reality of specific programmes for drug or alcohol abuse, mental illness et cetera.
An extremely effective programme run by the Magistrates’ Association in conjunction with the probation service, Local Crime Community Sentence, aims precisely to close this gap in awareness and knowledge of how the whole process works by taking audiences through real cases and making them act as sentencers. The resulting growth in understanding and confidence in the process on the part of participants is palpable and measurable. We need much more of this kind of initiative and much more information.
Another piece of important work recently carried out by Victim Support and Make Justice Work—mentioned by the noble Baroness, Lady Hamwee—has demonstrated how much the public, especially the victims of crime, want to have more information at every stage of the criminal justice process. They want to be involved by having their views heard and then being kept in the loop with the outcomes of sentencing. Crucially, the overriding response from victims, as we have already heard, is the need to be reassured that what they have experienced never happens again to anyone. This is a far stronger feeling than any retributive response, which the Government should heed. Victims want to know, too, what community penalties consist of, and so they should. I believe that, if they did, they would be encouraged by much of what they found and thus be more confident. Their voice must be heard and the Government must have ears to hear. The Government should develop more programmes and information dissemination to make these realities more visible and available to victims in particular.
This need extends to sentencers, too. As chair of Rethinking Crime and Punishment, I saw the effect of visits that we arranged for judges and magistrates to programmes available to them in their area to see work being done by the probation service and local voluntary agencies. It was like an epiphany to many, because judges do not normally get out and about that much to make such visits. Sentencers must know more about the disposals available to them. Magistrates, too, no longer have basic travel expenses paid for such visits and have difficulty in many areas staying in touch with local provision. There is no substitute for first-hand visits and discussion. “I never knew it was like that”, was often the refrain after these visits. I hope that the Government, with their enthusiasm for community penalties, will look again and restore this very modest but potentially transformative practical support.
Finally, I shall say a quick word on restorative justice. The proposal that it should be readily available to the courts, victims and offenders is an enormously important move. It represents the embodiment of the same principles of effective justice that I have already discussed—namely awareness, knowledge, understanding and meaningful engagement with the participants, particularly victims. I have supported these principles and the work of the Restorative Justice Council for years. I welcome these proposals as having the best possible potential for enabling positive outcomes following the damage of crime.
My caveat is that it will take a great deal of time and large investment to provide adequate numbers of suitably trained and accredited facilitators, who are key to the process. Sentencers who would be initiating the process currently have no established tradition in the use of RJ. They would need training as well as convincing. The whole process will be extremely complex and expensive, and it will be vital to ensure that the quality of delivery is of the best and not rolled out in a piecemeal fashion. It would be a disaster if expectations were raised without adequate quality delivery. That would destroy confidence and set the programme back for a long time. The Government must clarify not only how much they are planning to invest in training, promoting and delivery but the estimated timescale for the rollout of RJ. I cannot imagine that it will become widely let alone generally available for some considerable time, even with the expert advice and support of the Restorative Justice Council and other agencies. I look forward to hearing the Minister’s reply.
Positive change does not happen through negative strategies. Punishment will fail unless it is married to positive strategies geared to the needs of each individual —victim and offender alike. The research confirms this. I urge that that should be our goal.
Lord Lloyd of Berwick
I support the amendment moved by the noble Lord, Lord Ramsbotham. I had not intended to speak so will do so briefly.
I particularly wanted to say how much I agreed with the speech made by the noble Lord, Lord Rosser. What we are engaged on here is taking another step down what has become, recently and most unfortunately, a well-trodden path: you create a new offence carrying a mandatory sentence; you then allow the court not to impose the sentence if there are exceptional circumstances that would make it unjust to do so. My first observation on that, of course, is that it is a complete misuse of the word mandatory. The word mandatory should be confined to cases that are really mandatory, like the mandatory sentence of life imprisonment. However, there is a worse objection. It seems to me that it creates confusion. Of course, it has every advantage from the Government’s point of view, because it enables them to say that they are being tough on crime. At the same time, however, they can say that they are not leaning on the judges—oh no, no—to impose a sentence that they would not otherwise impose since courts never impose a sentence that they do not regard as just. That point was made very eloquently by the noble and learned Lord, Lord Woolf.
The Minister must say in reply which of the two ways he intends to have it. What do the Government really mean? What do they really want? In legislation, especially in criminal matters, clarity is of the first importance. Absence of clarity, such as I think one will find in the working of Part 1 of the schedule, has bedevilled criminal legislation, especially in the area of sentencing, in recent years.
Baroness Butler-Sloss
My Lords, I had not intended to speak, but I strongly support the speeches of the noble Lord, Lord Ramsbotham, and the noble and learned Lord, Lord Woolf. I add my congratulations on restorative justice, although the points made by the noble Baroness, Lady Linklater, were such that I hope that the Government will listen carefully to them.
Punishment needs to fit the crime, there is no doubt about that, but I share alarm—alarm really is the word—about the use of the words “punitive element” and the requirement for punishment, because it is only in exceptional circumstances that one would not go down that path. There will be many circumstances which are not exceptional where it would be unjust or inappropriate to make an order that was seen as a requirement of punishment. I urgently ask the Minister to rethink that part of the proposals.
Baroness Howe of Idlicote
My Lords, at last I rise. I will try to be relatively brief.
Like other noble Lords who have spoken, I remain puzzled and more than a little exasperated as to why the Government feel that they need to write the word punishment into everything to do with sentencing. Surely, we all know that a court sentence is indeed a considered punishment for the crime. I share to some extent the view of my noble friend Lord Ramsbotham that what has been appearing recently has been playing to the two Galleries.
The other concern that I share with my noble friend is that the whole position of the probation service has not been made clear at this time, so that the two issues could be considered together. Like other Members who have spoken, I have huge regard for the probation service and the work that it has done over many years, going back to my time as chairman of a juvenile court many years ago. Every report on what it is doing, the levels that it has achieved and the prizes that it has been getting indicates what a good job it is doing. The idea that that vital role is to be outsourced to people who are less well trained worries me a lot.
On restorative justice, I must admit that I am a little concerned about the cost which the noble Baroness, Lady Linklater, told us will be necessary before it can be introduced. I very much welcome the idea of it being available, especially at that important moment between conviction and sentencing. I hope that there will be improvements there.
As others have said, we know that community sentences are increasingly being used for lesser crimes. Of greater importance is the fact that they are 8.3% more successful than short prison sentences in reducing reoffending. One has only to think of the number of contacts that you make once in prison that will encourage you to get further involved in crime at a later stage to realise the sheer common sense of that.
Equally welcome would be rather more definition of the exceptional circumstances that can be brought into play. I hope that we are going to get more of a response from the Government about that because it will always be relevant when sentencing vulnerable disabled offenders, younger adults and, even more importantly in many ways, not least with regard to cost, women. It is logical that every effort should be made to keep that group out of prison, not least as their offences are usually minor and they themselves have often been the victims of sexual or other kinds of violent crime. We must also remember—hopefully, all courts do—that any imprisonment may well mean that the children have to be taken into care. Think of the cost, both financial and in terms of the upbringing and disruption of that child’s life. Again, if the accommodation is repossessed by the landlord, who knows? The whole family could be broken up. That, again, is a real concern.
I shall touch on another important issue that has been mentioned: the punitive elements could mean that the rehabilitative elements are unable to be proceeded with. We need proper reassurance that there will not be any nonsense about an imposed curfew or unpaid work, meaning that an offender cannot get the mental health treatment that they need or indeed go to the drug rehabilitation centre. That is such an obvious point that I hope it can be dealt with quickly.
On the issue of tagging, I know that a great deal is going on regarding improvements in these techniques. I am particularly concerned about this because of the use that this can be put to when dealing with not just violent offenders but ones who might have been involved in stalking, whose victims have already suffered huge amounts of sexual and other forms of violence. I would like to hear much more about that. I shall leave it at that—speakers at the end should be as brief as possible.
Lord Reid of Cardowan
My Lords, in my contribution I cannot lay claim to the same expertise that other noble Lords have brought from acting on the Bench as judges and magistrates, but I am familiar with some of these aspects. It may surprise the Minister to know that I am not riding to his rescue this evening; in fact, I find a lot of the contributions that have been made up to this point extremely persuasive.
For my part, I make it plain that I support the appropriate use of community sentencing, and in that sense I support the move by the Government. I may be remembered, along with my colleague Mr Blunkett, for introducing indeterminate sentences, which was for the element of protection, not punishment. In their wisdom, the present Government have taken a different view, which they are entitled to.
The one time when I got into real trouble was when I reminded the judiciary that the introduction of indeterminate sentences for those from whom the public needed protection, in our view, was supposed to be balanced by the ending of custodial sentences for those who should not have been in prison—in other words, for exhorting the appropriate use of community sentencing. I did so at the invitation of the Lord Chief Justice, but I was attacked by every judge in Britain except the Lord Chief Justice for reminding them of the original thinking behind the balance of indeterminate and community sentences. I am for community sentences. I am also very supportive of restorative justice, if for no other reason than that it appears to work from the point of view of the victim and for the rehabilitation of offenders.
On community sentencing, I am puzzled about why it is felt necessary to introduce the requirement that the purpose of punishment be explicitly recorded—I am careful not to use the word “mandated”—as one of a range of requirements upon the judiciary. I am therefore left to work on the basis of formal and informal press briefings. I recognise from my experience that the press do not always reflect accurately the reality of a Minister’s thinking, so I do not want to assume they are 100% accurate, but we are led to believe that it is necessary because this is what the public demand. I am not sure that that is the main concern of the public about community sentences. I think the main concern of the public is that they do not quite know what they involve or that people are being required to do things that they would not normally do.
We put in a lot of effort to highlight the nature of community sentences. Some of the manners in which we did that were not popular or acceptable. We had among a range of practical suggestions one which included the people involved wearing particular coloured vests. At the level of operations, some people may have objected to that, but noble Lords will understand that the reason behind it was that we recognised the appropriateness of community sentencing, but we also recognised that there was unawareness among the public of what good was coming from it and what those who were thus sentenced were actually doing to recompense the community and victims for the effects of their crime.
If the Government wish to reassure the public about the nature of community sentencing, this clause is a pretty blunt and crude way of doing it. The problem is that this will backfire. I have no problem with Governments who take a strong line on law and order. They are always accused of playing to the Gallery, but when the Bill uses this particular expression and requires this particular reaction in community sentencing—which would be taken into account anyway by the judiciary because of the criteria that inform our sentencing policy, as the noble Baroness pointed out earlier, which derive from 2005, I think from memory—it is seen as a gratuitous attempt to play to the Gallery and, however sincere the Government are, they are weakened.
I support community sentencing where it is appropriate. There are many people in prison who should never be there and who will not be mended in their ways, rehabilitated or make recompense to society. In supporting restorative justice, I hope that the Government will look again at this clause and rely on the wisdom of the judiciary. In community sentencing, that has not been the problem; the real problem has been that we need to do more to illustrate to local communities the effect of what is being done for their good as recompense and as part of rehabilitation.
Baroness Warnock
My Lords, I hope that the Government will pay attention to everything that has been said today. There seems to be a total confusion about the meaning of the word punishment and the adjective punitive. The meaning of these two words has separated over the years. Punitive suggests something quite alien from the notion of punishment, which is what is handed down when someone has been convicted. We know that vengeance does not work and that punitive sentences are not necessary. The whole point of punishment is to prevent further offences. We know now that community sentencing does, relatively speaking, work in the way that short prison sentences do not.
I beg the Government to concentrate on what is intended by punishment and to go on the evidence that community sentencing, with good support from the probation services, can work and that this is the intention. The adjective punitive seems to me to be completely out of place in this discussion altogether. I believe that the Government must listen to what has been said today.
Lord Elystan-Morgan
My Lords, I agree wholeheartedly with the remarks made by the noble Baroness, Lady Warnock. In relation to the past 30 years or so, Governments of every hue must stand in the dock and answer the accusation that they went out of their way to curtail the discretion that otherwise would have been vested in a judge or magistrate. Practically all Governments have done that and some of them more shamelessly than others. I am sure that anyone who has served in the courts in a judicial capacity, however senior or however humble, must be very aware of that.
The proposal that the Government are now putting forward in relation to the punitive approach is one of the most far reaching in that context. If it should be the case, as I assume it to be the Government’s case, that one-third of community orders which are made without a punitive element according to their definition must in all cases be dealt with in a different way, save for a very minuscule minority that is exceptional, then it is a very far-reaching and drastic proposal.
I fully accept that the Government are talking not so much about punishment in the sense of the disposal of a case of a person who has committed a crime but about something else, which connotes the idea that the experience of the defendant should be painful. My Latin is not all that good but does the word punishment not come from punitas? Is punitas not one and the same thing as pain? It is poen in Welsh and pain in English. Is that not really what the Government are after?
However, I think that the argument put forward by the Government, which has been described as offensive by the noble and learned Lord, Lord Woolf, and alarming by the noble and learned Baroness, Lady Butler-Sloss, is highly offensive. The 2003 Act had a vast range of community disposals. In many ways, they were imaginative, flexible and double-banked. The sentencer had a huge armoury at his or her disposal.
As I understand it, the Government are now saying that that failed to achieve its purpose. The people who were charged with imposing sentences missed the whole point. At some time after 2003, tens of thousands of sentences every year which should have involved a punitive element did not achieve their purpose because that element was missing. That statement is either correct or incorrect. If it is correct, it must mean that many people sat in judgment as magistrates, circuit judges and recorders who should never have been there. They were missing the whole point. However, if that statement is incorrect, it is one of the most unjust indictments of the administration of justice that there could ever have been. It is one or the other.
I ask the Government: where is the evidence that in tens of thousands of cases, year by year, at some point in time after 2003, that has been happening? I feel it is a policy and a gesture that is cosmetic rather than real and intended to give the impression of toughness. The greatest toughness to my mind that can be achieved in relation to the administration of justice is doing that which is right, that which you know to be just and that which you consider to be proper by society, irrespective of whatever prejudices tabloid editors might have against you. That is the toughness that the Government should seek to achieve.
Lord Marks of Henley-on-Thames
My Lords, the test for these amendments is whether they work in making community orders more effective and in cutting reoffending as a result. It is quite plain from the debate today that it is common ground in this House that seeking reform and rehabilitation of offenders, while recognising the importance of offering redress to victims, provides a balanced approach, which offers a far greater prospect of cutting reoffending than a programme of increasing prison terms and prisoner numbers.
However, if there is to be a compulsory requirement imposed for the purpose of punishment in community orders—it is noteworthy that the phrase punitive element is not used—it is very important to recognise what is meant by punishment in this context. In an enlightened society, the punishment involved in a prison sentence is the loss of liberty for the offender, not the imposition of a harsh and inhumane regime for prisoners serving their sentences. Therefore, the punishment element in a community order should be reflected in a lesser but none the less significant loss of liberty—the liberty to do as one pleases within the law—by the imposition of some compulsory sanction that restricts that liberty.
It should not follow that the activity that offenders are obliged to undertake by community orders must be unpleasant, degrading or harsh. It is not likely to be helpful to force offenders to do some kind of hard labour for the sake of it, much as some elements of the press would wish us to do so. It is likely to be helpful, however, to oblige offenders to acquire work and life skills that will help them to find work and take their place in non-criminal society. Compulsory training, useful work—particularly work that benefits the community—treatment for addiction and anger management, and, importantly, a significant commitment to compensation, may all have their place in a regime of punishment, as may curfews monitored by electronic tagging that oblige offenders to remain at home for a reasonable number of hours in the day. I reiterate the point made by my noble friend Lady Hamwee that 16 hours hardly seems a reasonable number of hours in a day.
From what I have said, it follows that I welcome the passage in my noble friend’s opening speech that this is how the Government see the punishment provision. But I can foresee the way in which the provision is presently worded leading some to question what is meant by punishment. It is important that it is absolutely clear, as my noble friend suggested, and as the noble Lord, Lord Ponsonby, wanted clarified, that the discretion as to what is the punitive element in a sentence is a discretion to be exercised by the sentencer and that he or she can comply with the requirement in the schedule in a way that he or she reasonably sees fit.
I would add a couple of words about one or two provisions of this part of the schedule, to which the House may wish to give attention next time. The reference to “exceptional circumstances”, as the noble and learned Baroness, Lady Butler-Sloss, pointed out, as being the circumstances required to invoke the exemption from the requirement for a punishment element or a fine in a community order is far too strong. Exceptional is a very powerful word in statute and runs the risk of being more restrictively interpreted by the courts than my noble friend’s speech would indicate that the Government intend.
I also add a minor point that the proposed provision that breach by a contractor of the code of practice for electronic monitoring will not give rise to a civil cause of action may offer contractors, who are likely to be private contractors, an unwarranted level of immunity, and may weaken public confidence in how they perform their duties in respect of an intrusive form of punishment.
I add a word or two about restorative justice. The provisions of Paragraph 5 of the schedule have been welcomed across this House. By bringing offenders into contact with their victims, restorative justice helps them to understand the impact of their offences and assists victims to feel that society cares, understands the ordeals that they have been through and responds to them. For far too long, victims of crime have been treated as witnesses only, and even the introduction of victim support over recent years has failed adequately to address this. I know from my own experience and that of others that an arrest and a flurry of statements following an offence are followed up with a couple of letters offering counselling by way of victim support, when the victims may not need or want such counselling. Then far too often there is a silence, without the victims even being told what has happened because the offender has pleaded guilty so no evidence is needed from them at a hearing. That leaves a gaping hole in the system of providing victims with proper redress, and it needs covering at all stages of the process.
Deferring sentence to allow for restorative justice activities may prove a turning point for offenders and victims, and the evidence to which the noble and learned Lord, Lord Woolf, referred so far supports this. But for all these proposals to fulfil their potential, they must be properly resourced in terms of people, preparation and funding. To improve the effectiveness of community orders in the ways proposed, we will need more people, more money and adequate training. Much will turn—and the noble Lord, Lord Ramsbotham, made an extremely valuable and important point—on the outcome of the Government’s consultation on the probation service. While there may be good reasons for the increasing use of private and voluntary sector providers, as suggested in the consultation paper, it is very important that we do not dissipate or even risk dissipating the expertise that exists within the public sector probation service—and I share the worries of many noble Lords in the Committee. For example, there is a proposal in the consultation paper to allow existing probation services to form separate probation trusts to compete with private and voluntary sector providers for work from the commissioning probation trusts. That seems structurally awkward and doomed to fail. We must find a way to retain what is best in the probation service and not lose the talent that we have.
Resource will also be needed to provide for the restorative justice proposals. Sentencers will need training, and facilitators will need to be available to provide a service during the short periods when sentence is deferred. There will need to be national, not patchy, cover. These are serious challenges; if met, I believe that they offer serious prospects of improvement and, ultimately, savings of resources and great social benefits. But the implementation of these proposals so that they achieve their potential will be a significant challenge.
Lord Beecham
My Lords, in a previous debate, I described the then Lord Chancellor as a practitioner of the John Lewis style of politics—never knowingly understated. It seems that this is now embedded as the Government’s house style on justice issues. Ten days ago the weekend news resonated with talk of the Prime Minister shifting from “hug a hoodie” mode to “mug a hoodie”. We were expecting Dostoyevsky—“Crime and Punishment”, admittedly, rather than “The Brothers Karamazov”, which is presumably confined to the roles of the Prime Minister and the Deputy Prime Minister. But instead we ended up with something rather like a Bow Group pamphlet because, as it turned out, the Prime Minister’s speech and the ensuing long overdue government response to the consultation on community sentences, together with the amendments that they have now brought forward, reflect generally a more nuanced approach to the issues than we were led to believe was coming—as well it might, given the £10 billion a year cost of reoffending and the overcrowding in our prisons. It is a pity that while we have the government amendments before us, we do not as yet have accompanying Explanatory Notes, and I trust they will be available well in advance of consideration in Committee.
We welcome the decision to drop some of the more eye-catching proposals which aroused significant opposition in the consultation, such as driving bans, new powers to confiscate assets and fixed penalties for certain breaches of community orders. Equally, we support the proposals on restorative justice, building on some of the pioneering work already being done in different parts of the country. We also approve of raising the limit on compensation orders, which can be made in the magistrates’ courts. But there are questions, which some of your Lordships have raised already, to be answered about how proposals on restorative justice will work. What support will be offered to victims, who, as the noble and learned Lord, Lord Woolf, pointed out, should be at the centre of the restorative justice process? Equally, it will not be enough to say, as the Minister was quoted as saying, that offenders will be just saying sorry—although I suspect that the report did not do full justice to what he was talking about to the Guardian reporter. I do not think that that is by any means sufficient, and I do not believe that the Minister believes it, but perhaps he would like to go on the record and correct the impression given in his interview in the Guardian. In recognising that using restorative justice in appropriate cases could and, indeed, should, be cost-effective, have the Government estimated the cost of the process in terms both of cash and personnel, including the issue of training, to which the noble Lord, Lord Marks, referred?
The Government have laid great stress on the need for community sentences to contain a punitive element, although it is estimated that between 60% and 80% of such sentences already do so. The Government’s proposal that every community order must include one punitive element, a fine or both, has been the subject of concern around the House today. My noble friend Lord Rosser has already referred to concerns about offenders with mental health problems or learning difficulties. It would be helpful if the Minister could indicate that such matters could fall within the “exceptional circumstances” disapplying these provisions referred to in the amendment which would insert in the Criminal Justice Act 2003 new subsections (2A) and (2B). The noble Lord, Lord Marks, raised a series of questions about that. It would be unfortunate if his deduction was correct that exceptional circumstances might mean precisely that and there would be very few cases in which the courts would be able to depart from the provisions of new subsection (2A). We look forward to hearing from the Minister about his perception of what is intended by that phrase.
One such punitive measure could be electronic monitoring, which could certainly be useful in a number of cases. But given the recent critical report into the cost of the present scheme, what assurances can the Minister give that the costs would be much closer to those apparently charged in the US for the technology that is used there? Policy Exchange, not exactly the think tank of choice for bleeding heart liberals, has pointed out that around £883 million could have been saved by adopting the US practice of the scheme being applied by the judicial system rather than relying, as we have in this country, on three very expensive contracts with private sector contractors. What would be the process for any new contracts, using the new technology as it is developed?
The Government also propose to issue a code of practice in relation to electronic monitoring. Will this be subject to parliamentary approval, and will the data collected be available to government and other agencies in dealing with the consequences of offences? In any event, as the noble Lord, Lord Reid, and others have indicated, it will be important not to fetter the court’s discretion as to sentencing, and to give full weight to the rehabilitative element to address the issues which often will underlie the criminal behaviour that brings people before the court in the first place. These can, of course, range widely from alcohol or substance abuse to health, particularly mental health problems, to which reference has already been made, and low literacy and numeracy skills or lack of parental support. In dealing with all these matters there is clearly an important role for probation. Many of your Lordships, including the noble Lord, Lord Ramsbotham, have expressed great concern about the uncertainty around the future of the probation service. That is a matter which, although it is not formally part of the Bill, must be in all our minds as we debate its progress through this House.
Equally, we ought to know something about the proposed payment-by-results scheme. There have been pilots but apparently they have been abandoned, held up or deferred. Surely, if we are going to look at this concept, we need a proper evaluation of the pilots that have already taken place. It will not be good enough to proceed with a policy without an evidential basis.
The role of the skilled probation officer is key not merely in the sense of supervising the offender in terms of compliance with the provisions of the order but more generally in helping to identify areas in which the offender can be helped to address his or her problems, if necessary in co-operation with other agencies and services. We know that a home and a job are the key elements in reducing the propensity for prisoners to reoffend. The same must surely be true for many offenders given community sentences. Proposals to reduce access to housing benefits are not likely to assist, particularly in the case of the 18 to 24 year-olds to whom the noble Lord, Lord Ponsonby, referred.
By definition we are dealing with people who are, as it were, at the end of the process. Last week a question was asked in your Lordships’ House about London’s black cabs, which apparently suffer from severe steering problems—rather like the Government, you might think. However, the faults seem to be systemic and incapable of rectification. Much the same can be said in relation to the problems of those who end up in custody. The likelihood of their becoming offenders is closely related to factors apparent from an early age. Compared with the general population, prisoners are 13 times more likely to have been in care, 10 times more likely to have been a regular truant, six times more likely to have been a younger father and 13 times more likely to have been unemployed. Half of all adult male prisoners have been excluded from school and have no qualifications and 75% of female prisoners are in that category. Half of all prisoners have the reading skills of an 11 year-old or less, two-thirds have the numeracy skills of an 11 year-old or less and four-fifths have writing skills at or below that level. A very high proportion has drug and alcohol problems and the great majority have one or more mental health disorders, especially among young offenders. Around 20% of men and 30% of women prisoners have previously attempted suicide.
We are therefore dealing with a highly damaged group of people. To help prevent them inflict damage on the rest of us or, indeed, on themselves, we need all relevant agencies, not merely those involved in the criminal justice system, to engage with the problems of poverty, mental illness, substance abuse and addiction, lack of skills and work or a decent home—the milestones on the road to a prison cell trodden by such a high proportion of the prison population. That means the relevant arms of government and local government, including the health service, the Department for Work and Pensions, education and adult services joining together, as advocated by my right honourable friend Sadiq Khan, both at the early preventive stage and wherever necessary as part of the sentencing and custodial processes where crimes have been committed but also in the rehabilitative process and in the programme of community sentences which the Bill addresses.
In his foreword to the response to the consultation the Lord Chancellor describes the most serious weakness of our prisons as their doing,
“too little properly to challenge the individuals who end up inside them”.
That may be so but their capacity to challenge must surely be limited by the very numbers incarcerated and the overcrowding and consequent pressure on staff and facilities. He goes on to say that he is,
“determined to deliver a rehabilitation revolution: ensuring that more of the right people are inside prison”.
It is not entirely clear whether that means there should be greater numbers overall or fewer of what might be thought of as the wrong people inside. Perhaps the Minister can enlighten us on that.
However, the other principal objective must surely be that fewer who are in prison return to prison. Does the Minister agree that rehabilitation is not just relevant to those who receive custodial sentences? I assume that he does. Ought not that to be a priority for those receiving community sentences? Should not the Government be looking more closely at short prison sentences in terms of their effectiveness or otherwise and the need for follow-up after release?
There are two more issues on which I wish to touch briefly. The first relates to female offenders. The consultation response makes some reference to the relevance of community sentences to women but does not address the question of whether we simply have too many women in prison. Will the Government look again at this issue? Some years ago the number of women incarcerated had gone up threefold as against a twofold increase in the number of male prisoners and 50% of female prisoners had previously been admitted to mental hospitals. That is a staggeringly high proportion.
Will the Government also look at the position of BME offenders who are more often refused bail and who, if convicted, receive longer custodial sentences than others for comparable offences and with comparable records?
The noble Baroness, Lady Linklater, referred to the public’s attitude to sentencing. I think she was a little inclined to assume that it is rather more vengeful than is often the case. An opinion poll conducted some years ago showed that two-thirds of respondents expressed an interest in deciding what work should be carried out under the remit of community sentences. There was a recognition that prison is not a sufficient answer to the problem. Many people expressed a willingness to participate with youth offending teams in deciding what should happen to young offenders. I think we can underestimate the electorate’s intelligence. However, the noble Baroness is right to point out that we need to make the facts clear. Faced with the facts as opposed to the tabloid headlines, people would be more sympathetic to that approach and more sympathetic generally.
I commend the Government for their approach in the amendments they have brought forward and in their response to the Bill. However, a number of significant questions need to be addressed. I do not expect the noble Lord to deal with them all today. We will have an opportunity to go further into these matters in Committee. This part of the Bill is clearly on the right lines in most respects. We have to make sure that where it is not, it gets on the right lines. We also need to make sure that resources will be available to back the aspirations so that the Government’s intentions, many of which are shared by Members all around the House, can be carried out.
Lord McNally
My Lords, I am grateful to the noble Lord, Lord Beecham, for that response. As is often the case with his contributions, it contains a great deal with which I agree. I am also grateful to him for putting on the record statistics about the nature of people who come into our criminal justice system.
I am pleased that the noble Lord emphasised the prize of rehabilitation. I have never hidden the fact that I am not pleased with a 50% reoffending rate in mainstream prisons and a 75% reoffending rate among youth offenders. Fortunately, a very small core of youth offenders are now in custody. Even the most hard-nosed of criminal justice practitioners must see the common sense of cutting into reoffending rates which has the threefold benefit of saving the taxpayer the £40,000 or so a year it costs to keep the reoffender in prison, saving victims the trauma of future crimes and giving society a law-abiding member. So the prize for getting rehabilitation onto the agenda is extremely important. I am very grateful for some of the comments —here we had recently a Conservative Prime Minister talking positively about a rehabilitation revolution. That is very welcome and is something to build on.
I wish to comment on two of the points made by the noble Lord, Lord Beecham. I would like us to achieve with women offenders some of the success that we have had with young offenders. As the noble Lord rightly said, you do not have to look in too many women’s prisons to see those who have no place there. I am glad to say that my colleague in the other place, Helen Grant, has taken responsibility for our women’s strategy and will be publishing shortly an update of that strategy, which I freely admit will build on the pioneering work of the Corston report in relation to women prisoners. The noble Lord is also right about the 18 to 25 age group where criminality becomes embedded. We should be looking at how we try to identify some of the specific issues there.
As always with debates in your Lordships’ House, I am left with a pile of notes that either I have made myself or the Box has supplied, which would keep me here until well after the dinner hour. I would therefore ask that I and noble Lords are spared a response to every question, and I hope that we can raise them again in Committee.
Of course I do not see restorative justice being simply about saying sorry, although, interestingly, it is sometimes the most difficult thing to say. However, restorative justice also forces the offender to face the consequences of their actions and the impact that they have had upon others. In this way, it can help rehabilitate offenders and enable them to stop offending. It can help motivate them to change and become responsible, law-abiding and productive members of society.
In the examples of restorative justice that I have seen, its importance for victims should not be underestimated. The victims said on many occasions, “That enabled me to have closure” on what had been a very traumatic experience. I was therefore grateful for the comments made about our proposals on restorative justice, although I should say to all my colleagues who said that it is a big commitment that I do not underestimate the fact that it will have to be prepared with the proper training and rollout. I pay tribute to the noble and learned Lord, Lord Woolf, because it was his constant harrying on restorative justice that made it a priority for me. While I take on board the fact that it is a tough ask, perhaps I may quote Mao Tse-Tung, who said,
“The journey of a thousand miles begins with a single step”.
I hope that this is the single step that takes us towards restorative justice.
I was slightly disappointed that the noble Lord, Lord Reid, did not ride to my rescue because, again, I agreed with much of what he said. I agree that there are people in our prisons who should not be there. One of the things that I hope we are developing in this policy is the twin track, which will make sure that the people who should be in prison are put there because of the nature of their offences or for public protection, but those who should not be in prison are managed safely out of the system.
I was glad of the references to one of my other standby quotations—Jimmy Maxton’s comment about riding two horses at once. That is precisely and unashamedly what we are trying to do. We are trying to make sure that the public have a confidence in community sentencing that will allow us to implant rehabilitation into the community sentencing process, which we hope will provide the impact on reoffending that I have said is so desirable. I agree that there is a certain element of riding two horses at once. We need public confidence in community sentencing if we are going to give it the traffic that we want it to bear.
Lord Beecham
Does the Minister agree that it is essential that the horses run in the same direction?
Lord McNally
Absolutely. We might get on to troikas in a few minutes, but we will wait for that.
I also fully understand the separation of powers in our system. The judiciary and parliamentarians should show due respect for each other, but we should also respect that in the workings of the criminal justice system parliamentarians have a responsibility as well as the judiciary, and they are quite entitled in that responsibility to comment on how the system is working. I have to say to the noble Lord, Lord Elystan-Morgan, that if proposing amendments to the criminal justice system somehow disowns all the decisions that judges have made under previous legislation, it must have been really difficult under the previous Government who, I think, passed a piece of criminal justice legislation on average every year for 10 years. We should not get too thin-skinned about it. I have absolute respect for our judiciary and it is a bit rum to say that we are bullying or being high-handed. One of the key elements of this Bill spelt out clearly our trust in the sentencer to make the crucial judgments about balance in terms of punishment.
Of course we will consult on guidance. When sentencing any offender, courts are under a statutory duty to follow any relevant guidelines issued by the Sentencing Council.
Lord Elystan-Morgan
Does the Minister accept the logic of the situation that, if he is right about the one-third of community sentences that according to the government definition do not carry a punitive element, that one-third—amounting to many tens of thousands of sentences each year—would be disallowed and that that is the effect of the situation over the past nine years since the 2003 Act came into force?
Lord McNally
I am sorry but I completely failed to follow the logic of this. Parliament is entitled to take another view nine years after a piece of legislation is enacted. That does not mean that decisions taken under the 2003 Act between its enactment and this Bill becoming law become completely invalid, it just means that Parliament has taken another view on this and has given some further guidance as to how the council should carry out its responsibilities. The Government are saying that they believe that the third or so of community sentences that did not have any punitive element would have been better and more effective if a punitive element had been included. We have had a lot of debate about this, but imagining that community sentencing that does not have punitive elements will have public confidence is going too far. I can tell the noble Lord, Lord Reid, that I had a very good example of one of his pieces of handiwork. I went to see a group of young men clearing a patch of derelict land and they were all wearing bright orange jackets. I asked the supervisor, “Do you have any trouble?”, and he replied, “Only that they steal the jackets because they’re quite a symbol to wear at the dances on Saturday nights”. That is the reality at the sharp end.
There is a fear of the word “punishment”, and the noble Lord, Lord Beecham, mentioned some statistics. I have said this at this Dispatch Box before: at one of my first ministerial visits to a young offender institution, there was a group of 16 and 17 year-olds standing around and I said to the person in charge, “What are the factors involved in these guys being here?”. He looked across at me and said, “Most of them have had but a passing contact with our education system throughout their lives, and most of them can’t read or write”. If we have young people, in particular, in our care and custody for a period of time, it does not seem unreasonable to say, “While you’re there, you’re going to learn to read and write”, or, if they are on a community sentence, “While you’re on that community sentence, we’re going to teach you to read and write”. Somebody who may never have got up before noon in his life might classify learning to read and write as a punishment, but later in his life he may classify it as one of the turning points in his life.
I understand some of the concerns but let us not get too worried about some of the presentational aspects; let us dig down into what the Bill is going to do. I think that it will put community sentencing on to the map in a way that will attract public confidence and enable us to take proper action on the rehabilitation of offenders.
I reassure noble Lords that we are looking very carefully at electronic monitoring and we will keep the House informed as we examine the technologies. Of course, we are aware that there will be civil liberties concerns in this area which we will wish to address and on which we will wish to reassure Parliament.
With the leave of the Committee, I shall look through my notes and, where there have been specific questions that I can reply to, I shall do so in writing. However, I know that this excellent debate has fulfilled the first of our objectives. I take on board the concerns that have been expressed about probation. I am a lifelong admirer of the probation service and am in awe of the responsibilities that our probation officers take on. I cannot imagine that any future structure would not draw on the experience and ethos that makes it such an excellent service.
Baroness Butler-Sloss
Before the Minister concludes, perhaps I may again raise the question of “exceptional circumstances”. I hope that he appreciates the limitation of the word “exceptional”. I think that the lawyers in this House will all agree that that word will be treated by the courts as really meaning exceptional.
Lord McNally
I shall certainly take that back. Perhaps I may be quite clear about the Government’s intention. The use of “exceptional” is not a three-lane highway out of a request to have a punitive element. In consultation we have said that we see “exceptional” covering about 5% of circumstances. The point I am making is that the punitive concept is widely drawn and is very much in the hands of the sentencer. However, I will take back the noble and learned Baroness’s point about what the lawyers would make of this. We are expanding the definition from the 2003 Act and will see whether more legal advice is needed on the meaning of “exceptional”. However, it cannot mean that the exceptional becomes the general.
Lord Reid of Cardowan
The Minister said something very interesting there and I just want to clarify it as far as we can at this point. He said that some people might regard learning to read and write as punishment, but presumably some others might regard cleaning up a park, building a house or helping old people as punishment—in other words, they would be doing something they would not freely choose to do unless they were compelled to do it as a punishment. Would that fit into this category without having to be an exception?
Lord McNally
Yes, and I think that some of the people who have been quoted as pleading exception could well be asked to work in some of those areas. The noble Lord, Lord Elystan-Morgan, shakes his head but, for me, the big danger is there being public contempt for a system where we need public respect. I am talking about somebody whose life is totally dysfunctional, who has never been used to getting up in the morning and who has no idea of time-keeping. We have heard about a number of programmes where half a dozen people are invited to participate but within a week the number is down to two because the others have not bothered to attend. We have to get credibility into the system to make it work. Because we are putting flexibility and trust in the judiciary, I hope that it will see what Parliament is looking for and help us to that end.
Lord Beecham
This is not on the substance but perhaps I may ask for clarification on what the Minister is moving. Presumably he is not moving the amendments, because we will be doing that when the clauses are recommitted to Committee.
Earl Attlee
If I may assist the Committee, we are speaking to Amendment 155ZA.
Lord Beecham
I know what we are speaking to but we are not voting on it. We are not agreeing these amendments. Perhaps the clerks might advise. Are we not recommitting today’s business at the end of the next debate? I am not sure precisely what the procedure is. I suggest that the amendment be not moved and that we just leave it.
Lord McNally
All is now clear. Yes, we have to accept these amendments but they are then subject to amendment at the next stage. They have to be in the Bill to allow us to proceed; otherwise we will still have a blank page.
Lord Rosser
As long as we are clear—I think we are; and I am not accusing the Minister of being otherwise —that, whatever happens now, if the amendments are in some way agreed, it will be open to us to have effectively a Committee stage next month where amendments to these government amendments can be put down, debated and voted on, if votes are called.
Lord McNally
I can absolutely give those assurances. The clerk advises me, and I am sure she is right, that if we did not move the amendments we would have a blank page. Your Lordships will then have something to put amendments to, so that we can have a proper Committee stage with amendments.
Lord Beecham
These seem exceptional circumstances and, in that light, I am sure that we will accept the ruling.
Lord McNally
“Deferred prosecution agreements
Schedule (Deferred prosecution agreements) makes provision about deferred prosecution agreements.”
Lord McNally
I beg to move this formally. Again, these amendments are purely technical. They either have been previously discussed or are consequential. They just bring the position up to date.
Lord McNally
“(ea) an order under section 22(1);”
Lord McNally
“( ) an order under paragraph 3(1)(c) or 31 of Schedule (Deferred prosecution agreements);”
“( ) an order under section 31 bringing anything in Part 4 of Schedule (Dealing non-custodially with offenders) into force or bringing section (Dealing non-custodially with offenders) into force so far as relating to anything in that Part of that Schedule, other than an order which makes the provision permitted by section 31(4A) or (4B).”
Lord McNally
“Dealing non-custodially with offendersPart 1Community orders: punitive elements1 The Criminal Justice Act 2003 is amended as follows.
2 In section 177 (community orders) after subsection (2) insert—
“(2A) Where the court makes a community order, the court must—
(a) include in the order at least one requirement imposed for the purpose of punishment, or(b) impose a fine for the offence in respect of which the community order is made, or(c) comply with both of paragraphs (a) and (b).(2B) Subsection (2A) does not apply where there are exceptional circumstances which—
(a) relate to the offence or to the offender,(b) would make it unjust in all the circumstances for the court to comply with subsection (2A)(a) in the particular case, and(c) would make it unjust in all the circumstances for the court to impose a fine for the offence concerned.”3 In section 148(2A) (restrictions in subsection (2) on making community orders etc are subject to certain enactments) after “subject to” insert “section 177(2A) (community orders: punitive elements) and to”.
4 An amendment made by this Part of this Schedule does not affect orders in respect of offences committed before the amendment comes into force.
Part 2Deferring the passing of sentence to allow for restorative justice5 After section 1 of the Powers of Criminal Courts (Sentencing) Act 2000 (court’s power to defer passing of sentence) insert—
“1ZA Undertakings to participate in restorative justice activities
(1) Without prejudice to the generality of paragraph (b) of section 1(3), the requirements that may be imposed under that paragraph include restorative justice requirements.
(2) Any reference in this section to a restorative justice requirement is to a requirement to participate in an activity—
(a) where the participants consist of, or include, the offender and one or more of the victims, and(b) which aims to maximise the offender’s awareness of the impact of the offending concerned on the victims.(3) Imposition under section 1(3)(b) of a restorative justice requirement requires, in addition to the offender’s consent and undertaking under section 1(3), the consent of every other person who would be a participant in the activity concerned.
(4) For the purposes of subsection (3), a supervisor appointed under section 1A(2) does not count as a proposed participant.
(5) Where a restorative justice requirement is imposed under section 1(3)(b), the duty under section 1(5) (to give copies of order) extends to every person who would be a participant in the activity concerned.
(6) In this section “victim” means a victim of, or other person affected by, the offending concerned.”
6 In section 1(8) of that Act (effect of sections 1 and 1A to 1D) for “1A” substitute “1ZA”.
7 The amendment made by paragraph 5 does not apply in respect of offences committed before the amendment comes into force.
Part 3Removal of limits on compensation orders made against adults8 (1) Section 131 of the Powers of Criminal Courts (Sentencing) Act 2000 (limit on amount payable under magistrates’ court compensation order) is amended as follows.
(2) Before subsection (1) insert—
“(A1) This section applies if (but only if) a magistrates’ court has convicted a person aged under 18 (“the offender”) of an offence or offences.”
(3) In subsection (1) (compensation in respect of an offence not to exceed £5,000) for “a magistrates’ court in respect of any offence of which the court has convicted the offender” substitute “the court in respect of the offence, or any one of the offences,”.
(4) In subsection (2) (limit in respect of offences taken into consideration) for “a magistrates’” substitute “the”.
(5) In the title, at the end insert “in case of young offender”.
9 In section 33B(5) of the Environmental Protection Act 1990 (limit on compensation in relation to conviction for certain environmental offences) after “payable” insert “in case of young offender”.
10 Nothing in this Part of this Schedule affects orders in respect of offences committed before this Part of this Schedule comes into force.
Part 4Electronic monitoring of offenders11 The Criminal Justice Act 2003 is amended as follows.
12 (1) Section 177 (community orders) is amended as follows.
(2) In subsection (1) (requirements which may be included in a community order)—
(a) omit the “and” after paragraph (k), and(b) after paragraph (l) insert “, and(m) an electronic monitoring requirement (as defined by section 215).”(3) In subsection (2) (provisions to which subsection (1) is subject)—
(a) omit the “and” after paragraph (g), and(b) after paragraph (h) insert “, and(i) section 215(2) (electronic monitoring requirement).”(4) In subsection (3) (curfew or exclusion requirement must be accompanied by electronic monitoring requirement) for “(as defined by section 215)” substitute “within section 215(1)(a) for securing the electronic monitoring of the curfew or exclusion requirement”.
(5) Omit subsection (4) (power, in certain cases where subsection (3) does not apply, to impose requirement for electronic monitoring of another requirement included in the community order).
(6) In consequence, omit section 72(2) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
13 (1) Section 190 (suspended sentence orders) is amended as follows.
(2) In subsection (1) (requirements which may be included in a suspended sentence order)—
(a) omit the “and” after paragraph (k), and(b) after paragraph (l) insert “, and(m) an electronic monitoring requirement (as defined by section 215).”(3) In subsection (2) (provisions to which subsection (1) is subject)—
(a) omit the “and” after paragraph (g), and(b) after paragraph (h) insert “, and(i) section 215(2) (electronic monitoring requirement).”(4) In subsection (3) (curfew or exclusion requirement must be accompanied by electronic monitoring requirement) for “(as defined by section 215)” substitute “within section 215(1)(a) for securing the electronic monitoring of the curfew or exclusion requirement”.
(5) Omit subsection (4) (power, in certain cases where subsection (3) does not apply, to impose requirement for electronic monitoring of another requirement included in the suspended sentence order).
(6) In consequence, omit section 72(4) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
14 In section 192(3)(b) (reviews of suspended sentence order)—
(a) after “electronic monitoring requirement” insert “within section 215(1)(a)”, and(b) for “190(1)” substitute “190(1)(a) to (l)”.15 In section 197(1)(a) (meaning of “the responsible officer” where curfew or exclusion requirement imposed)—
(a) in sub-paragraph (i)—(i) for “177(1)” substitute “177(1)(a) to (l)”, and(ii) for “190(1)” substitute “190(1)(a) to (l)”, and(b) in sub-paragraph (ii) after “requirement” insert “within section 215(1)(a)”.16 (1) Section 215 (electronic monitoring requirement) is amended as follows.
(2) In subsection (1) (“electronic monitoring requirement” is a requirement for securing the monitoring of compliance with other requirements)—
(a) for “for securing the” substitute “to submit to either or both of the following—(a) ”, and(b) at the end insert “, and(b) electronic monitoring of the offender’s whereabouts (otherwise than for the purpose of monitoring the offender’s compliance with any other requirements included in the order) during a period specified in the order.”(3) After subsection (4) insert—
“(4A) Where a relevant order imposes an electronic monitoring requirement, the offender must (in particular)—
(a) submit, as required from time to time by the responsible officer or the person responsible for the monitoring, to—(i) being fitted with, or installation of, any necessary apparatus, and(ii) inspection or repair of any apparatus fitted or installed for the purposes of the monitoring,(b) not interfere with, or with the working of, any apparatus fitted or installed for the purposes of the monitoring, and(c) take any steps required by the responsible officer, or the person responsible for the monitoring, for the purpose of keeping in working order any apparatus fitted or installed for the purposes of the monitoring.”(4) In subsection (5) (electronic monitoring requirement not to be imposed for monitoring compliance with alcohol abstinence and monitoring requirement) after “electronic monitoring requirement” insert “within subsection (1)(a)”.
(5) In subsection (6) (subsection (5) does not prevent electronic monitoring of compliance with other requirements) for “this is” substitute “the electronic monitoring requirement is within subsection (1)(b) or is included”.
17 After section 215 insert—
“215A Data from electronic monitoring: code of practice
(1) The Secretary of State must issue a code of practice relating to processing of data gathered in the course of electronic monitoring of offenders under electronic monitoring requirements imposed by relevant orders.
(2) A failure to observe a code issued under this section does not of itself make a person liable to any criminal or civil proceedings.”
18 (1) Section 218 (availability of arrangements in local area) is amended as follows.
(2) In subsection (4)—
(a) after “electronic monitoring requirement” insert “within section 215(1)(a)”, and(b) in paragraph (b), for “those arrangements” substitute “the arrangements currently available”.(3) After subsection (8) insert—
“(9) A court may not include an electronic monitoring requirement within section 215(1)(b) in a relevant order in respect of an offender unless the court—
(a) has been notified by the Secretary of State that electronic monitoring arrangements are available in the local justice area proposed to be specified in the order,(b) is satisfied that the offender can be fitted with any necessary apparatus under the arrangements currently available and that any other necessary provision can be made under those arrangements, and(c) is satisfied that arrangements are generally operational throughout England and Wales (even if not always operational everywhere there) under which the offender’s whereabouts can be electronically monitored.”19 In Schedule 8 (breach etc of community order) in paragraph 3(b)—
(a) after “electronic monitoring requirement” insert “within section 215(1)(a)”, and(b) for “177(1)” substitute “177(1)(a) to (l)”.20 (1) Schedules 9 and 13 (transfer of community or suspended sentence order to Scotland or Northern Ireland) are amended as follows.
(2) In paragraphs 1(2)(g) and 3(2)(h) of Schedule 9, and paragraphs 1(2)(g) and 6(2)(h) of Schedule 13, after “requirement” insert “within section 215(1)(a)”.
(3) In paragraphs 1(5) and 3(4A) of Schedule 9, and paragraphs 1(5) and 6(4A) of Schedule 13, before “to be complied with” insert “, or an electronic monitoring requirement within section 215(1)(b),”.
21 In Schedule 12 (breach or amendment of suspended sentence order and effect of further conviction) in paragraph 15(2)(b)—
(a) after “electronic monitoring requirement” insert “within section 215(1)(a)”, and(b) for “190(1)” substitute “190(1)(a) to (l)”.Part 5Statements of assets and other financial circumstances of offenders etcFinancial circumstances orders22 In section 162(3) of the Criminal Justice Act 2003 (a “financial circumstances order” is a pre-sentencing order requiring a statement of an offender’s financial circumstances) after “statement of his” insert “assets and other”.
Further amendments23 In section 84 of the Magistrates’ Courts Act 1980 (court’s power to require statement of means)—
(a) in subsection (1) (court may require statement of means before or on inquiring into means under section 82) for “means”, in the second place, substitute “assets and other financial circumstances”, and(b) in the title for “means” substitute “assets and other financial circumstances”.24 In section 20A of the Criminal Justice Act 1991 (false statements as to financial circumstances)—
(a) in subsection (1) (person charged with offence commits further offence if person responds to official request by making false statement etc as to financial circumstances) for “his financial circumstances” substitute “financial circumstances (whether a statement of assets, of other financial circumstances or of both)”, and(b) in subsection (1A) (person charged with offence commits further offence if person fails to provide statement of financial circumstances in response to official request) for “his financial circumstances in response to” substitute “financial circumstances (whether a statement of assets, of other financial circumstances or of both) requested by”.25 In section 13B of the Crime and Disorder Act 1998 (parental compensation orders: the compensation)—
(a) in subsection (4) (provision by parent or guardian of statement of financial circumstances) after “statement of his” insert “assets and other”, and(b) in subsection (6) (provision of false statement) omit “of his financial circumstances”.26 (1) The Courts Act 2003 is amended as follows.
(2) In paragraph 48 of Schedule 5 (offences relating to provision of information as to financial circumstances)—
(a) in sub-paragraph (1) (person commits offence if person responds to relevant request by making false statement etc as to financial circumstances) for “his financial circumstances” substitute “financial circumstances (whether a statement of assets, of other financial circumstances or of both)”,(b) in sub-paragraph (3) (person commits offence if person fails to provide statement of financial circumstances in response to relevant request) for “statement of his financial circumstances to a fines officer in response to” substitute “fines officer with a statement of financial circumstances (whether a statement of assets, of other financial circumstances or of both) requested by”, and(c) in sub-paragraph (5) (meaning of “relevant request”), in the opening words, after “information about P’s financial circumstances” insert “(whether about P’s assets, P’s other financial circumstances or both)”.(3) In paragraph 2 of Schedule 6 (cases in which work order may be made)—
(a) in sub-paragraph (3) (magistrates’ court considering making work order may order person to give statement of means) for “means” substitute “assets and other financial circumstances”, and(b) in sub-paragraph (4) (application of section 84(2) and (4) of the Magistrates’ Courts Act 1980) for “means” substitute “assets and other financial circumstances”.Part 6Information to enable a court to deal with an offenderPower to disclose information27 (1) The Secretary of State or a Northern Ireland Department, or a person providing services to the Secretary of State or a Northern Ireland Department, may disclose social security information to a relevant person.
(2) Her Majesty’s Revenue and Customs, or a person providing services to the Commissioners for Her Majesty’s Revenue and Customs, may disclose finances information to a relevant person.
(3) The disclosure authorised by sub-paragraph (1) or (2) is disclosure of the information concerned for use by a court that, in connection with dealing with a person (“the defendant”) for an offence, is inquiring into or determining the defendant’s financial circumstances.
(4) Sub-paragraphs (1) and (2) do not authorise disclosure in a particular case at a time when the defendant is under 18.
(5) Information disclosed to a relevant person under sub-paragraph (1) or (2) or paragraph (a)(ii)—
(a) must not be further disclosed by the relevant person except—(i) to a court that, in connection with dealing with the defendant for the offence, is inquiring into or determining the defendant’s financial circumstances, or(ii) to another relevant person who wants social security information or finances information in order that it can be put before a court that, in connection with dealing with the defendant for the offence, is inquiring into or determining the defendant’s financial circumstances, and(b) must not be used by the relevant person otherwise than for the purpose of disclosing it as mentioned in paragraph (a)(i) or (ii).(6) Sub-paragraphs (1), (2) and (5)(a) not only authorise disclosure after conviction of the defendant but also authorise disclosure at any time after the defendant is first charged with the offence.
(7) Sub-paragraph (5) does not prohibit—
(a) disclosure to the defendant, or to a person representing the defendant in any proceedings in connection with the offence;(b) disclosure or use of information which is in the form of a summary or collection of information so framed as not to enable information relating to any particular person to be ascertained from it;(c) disclosure or use of information which has previously been disclosed to the public with lawful authority;(d) disclosure or use of information so far as necessary to comply with—(i) an order of a court,(ii) an order of a tribunal established by or under an Act, or(iii) a duty imposed by or under an Act.(8) In sub-paragraph (7) “court” means any court, but elsewhere in this paragraph “court” means—
(a) a magistrates’ court, or the Crown Court, in England and Wales,(b) the Court Martial, the Service Civilian Court or the Summary Appeal Court, or(c) any court hearing an appeal (including an appeal by case stated) from a court within paragraph (a) or (b).(9) In this paragraph—
“finances information” means information which—(a) is about a person’s income, gains or capital, and(b) is held—(i) by Her Majesty’s Revenue and Customs, or(ii) by a person providing services to the Commissioners for Her Majesty’s Revenue and Customs in connection with the provision of those services;“relevant person” means—(a) a person who is appointed by the Lord Chancellor under section 2(1) of the Courts Act 2003 or provided under a contract made by virtue of section 2(4) of that Act,dd(b) a person who is a member of or on the staff of the Service Prosecuting Authority, or(c) a person not within paragraph (b) who is, or who is assisting, a person engaged to represent the Service Prosecuting Authority in proceedings before a court;“Service Prosecuting Authority” means—(a) the Director of Service Prosecutions, and(b) the persons appointed under section 365 of the Armed Forces Act 2006 (prosecuting officers);“social security information” means information which is held for the purposes of functions relating to social security—(a) by the Secretary of State or a Northern Ireland Department, or(b) by a person providing services to the Secretary of State, or a Northern Ireland Department, in connection with the provision of those services,or information which is held with information so held. (10) The reference in sub-paragraph (9) to functions relating to social security includes a reference to functions relating to any of the matters listed in section 127(8) of the Welfare Reform Act 2012 (statutory payments and maternity allowances).
Offence where information wrongly used or disclosed28 (1) It is an offence for a person to disclose or use information in contravention of paragraph 27(5).
(2) It is a defence for a person charged with an offence under sub-paragraph (1) to prove that the person reasonably believed that the disclosure or use concerned was lawful.
(3) A person guilty of an offence under sub-paragraph (1) is liable—
(a) on conviction on indictment—(i) to imprisonment for a term not exceeding 2 years, or(ii) to a fine, or(iii) to both;(b) on summary conviction—(i) to imprisonment for a period not exceeding 12 months, or(ii) to a fine not exceeding the statutory maximum, or(iii) to both.(4) Sub-paragraph (3)(b) applies—
(a) in England and Wales in relation to offences committed before the commencement of section 154(1) of the Criminal Justice Act 2003 (general limit on power of magistrates’ courts to impose imprisonment), and(b) in Northern Ireland,as if the reference to 12 months were a reference to 6 months.(5) A prosecution for an offence under sub-paragraph (1)—
(a) may be instituted in England and Wales only by or with the consent of the Director of Public Prosecutions, and(b) may be instituted in Northern Ireland only by or with the consent of the Director of Public Prosecutions for Northern Ireland.Part 7Related amendments in Armed Forces Act 2006Community orders: punitive elements29 The Armed Forces Act 2006 is amended as follows.
30 In section 178 (service community orders), in subsection (3) (provisions of the 2003 Act in which “community order” includes a service community order) for “177(3)” substitute “177(2A)”.
31 (1) Section 182 (overseas community orders) is amended as follows.
(2) After subsection (3) insert—
“(3A) In section 177(2A) and (2B) of the 2003 Act (community orders: punitive elements) “community order” includes an overseas community order if the offender is aged 18 or over when convicted of the offence in respect of which the overseas community order is made.”
(3) In subsection (5) (provisions of the 2003 Act in which “court” includes a relevant service court) for “those provisions” substitute “the provisions of the 2003 Act mentioned in subsections (3A) and (4)”.
32 In section 270 (restrictions on community punishments) after subsection (2) insert—
“(2A) Subsection (2) is subject to section 177(2A) of the 2003 Act (community orders: punitive elements) as applied by section 178(3) and section 182(3A).”
33 An amendment made by any of paragraphs 30 to 32 does not affect orders in respect of offences committed before the amendment comes into force.
Removal of limits on compensation orders made against adults34 (1) Section 284 of the Armed Forces Act 2006 (Service Civilian Court compensation orders etc: maximum amounts) is amended as follows.
(2) After subsection (2) insert—
“(2A) The following subsections apply if (but only if) the Service Civilian Court has convicted a person aged under 18 (“the offender”) of an offence or offences.”
(3) In subsection (3) (compensation in respect of an offence not to exceed amount mentioned in section 131(1) of the Powers of Criminal Courts (Sentencing) Act 2000) for “any offence of which the court has convicted the offender” substitute “the offence, or any one of the offences,”.
(4) Nothing in this paragraph affects orders in respect of offences committed before the day on which this paragraph comes into force.
Electronic monitoring of offenders35 (1) The Armed Forces Act 2006 is amended as follows.
(2) In section 182(1A) (requirements which may not be included in overseas community orders) at the end insert “or (m) (an electronic monitoring requirement)”.
(3) In section 183(1) (provisions of Criminal Justice Act 2003 which do not apply to overseas community orders) for “section 215” substitute “sections 215 and 215A”.
Statements of assets and other financial circumstances of offenders etc36 In section 266(2) of the Armed Forces Act 2006 (meaning of “financial statement order”) after “statement of his” insert “assets and other”.”
Lord McNally
“Deferred Prosecution AgreementsPart 1GeneralCharacteristics of a deferred prosecution agreement1 (1) A deferred prosecution agreement (a “DPA”) is an agreement between a designated prosecutor and a person (“P”) whom the prosecutor is considering prosecuting for an offence specified in Part 2 (the “alleged offence”).
(2) Under a DPA—
(a) P agrees to comply with the requirements imposed on P by the agreement;(b) the prosecutor agrees that, upon approval of the DPA by the court (see paragraph 8), paragraph 2 is to apply in relation to the prosecution of P for the alleged offence.Effect of DPA on court proceedings 2 (1) Proceedings in respect of the alleged offence are to be instituted by the prosecutor in the Crown Court by preferring a bill of indictment charging P with the alleged offence (see section 2(2)(ba) of the Administration of Justice (Miscellaneous Provisions) Act 1933 (bill of indictment preferred with consent of Crown Court judge following DPA approval)).
(2) As soon as proceedings are instituted under sub-paragraph (1) they are automatically suspended.
(3) The suspension may only be lifted on an application to the Crown Court by the prosecutor; and no such application may be made at any time when the DPA is in force.
(4) At a time when proceedings are suspended under sub-paragraph (2), no other person may prosecute P for the alleged offence.
Designated prosecutors3 (1) The following are designated prosecutors—
(a) the Director of Public Prosecutions;(b) the Director of the Serious Fraud Office;(c) any prosecutor designated under this paragraph by an order made by the Secretary of State.(2) A designated prosecutor must exercise personally the power to enter into a DPA and, accordingly, any enactment that enables a function of a designated prosecutor to be exercised by a person other than the prosecutor concerned does not apply.
(3) But if the designated prosecutor is unavailable, the power to enter into a DPA may be exercised personally by a person authorised in writing by the designated prosecutor.
Persons who may enter into a DPA with a prosecutor4 (1) P may be a body corporate, a partnership or an unincorporated association, but may not be an individual.
(2) In the case of a DPA between a prosecutor and a partnership—
(a) the DPA must be entered into in the name of the partnership (and not in that of any of the partners);(b) any money payable under the DPA must be paid out of the funds of the partnership.(3) In the case of a DPA between a prosecutor and an unincorporated association—
(a) the DPA must be entered into in the name of the association (and not in that of any of its members);(b) any money payable under the DPA must be paid out of the funds of the association.Content of a DPA5 (1) A DPA must contain a statement of facts relating to the alleged offence, which may include admissions made by P.
(2) A DPA must specify an expiry date, which is the date on which the DPA ceases to have effect if it has not already been terminated under paragraph 9 (breach).
(3) The requirements that a DPA may impose on P include, but are not limited to, the following requirements—
(a) to pay to the prosecutor a financial penalty;(b) to compensate victims of the alleged offence;(c) to donate money to a charity or other third party;(d) to disgorge any profits made by P from the alleged offence;(e) to implement a compliance programme or make changes to an existing compliance programme relating to P’s policies or to the training of P’s employees or both;(f) to co-operate in any investigation related to the alleged offence;(g) to pay any reasonable costs of the prosecutor in relation to the alleged offence or the DPA.The DPA may impose time limits within which P must comply with the requirements imposed on P.(4) The amount of any financial penalty agreed between the prosecutor and P must be broadly comparable to the fine that a court would have imposed on P on conviction for the alleged offence following a guilty plea.
(5) A DPA may include a term setting out the consequences of a failure by P to comply with any of its terms.
Code on DPAs6 (1) The Director of Public Prosecutions and the Director of the Serious Fraud Office must jointly issue a Code for prosecutors giving guidance on—
(a) the general principles to be applied in determining whether a DPA is likely to be appropriate in a given case, and(b) the disclosure of information by a prosecutor to P in the course of negotiations for a DPA and after a DPA has been agreed.(2) The Code may also give guidance on any other relevant matter, including—
(a) the use of information obtained by a prosecutor in the course of negotiations for a DPA;(b) variation of a DPA;(c) termination of a DPA and steps that may be taken by a prosecutor following termination;(d) steps that may be taken by a prosecutor when the prosecutor suspects a breach of a DPA.(3) The Code must be set out in the report made by the Director of Public Prosecutions to the Attorney General under section 9 of the Prosecution of Offences Act 1985 for the year in which the Code is issued.
(4) The Code may from time to time be altered or replaced by agreement between—
(a) the Director of Public Prosecutions,(b) the Director of the Serious Fraud Office, and(c) any prosecutor who is for the time being designated by an order made under paragraph 3.(5) If the Code is altered or replaced, the new Code must be set out in the report made by the Director of Public Prosecutions to the Attorney General under section 9 of the Prosecution of Offences Act 1985 for the year in which the Code is altered or replaced.
(6) A prosecutor must take account of the Code in exercising functions under this Schedule.
Court approval of DPA: preliminary hearing7 (1) After the commencement of negotiations between a prosecutor and P in respect of a DPA but before the terms of the DPA are agreed, the prosecutor must apply to the Crown Court for a declaration that—
(a) entering into a DPA with P is likely to be in the interests of justice, and(b) the proposed terms of the DPA are fair, reasonable and proportionate.(2) The court must give reasons for its decision on whether or not to make a declaration under sub-paragraph (1).
(3) The prosecutor may make a further application to the court for a declaration under sub-paragraph (1) if, following the previous application, the court declined to make a declaration.
(4) A hearing at which an application under this paragraph is determined must be held in private, any declaration under sub-paragraph (1) must be made in private, and reasons under sub-paragraph (2) must be given in private.
Court approval of DPA: final hearing8 (1) When a prosecutor and P have agreed the terms of a DPA, the prosecutor must apply to the Crown Court for a declaration that—
(a) the DPA is in the interests of justice, and(b) the terms of the DPA are fair, reasonable and proportionate.(2) But the prosecutor may not make an application under sub-paragraph (1) unless the court has made a declaration under paragraph 7(1) (declaration on preliminary hearing).
(3) A DPA only comes into force when it is approved by the Crown Court making a declaration under sub-paragraph (1).
(4) The court must give reasons for its decision on whether or not to make a declaration under sub-paragraph (1).
(5) A hearing at which an application under this paragraph is determined may be held in private.
(6) But if the court decides to approve the DPA and make a declaration under sub-paragraph (1) it must do so, and give its reasons, in open court.
(7) Upon approval of the DPA by the court, the prosecutor must publish—
(a) the DPA,(b) the declaration of the court under paragraph 7 and the reasons for its decision to make the declaration,(c) in a case where the court initially declined to make a declaration under paragraph 7, the court’s reason for that decision, and (d) the court’s declaration under this paragraph and the reasons for its decision to make the declaration,unless the prosecutor is prevented from doing so by an enactment or by an order of the court under paragraph 12 (postponement of publication to avoid prejudicing proceedings).Breach of DPA9 (1) At any time when a DPA is in force, if the prosecutor believes that P has failed to comply with the terms of the DPA, the prosecutor may make an application to the Crown Court under this paragraph.
(2) On an application under sub-paragraph (1) the court must decide whether, on the balance of probabilities, P has failed to comply with the terms of the DPA.
(3) If the court finds that P has failed to comply with the terms of the DPA, it may—
(a) invite the prosecutor and P to agree proposals to remedy P’s failure to comply, or(b) terminate the DPA.(4) The court must give reasons for its decisions under sub-paragraphs (2) and (3).
(5) Where the court decides that P has not failed to comply with the terms of the DPA, the prosecutor must publish the court’s decision and its reasons for that decision, unless the prosecutor is prevented from doing so by an enactment or by an order of the court under paragraph 12 (postponement of publication to avoid prejudicing proceedings).
(6) Where the court invites the prosecutor and P to agree proposals to remedy P’s failure to comply, the prosecutor must publish the court’s decisions under sub-paragraphs (2) and (3) and the reasons for those decisions, unless the prosecutor is prevented from doing so by an enactment or by an order of the court under paragraph 12 (postponement of publication to avoid prejudicing proceedings).
(7) Where the court terminates a DPA under sub-paragraph (3)(b), the prosecutor must publish—
(a) the fact that the DPA has been terminated by the court following a failure by P to comply with the terms of the DPA, and(b) the court’s reasons for its decisions under sub-paragraphs (2) and (3),unless the prosecutor is prevented from doing so by an enactment or by an order of the court under paragraph 12 (postponement of publication to avoid prejudicing proceedings).(8) If the prosecutor believes that P has failed to comply with the terms of the DPA but decides not to make an application to the Crown Court under this paragraph, the prosecutor must publish details relating to that decision, including—
(a) the reasons for the prosecutor’s belief that P has failed to comply, and(b) the reasons for the prosecutor’s decision not to make an application to the court,unless the prosecutor is prevented from doing so by an enactment or by an order of the court under paragraph 12 (postponement of publication to avoid prejudicing proceedings).Variation of DPA10 (1) At any time when a DPA is in force, the prosecutor and P may agree to vary its terms if—
(a) the court has invited the parties to vary the DPA under paragraph 9(3)(a), or(b) variation of the DPA is necessary to avoid a failure by P to comply with its terms in circumstances that were not, and could not have been, foreseen by the prosecutor or P at the time that the DPA was agreed.(2) When the prosecutor and P have agreed to vary the terms of a DPA, the prosecutor must apply to the Crown Court for a declaration that—
(a) the variation is in the interests of justice, and(b) the terms of the DPA as varied are fair, reasonable and proportionate.(3) A variation of a DPA only takes effect when it is approved by the Crown Court making a declaration under sub-paragraph (2).
(4) The court must give reasons for its decision on whether or not to make a declaration under sub-paragraph (2).
(5) A hearing at which an application under this paragraph is determined may be held in private.
(6) But if the court decides to approve the variation and make a declaration under sub-paragraph (2) it must do so, and give its reasons, in open court.
(7) Where the court decides not to approve the variation, the prosecutor must publish the court’s decision and the reasons for it, unless the prosecutor is prevented from doing so by an enactment or by an order of the court under paragraph 12 (postponement of publication to avoid prejudicing proceedings).
(8) Where the court decides to approve the variation the prosecutor must publish—
(a) the DPA as varied, and(b) the court’s declaration under this paragraph and the reasons for its decision to make the declaration,unless the prosecutor is prevented from doing so by an enactment or by an order of the court under paragraph 12 (postponement of publication to avoid prejudicing proceedings).Discontinuance of proceedings on expiry of DPA 11 (1) If a DPA remains in force until its expiry date, then after the expiry of the DPA the proceedings instituted under paragraph 2(1) are to be discontinued by the prosecutor giving notice to the Crown Court that the prosecutor does not want the proceedings to continue.
(2) Where proceedings are discontinued under sub-paragraph (1), fresh criminal proceedings may not be instituted against P for the alleged offence.
(3) But sub-paragraph (2) does not prevent fresh proceedings from being instituted against P in a case where, after a DPA has expired, the prosecutor finds that, during the course of the negotiations for the DPA—
(a) P provided inaccurate, misleading or incomplete information to the prosecutor, and(b) P knew or ought to have known that the information was inaccurate, misleading or incomplete.(4) A DPA is not to be treated as having expired for the purposes of sub-paragraph (1) if, on the expiry date specified in the DPA—
(a) an application made by the prosecutor under paragraph 9 (breach) has not yet been decided by the court,(b) following an application under paragraph 9 the court has invited the parties to agree proposals to remedy P’s failure to comply, but the parties have not yet reached an agreement, or(c) the parties have agreed proposals to remedy P’s failure to comply following an invitation of the court under paragraph 9(3)(a) but P has not yet complied with the agreement.(5) In the case mentioned in sub-paragraph (4)(a)—
(a) if the court decides that P has not failed to comply with the terms of the DPA, or that P has failed to comply but does not take action under paragraph 9(3), the DPA is to be treated as expiring when the application is decided;(b) if the court terminates the DPA, the DPA is to be treated as not having remained in force until its expiry date (and sub-paragraph (1) therefore does not apply);(c) if the court invites the parties to agree proposals to remedy P’s failure to comply, the DPA is to be treated as expiring when the parties have reached such an agreement and P has complied with it. (6) In the case mentioned in sub-paragraph (4)(b), the DPA is to be treated as expiring when the parties have reached an agreement and P has complied with it.
(7) In the case mentioned in sub-paragraph (4)(c), the DPA is to be treated as expiring when P complies with the agreement.
(8) Where proceedings are discontinued under sub-paragraph (1), the prosecutor must publish—
(a) the fact that the proceedings have been discontinued, and(b) details of P’s compliance with the DPA,unless the prosecutor is prevented from doing so by an enactment or by an order of the court under paragraph 12 (postponement of publication to avoid prejudicing proceedings).Court order postponing publication of information by prosecutor12 The court may order that the publication of information by the prosecutor under paragraph 8(7), 9(5), (6), (7) or (8), 10(7) or (8) or 11(8) be postponed for such period as the court considers necessary if it appears to the court that postponement is necessary for avoiding a substantial risk of prejudice to the administration of justice in any legal proceedings.
Use of material in criminal proceedings13 (1) Sub-paragraph (2) applies where a DPA between a prosecutor and P has been approved by the Crown Court under paragraph 8.
(2) The statement of facts contained in the DPA is, in any criminal proceedings brought against P for the alleged offence, to be treated as an admission by P under section 10 of the Criminal Justice Act 1967 (proof by formal admission).
(3) Sub-paragraph (4) applies where a prosecutor and P have entered into negotiations for a DPA but the DPA has not been approved by the Crown Court under paragraph 8.
(4) Material described in sub-paragraph (6) may only be used in evidence against P—
(a) on a prosecution for an offence consisting of the provision of inaccurate, misleading or incomplete information, or(b) on a prosecution for some other offence where in giving evidence P makes a statement inconsistent with the material.(5) However, material may not be used against P by virtue of sub-paragraph (4)(b) unless evidence relating to it is adduced, or a question relating to it is asked, by or on behalf of P in the proceedings arising out of the prosecution.
(6) The material is—
(a) material that shows that P entered into negotiations for a DPA, including in particular—(i) any draft of the DPA;(ii) any draft of a statement of facts intended to be included within the DPA;(iii) any statement indicating that P entered into such negotiations;(b) material that was created solely for the purpose of preparing the DPA or statement of facts.Money received by prosecutor under a DPA14 Any money received by a prosecutor under a term of a DPA that provides for P to pay a financial penalty to the prosecutor or to disgorge profits made from the alleged offence is to be paid into the Consolidated Fund.
Part 2Offences in relation to which a DPA may be entered intoCommon law offences15 Conspiracy to defraud.
16 Cheating the public revenue.
Statutory offences17 An offence under any of the following sections of the Theft Act 1968—
(a) section 1 (theft); (b) section 17 (false accounting);(c) section 20 (suppression etc of documents);(d) section 24A (dishonestly retaining a wrongful credit).18 An offence under any of the following sections of the Customs and Excise Management Act 1979—
(a) section 68 (offences in relation to exportation of prohibited or restricted goods);(b) section 167 (untrue declarations etc);(c) section 170 (fraudulent evasion of duty etc).19 An offence under any of the following sections of the Forgery and Counterfeiting Act 1981—
(a) section 1 (forgery);(b) section 2 (copying a false instrument);(c) section 3 (using a false instrument);(d) section 4 (using a copy of a false instrument);(e) section 5 (offences relating to money orders, share certificates, passports etc).20 An offence under section 450 of the Companies Act 1985 (destroying, mutilating etc company documents).
21 An offence under section 72 of the Value Added Tax Act 1994 (fraudulent evasion of VAT).
22 An offence under any of the following sections of the Financial Services and Markets Act 2000—
(a) section 23 (contravention of prohibition of carrying on regulated activity unless authorised or exempt);(b) section 25 (contravention of restrictions on financial promotion);(c) section 85 (prohibition of dealing etc in transferable securities without approved prospectus);(d) section 346 (provision of false or misleading statements to auditor or actuary);(e) section 397 (misleading statements and practices);(f) section 398 (misleading the FSA).23 An offence under any of the following sections of the Proceeds of Crime Act 2002—
(a) section 327 (concealing etc criminal property);(b) section 328 (arrangements facilitating acquisition etc of criminal property);(c) section 329 (acquisition, use and possession of criminal property);(d) section 330 (failing to disclose knowledge or suspicion of money laundering);(e) section 333A (tipping off).24 An offence under any of the following sections of the Companies Act 2006—
(a) section 658 (general rule against limited company acquiring its own shares);(b) section 680 (prohibited financial assistance);(c) section 993 (fraudulent trading).25 An offence under any of the following sections of the Fraud Act 2006—
(a) section 1 (fraud);(b) section 6 (possession etc of articles for use in frauds);(c) section 7 (making or supplying articles for use in frauds);(d) section 11 (obtaining services dishonestly).26 An offence under any of the following sections of the Bribery Act 2010—
(a) section 1 (bribing another person);(b) section 2 (being bribed);(c) section 6 (bribery of foreign public officials);(d) section 7 (failure of commercial organisations to prevent bribery). 27 An offence under regulation 45 of the Money Laundering Regulations 2007 (S.I. 2007/2157).
Ancillary offences28 Any ancillary offence relating to an offence specified in this Part.
Interpretation of this Part29 “Ancillary offence”, in relation to an offence, means—
(a) aiding, abetting, counselling or procuring the commission of the offence;(b) an offence under Part 2 of the Serious Crime Act 2007 (encouraging or assisting crime) in relation to the offence;(c) attempting or conspiring to commit the offence.30 This Schedule applies in relation to conduct occurring before the commencement of this Schedule as if an offence specified in this Part included any corresponding offence under the law in force at the time of the conduct (and for the purposes of this paragraph, the common law offence of inciting the commission of another offence is to be treated as an offence corresponding to an offence under Part 2 of the Serious Crime Act 2007).
Power to amend this Part31 The Secretary of State may by order amend this Part by—
(a) adding an offence of financial or economic crime;(b) removing an offence.Part 3Deferred Prosecution Agreements: Consequential and Transitional ProvisionConsequential amendments32 In section 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 (procedure for indictment of offenders), in subsection (2) after paragraph (b) insert—
“(ba) the bill is preferred with the consent of a judge of the Crown Court following a declaration by the court under paragraph 8(1) of Schedule (Deferred prosecution agreements) to the Crime and Courts Act 2013 (court approval of deferred prosecution agreement); or”.33 In section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 (issue of witness summons on application to the Crown Court), after subsection (6) insert—
“(6A) Where the proceedings concerned relate to an offence that is the subject of a deferred prosecution agreement within the meaning of Schedule (Deferred prosecution agreements) to the Crime and Courts Act 2013, an application must be made as soon as is reasonably practicable after the suspension of the proceedings is lifted under paragraph 2(3) of that Schedule.”
34 In Schedule 1 to the Contempt of Court Act 1981 (times when proceedings are active for purposes of strict liability rule for contempt of court), in paragraph 7, after paragraph (aa) insert—
“(ab) in England and Wales, if they are discontinued by virtue of paragraph 11 of Schedule (Deferred prosecution agreements) to the Crime and Courts Act 2013 (deferred prosecution agreements);”.35 In section 15 of the Prosecution of Offences Act 1985 (interpretation), in subsection (2)(d) after “(b)” insert “or (ba)”.
36 In section 51 of the Criminal Justice and Public Order Act 1994 (intimidation etc of witnesses, jurors and others), in subsection 10(a)(iii) after “2(2)(b)” insert “or (ba)”.
37 (1) The Criminal Procedure and Investigations Act 1996 is amended as follows.
(2) In section 1 (application of Part 1: disclosure), in subsection (2), after paragraph (f) insert “, or
(g) following the preferment of a bill of indictment charging a person with an indictable offence under the authority of section 2(2)(ba) of the Administration of Justice (Miscellaneous Provisions) Act 1933 (bill of indictment preferred with consent of Crown Court judge following approval of deferred prosecution agreement), the suspension of the proceedings against the person under paragraph 2(2) of Schedule (Deferred prosecution agreements) to the Crime and Courts Act 2013 is lifted under paragraph 2(3) of that Schedule.” (3) In section 28 (application of Part 3: preparatory hearings), in subsection (1)(c) after “2(2)(b)” insert “or (ba)”.
(4) In section 39 (meaning of pre-trial hearing), in subsection (2)(a) after “2(2)(b)” insert “or (ba)”.
(5) In Schedule 3 (fraud), in paragraph 8(1)(c) after “2(2)(b)” insert “or (ba)”.
38 In section 85 of the Proceeds of Crime Act 2002 (proceedings), in subsection (1)(c) at the end insert “or subsection (2)(ba) of that section (preferment by Crown Court judge following approval of deferred prosecution agreement)”.
Transitional provision39 (1) Conduct constituting an alleged offence that occurred before the relevant commencement day may be taken into account for the purposes of this Schedule.
(2) In this paragraph, the “relevant commencement day” means—
(a) in a case where the alleged offence is an offence that is specified in Part 2 when this Schedule comes into force, the day on which this Schedule comes into force;(b) in a case where the alleged offence is an offence that is subsequently added to Part 2 (whether by order under paragraph 31 or otherwise), the day when the enactment adding that offence to Part 2 comes into force.”
Lord McNally
First, I thank the House for its understanding. I am sure that your Lordships will not find when you wake up tomorrow morning that you have cleared the Bill at all its stages and that it will not be coming back. It was a slightly unusual procedure and I am very grateful to the House for its co-operation on it. I hope that once people have had a chance to look at Hansard and see the new shape of the Bill we can, in two weeks’ time, have a proper Committee stage with amendments and the rest. We now turn to the second part of what we were trying to do, which is to bring in the deferred prosecution agreement.
These amendments introduce a new tool for tackling corporate economic crime: deferred prosecution agreements. DPAs will enable more organisations involved in wrongdoing to be brought to justice and secure better outcomes for victims. Last year alone, fraud cost its victims and the taxpayer an estimated £73 billion. This is unacceptable. More needs to be done to hold organisations involved in such wrongdoing to account. As noble Lords will be aware, this Government are committed to making sure that there is the same tough response to economic crime as for any other kind of offending. This harmful activity, which undermines the economy, must be tackled.
We have already brought into force the Bribery Act 2010 and published a national strategic plan, Fighting Fraud Together. Furthermore, the Bill will establish the National Crime Agency, which will have a strong focus on combating economic crime. DPAs are the next step in the battle against economic crime. Currently, prosecuting an organisation for economic crime can pose significant challenges. Such prosecutions often take many years and cost millions of pounds. In many cases, a prosecution and conviction can do more harm than good. Organisations may go out of business, shareholders may lose their investments and employees may be out of work.
The key elements of this scheme are set out in the proposed new schedule in this group of amendments. A DPA will be a voluntary agreement between a prosecutor and an organisation under investigation for economic crime. In return for complying with tough terms and conditions, a prosecution will be commenced but deferred for the duration of the agreement. If the organisation successfully complies with the terms of the agreement, the prosecution will be dropped. In this way, organisations would be held to account for their wrongdoing without the uncertainty, expense or length of a criminal trial. However, if the organisation does not comply with the agreement they can be prosecuted in the usual way. The agreement will be subject to oversight and scrutiny by the judiciary to ensure that it is in the interests of justice and that its terms are fair, reasonable and proportionate. Once agreed and approved by the court the agreement will be fully transparent, with the terms being published for all to see.
Initially, the Director of Public Prosecutions and the director of the Serious Fraud Office will be the only prosecutors able to enter into a DPA. This is because they are, by and large, the prosecutors responsible for bringing proceedings for the relevant offences. However, this may not always be the case. The list of relevant economic offences set out in Part 2 of the proposed new schedule may change, as might the role and remit of different prosecutors. That is why we have provided a power for the Secretary of State to designate further prosecutors as being capable of entering into a DPA. Any decision by a prosecutor to enter into a DPA must be made by the director of the relevant prosecuting agency personally, to ensure that there is prosecutorial oversight of each agreement at the highest level.
These agreements may be used only to address alleged economic offending by organisations. Let me be clear: a DPA cannot be entered into with an individual, nor may they be entered into for just any crime. They have been developed to provide an additional tool to assist in the battle against economic wrongdoing by organisations. Individuals who commit economic crime will be best dealt with through criminal prosecution, where a range of punishments and sanctions are available—including the ultimate punishment of imprisonment.
Paragraph 5 of the proposed new schedule sets out the terms that a DPA must and may contain. If DPAs are to be meaningful, they must make clear what wrongdoing they seek to address and what sanctions are being imposed for dealing with this. For that reason, every DPA will contain a statement agreed between the parties setting out the facts of the case.
Each agreement will set out stringent measures with which an organisation must comply. These measures will need to be proportionate to the alleged wrongdoing and capable of being tailored to the facts of the case. The proposed new schedule does not set out every possible term and condition; that is for the parties to decide. However, it does provide examples of terms that might be appropriate. The terms may include compensating victims of the organisation’s wrongdoing and payment of a financial penalty. Other conditions may require the organisation to put in place a robust compliance and monitoring programme or to pay the prosecutor’s costs.
In determining the level of any financial penalty, the amount must broadly reflect the fine that a court would have imposed on a conviction following an early guilty plea by the organisation. Both parties will need to take account of the various factors that would be considered by a sentencing court, including relevant sentencing guidelines relating to offences, application of the early guilty plea reduction and the means of the organisation. Organisations will not be getting off lightly.
Lord Beecham
My Lords, the Minister may not have noticed but during his speech the clock stopped after seven minutes so we had “007” on the clock. Having seen “Skyfall” the other night, I do not quite see the noble Lord as Daniel Craig mark II, but I am sure that he would do very well in that capacity.
Lord McNally
The noble Lord should see me in my swimming trunks before making that judgment.
Lord Beecham
I am too young to appreciate that offer.
It is ironic that notice of the Government’s intention to proceed with amendments to the Bill to legislate for deferred prosecution agreements should itself have been deferred until barely a week before today’s debate. It is quite unacceptable for material to be made available—indeed, its very existence to be revealed—only five days ago. I appreciate that this is by way of a Second Reading debate but Ministers must have formed the intention of bringing these measures forward months ago, presumably at a time when the expected debate on community sentencing had been scheduled to take place very soon after the end of the Summer Recess. I assume that the date was altered to accommodate the change of Lord Chancellor. It is reasonable to seek to accommodate Ministers in such circumstances but entirely unreasonable to make so little effort to accommodate Members of your Lordships’ House. For the record, can we know whether the new Lord Chancellor is to be in charge of this part of the Bill or whether Mr Clarke will be responsible for it in the time he now has to spare without an attachment to a portfolio? Can the Minister also say when the Explanatory Notes for this part of the Bill will be available to Members of your Lordships’ House?
It is not as if the Government’s proposals are unimportant, breaking new ground as they do, in our system of justice. I acknowledge immediately that consideration was given to and work undertaken around the issues raised in this belated addition to the Bill by the previous Government. Indeed, it might be argued that they are, in a way, an extension of the conditional cautions introduced by the previous Government, although, as my noble and learned friend Lord Goldsmith—who might claim paternity of that policy—has pointed out to me, they are at the other end of the offending scale.
We are, after all, apparently seeking to emulate the American system, under which what are often described as aggressive prosecutors drive hard bargains with offending corporations resulting in huge payments—five times as much, or sometimes much more than that, according to the impact statement, as is likely to be yielded under what we are now contemplating.
I confess to an initial reluctance to embrace a situation in which, in the area of economic crime—for that, as the Minister has made clear, is the area to which the proposals are addressed—one class of defendants should have the opportunity of buying off a prosecution for a one-third discount or, to be more precise, an up to one-third discount, of the fine they might otherwise have to pay. The Committee will need to be convinced that such an approach is acceptable in all the circumstances, and the public will need to be convinced that we are not creating a privileged class of potential defendants without achieving a significant benefit, not only in cash terms but also in terms of corporate behaviour. Hugging a hoodie was never an attractive notion to many people. Hugging a bent bank or crooked company is even less likely to appeal.
Is not the reality that these proposals stem essentially from the failure of the Serious Fraud Office to tackle economic crime effectively? It brings few cases and, all too often, as in the recent Tchenguiz case, fails lamentably to prove them after devoting years to the task. That case evinced a warning from the High Court that the Serious Fraud Office did not have the,
“proper resources, both human and financial”,
to investigate it and, by implication, others like it.
The question arises as to whether Ministers believe that the SFO has the resources to do its job effectively, not least in the light of budget cuts already amounting to £7 million, or 19%, since 2009-10, and planned to fall by a further £3 million, or 7%, by 2015.
Noble Lords may be surprised to learn, as I was, that top salaries in the Serious Fraud Office are in the range of £70,000 to £80,000 per annum, roughly what an assistant solicitor in a City firm acting for corporate clients might expect to earn soon after qualifying.
Unsurprisingly, the SFO has tended to use civil recovery orders under the Proceeds of Crime Act, a process which has aroused the concern of the OECD, not least because such a procedure does not lead to a disclosure of the nature of the wrongdoing or the basis of the settlement. I appreciate that the Minister has made it clear that these proposals would, in the event of matters being concluded, lead to such a disclosure and also, presumably, the basis of the settlement. The whole scenario hitherto smacks of recent concerns about the manner in which Her Majesty’s Revenue and Customs have apparently settled claims on terms appearing too generous to some major companies.
Will the new proposals be better resourced than the present system under the SFO which is signally prone to failure, as it has proved? Will the relevant agencies have the,
“proper resources, both human and financial”
to emulate its American counterparts? Will the Government look again at the issue of vicarious liability for the dishonesty of corporate employees rather than relying on the present, if archaic, doctrine of the directing mind, under which there is no such liability on behalf of the corporation unless a director or senior manager is involved?
In their response to the consultation document the Government indicated that they would,
“limit the application of DPAs to economic crimes, but provide for the list of economic crimes for which a DPA is available to be amended”.
Will this be by regulation or primary legislation and, if the former, by the affirmative or negative procedure?
Lord Marks of Henley-on-Thames
My Lords, I welcome the proposals for deferred prosecution agreements in the proposed new schedule. They provide a comprehensive and workable code for a useful new procedure. The proposals are no worse for being an American import. Although I note the point of the noble Lord, Lord Beecham, that in America aggressive prosecutors may misuse such procedures, I do not believe the proposals in these amendments echo that danger.
These proposals are not dissimilar to procedures familiar in this jurisdiction over a number of years. Tax penalties, VAT penalties and customs penalties are examples of authorities not prosecuting when offences are committed but where the process of prosecution is replaced by the imposition of a penalty. Even the humble fixed penalty for motorists has its parallels.
The development these proposals introduce is a voluntary agreement to defer a prosecution where a company or a partnership is prepared to commit to payment of money to the prosecuting authority, to victims or to charity, to introduce compliance procedures and to co-operate in investigations.
The procedures are similar in many ways to the way in which the Environment Agency has operated over a number of years by enabling polluters to avoid prosecution for environmental offences by ensuring that offenders voluntarily clean up the pollution caused, pay any necessary compensation and introduce procedures in future to ensure compliance with the law. These arrangements save large sums of money, avoid the uncertainty of prosecution, ensure future compliance and extract compensation for victims and the prosecuting authorities where appropriate.
I do not believe that there are parallels between these proposals and hugging hoodies, as the noble Lord, Lord Beecham, suggests. They establish a way of achieving the results to be gained from a successful prosecution, sometimes in exceedingly complex and difficult cases, without the costs and uncertainties of getting those results.
Of course the criticism may be made that DPAs amount to something akin to plea bargaining. In one sense that criticism is justified. However, the provision at paragraph 5(4) of the proposed new schedule—that the amount of any financial penalty agreed between the prosecutor and P, the offender, must be broadly comparable to the fine that a court would have imposed on P on conviction for the alleged offence following a guilty plea—goes much of the way towards answering that criticism. The two-stage arrangement proposed in the schedule also adds transparency and protection of the public to the proposals.
I have two points for consideration which may suggest that at this stage the proposals do not go far enough. Paragraph 4 of the schedule provides that P, the party entering into an agreement with the prosecuting authority, may not be an individual. I am not entirely clear why the distinction between individuals and corporations or partnerships needs to be drawn. It seems to me at first blush that it is the nature of the offence that is important, not the nature of the offender. I would suggest that the common threads running through cases suitable for DPAs are, first, the willingness of the offender to admit to guilt; secondly, the willingness to pay a financial penalty; thirdly, and perhaps of paramount importance, the suitability of a financial penalty and compliance measures to the facts of the case and to the seriousness of the offence; fourthly, a willingness to co-operate in an investigation of how the offences happened so as to assist the prosecuting authority in understanding the offences and in taking measures to avoid repetition; and finally, a willingness to put compliance measures in place on the part of the offender to ensure that there is no repetition of the offences. I would suggest that these conditions can be as easily met in the case of an individual offender as in the case of a corporation or partnership, even though DPAs would of course be more commonly suitable for corporations or partnerships.
It has been suggested that a distinction can be drawn between individuals and organisations from the self-evident fact that a corporation cannot be imprisoned. I am not sure that that answers the point. If an offence warrants a sentence of imprisonment—this is an important answer to some of the points made by the noble Lord, Lord Beecham—the prosecuting authority will not agree to a DPA in the first place, and that is whether the sentence is warranted for an individual or for the officers of a company in their individual capacity. So DPAs cannot be used where a sentence of imprisonment ought to be imposed, if a sensible prosecuting authority is in place and goes before a judge seeking permission to make such an exceptional agreement.
Lord Phillips of Sudbury
I am most grateful to my noble friend. Can he tell the Committee where that provision is to be found in the proposed schedule?
Lord Marks of Henley-on-Thames
It can be inferred from the fact that there is a proposal that the prosecuting authority has to go to a judge at the preliminary hearing to persuade the judge that the case is suitable for a DPA. If a prison sentence ought to be imposed on the person “P”, that agreement would not be forthcoming. That, I suggest, would be the effect of the proposal, although it may be necessary to make it clear by amendment; I appreciate that.
My second point is that the offences covered in Part 2 are economic and financial, and only financial and economic offences may be added to the list by delegated legislation. I wonder whether the restriction, not as to the legislation but as to the offences, is entirely justified. Environmental offences, for instance, seem appropriate. There are other random examples of offences contrary to regulation that might be suitable, such as offences against fishing regulations regarding net mesh sizes and permitted catches. Those may be examples, and there are many more. There are other regulatory provisions where DPAs might be appropriate. Perhaps it may be as well to let us see how DPAs work with the offences listed in the schedule at this point and then look to amend the legislation in the future. Certainly as a member of your Lordships’ Select Committee on Delegated Powers and Regulatory Reform, I see the difficulty of adding large numbers of offences to the list by delegated legislation, as the noble Lord, Lord Beecham, pointed out. However, I suspect that our early suspicions of DPAs will wane in practice and that they may become tools of wider use and greater utility than is now envisaged.
Lord Goldsmith
My Lords, first I want to declare an interest. As my noble friend Lord Beecham said, I had something to do with an earlier consideration of similar problems when my party was in Government and I was in office, and I want to say something about that in a moment. I also declare that I am currently a practising lawyer and that I and my firm get involved in the sort of cases that this may be concerned with. I have seen how these systems work in the United States and I have thought about them quite hard. I want to make it clear that broadly speaking I am in favour of the proposal for deferred prosecution agreements. However, I have some questions that I will come to, and I understand very well the point made by my noble friend about the timing of the proposals being brought forward.
Before I turn to the substance of what I want to say, I am a little confused at the moment about the procedure that is being followed. This may be because unfortunately I was detained from coming to the House when noble Lords were considering the previous group of amendments. I came in at the tail end to hear something that I am not quite sure I understood, about matters being discussed again on a future occasion. But unless I have misunderstood, I notice that the noble Lord, Lord McNally, has moved government Amendment 155ZB, which provides for the introduction of a schedule relating to deferred prosecution agreements. Without, as it were, dissent, we seem at least to have got the concept of a schedule into the Bill. Whether that means that the noble Lord is going to move the schedule as a complete schedule, I am not sure, but if he does, that gives rise to questions about whether there will be any real opportunity to debate or amend its provisions. I want to ask some questions about the detail, so I would be grateful if the noble Lord could explain the situation.
Lord McNally
We are all in a form of something that is not quite unique territory. Because we have used this device, it may be that an eagle-eyed lawyer will spot a contradiction in process. What I will give as an absolute guarantee to the Committee, by whatever means we use to do it, is that this is intended as if it were a Second Reading debate. Any amendments that need to be made and any further consideration of the detail will be permitted when we come back to the Bill on 13 November. I hope that that gives the noble and learned Lord the reassurance he is seeking.
Lord Goldsmith
I am grateful for that. It makes sense because the questions I want to raise are very much in the nature of those put in a Second Reading debate. Let me explain first why I am broadly in favour of this approach. While I agree with a number of the points made by the noble Lord, Lord Marks of Henley-on-Thames, I think he missed the main point. The main point of DPAs is not so much to substitute a financial penalty or something of that kind for a conviction, it is to provide a mechanism to change behaviour. The critical point is to agree conditions which act as a carrot and a stick. If you go forward and you comply with conditions that change your behaviour, you will not find yourself being prosecuted and convicted. A classic example of this which is not in the field of economic crime—I want to come back to that point—would be disposals in relation to people who have been involved in drug offences. You want to find a way there of changing their behaviour in taking and dealing drugs. In some jurisdictions in the United States, that is done by having in effect a deferred prosecution agreement under which they agree some pretty tough conditions about how they deal with their drug problem, including treatment, regular testing and so forth. If they fail, they go back to court and are dealt with very heavily; if they succeed, it is very much to their benefit, and also of course to that of the public, that the problem is removed.
The idea of a deferred prosecution agreement, in my mind, is to change behaviour by having a carrot and a stick. Therefore, the conditions that the schedule provides may be entered into include conditions, for example, for future compliance—which is critical, it seems to me—by someone who is subject to a DPA of their business, because that is the way this is drafted at the moment. That is desirable. Indeed, I became of the view that something like this was necessary during the course of my time in office when I recognised that we did not have the ability under English law to say to somebody, “OK, you say you are contrite and that you are prepared to do all these things. That is very good and we will give you credit for it, but I am sorry—you are still going to be convicted. You will have a conviction, which means that when you come to take employment or apply for whatever it may be, you will have that against you”. I thought it was a tool that we ought to have to be able to avoid that. It plainly does not apply in every case—let me make that very clear—and many offences require very significant and severe penalties to be imposed. I am not a softie when it comes to any of that at all. However, I came to the view that we ought to have something of that sort.
We did not have it, although my noble friend Lord Beecham is right that we ended up, I think, with the Criminal Justice Act 2003. I may have got the Act wrong, as we did pass one or two Criminal Justice Acts in our time—noble Lords will forgive me if I cannot distinguish them all from each other with absolute precision. We provided for a conditional caution, which is different from a fixed penalty, as it was a caution with conditions attached; for example, to go on an anger management course, a drug or more likely drink treatment course. A prosecution did not take place at that time, but if the person did not comply with the conditions, they could be prosecuted and sentenced for the original offence. That idea is already in our system, although, as my noble friend has said, quoting my words, at the other end of the scale of offending. In principle, it is a good idea. We commissioned a review on fraud with the Chief Secretary to the Treasury in the belief that we did not deal adequately with economic crime in this country on a number of grounds. It came up with some recommendations, including something along these lines.
I will turn, with that degree of general Second Reading-type support, to the some of my questions. The first is the one raised by the noble Lord, Lord Marks, about whether it is right that this should be limited to companies or business organisations. There is a lot to be said for having this tool available in relation to individuals as well, and I have already given a couple of examples where that could be useful. I recognise that, as it stands, the proposal gives rise to the concern that this is just for business to buy its way out of prosecution. Actually, if this was a broader power, which was only applied appropriately, that concern would start to disappear. There are circumstances in which I believe individuals and the public would benefit from such a power. If one is limiting it to corporations and businesses, it is quite difficult to fully justify that. If this were restricted to offences such as those under Section 7 of the Bribery Act—where I think this will be used quite a lot—that do not involve what we would call a “guilty mind” on behalf of a corporation, in that it is an offence that it is guilty of despite a lack of intention to commit the offence, it might be justifiable. However, the offences that are included potentially include offences where the corporation or partnership would only be guilty if there was a guilty mind. I am not convinced and would like to hear more from the Minister as to why it is thought to be right.
Along with the noble Lord, Lord Marks of Henley-on-Thames, I am not convinced that it is right to limit the availability of this power to economic crime. He mentioned a number of areas. I cannot comment on the fishing side, as I am just a town boy and have never understood that side of things, but he is right about environmental issues, which are terribly serious, where sometimes you want to impose some form of regime that means that the business will operate in a much better way in the future, although you may have some penalty attached at that time as well. Health and safety is another area. I do not want to minimise health and safety offences, which are very important, but that is another area where businesses, and the public, might benefit from this sort of review. I invite the noble Lord to say a little more about why it is limited in this way. Is it because it is thought this might get it through this House and Parliament or are there other, more principled, reasons? It gives rise as it stands to the objections that my noble friend has raised.
I will raise some more specific points on paragraph 5. It is noted that a DPA, in the statement of facts, may include “admissions made” by the person who is subject to the order. This is unlike the conditional caution regime, which requires admission for it to operate. I assume that this is a deliberate decision by the Government so that DPAs can be imposed on people who are not admitting the offence at all. I do not object to that, as it may be quite a good way of dealing with certain situations where the prosecution are not sure that they can prove the case but someone is prepared to pay a penalty, pay compensation and change their behaviour for the future. However, I ask the noble Lord whether that is the intention behind this. Paragraph 5(3)—
Lord Phillips of Sudbury
Does the noble and learned Lord not think that if he pursues that line, it will enable the party that has entered into the DPA to get away even more with what they have done? I think I am right in saying that in the United States, with a plea bargain, they at least have to admit that there has been some wrongdoing. If they do not even have to admit that, the public relations impact of one of these DPAs will be even less that it will be anyhow.
Lord Goldsmith
The noble Lord may be right about that. I am asking the Minister a question about the thinking. One has to recognise that there are cases where the prosecution cannot actually prove the case, or it would be enormously expensive to do so, with uncertain prospects. I can see that there may be circumstances where getting a regime that for example secures compliance for the future may be worth while. However, that is only my speculation as to why “may” is there rather than “must”, which I would have expected based on the conditional cautions.
Paragraph 5(3)(e) talks about the implementation of a “compliance programme” and I would like the noble Lord to say something about what sort of compliance programmes the Government have in mind, and whether they would include, for example, the putting in place of monitors, and whether that is something that can be sufficiently dealt with by the words here or whether it needs some specific language. As regards paragraph 6 of the code on DPAs, is it intended, as my noble friend Lord Beecham asked, for the code to be placed before Parliament—as is the code for the crown prosecutors, if my recollection serves me right? I can see that Parliament would have an interest in that.
Paragraphs 7 and 8 would require the prosecutor to apply at different stages for declarations in certain terms that entering into a DPA is likely to be,
“ in the interests of justice”—
and that the proposed terms of the DPA—
“are fair and reasonable and proportionate”.
Is it necessary to ask a court to do that? Plainly, the court must be asked to approve the solution. However, I am not sure whether one should also ask the court to make declarations as to these matters. I would like to hear from the Minister as to the thinking behind that. As I understand it, under paragraph 8, the final hearing must be in public, whereas the preliminary application would be in private. I would be grateful for confirmation as to that.
Paragraph 11 deals with discontinuance of the DPA. I am probably missing it but I looked for a clear statement that if there is a finding of non-compliance by the court, that is likely to result in criminal proceedings being instituted. Finally, I, too, would welcome hearing what the proposals are in relation to addition to this schedule and the procedure that will be adopted.
I apologise for that quite long list. This is an important provision. It is a bit difficult to see how we are going to deal with it in a second Committee stage. I am looking forward with great interest to seeing whether the Minister is actually moving the whole of the schedule now so it goes into the Bill and we then apply to amend it, but I accept his assurances that if that is what happens, we will be able to apply to amend it hereafter.
Lord Woolf
My Lords, I think that this is a very positive step and could be very valuable in the administration of justice. We should be aware that in the States there has been a risk of unattractive practices developing in this field, but as long as we have the appropriate code and safeguards, that should be able to be overcome.
I listened with care to the comments made by the noble Lord, Lord Marks of Henley-on-Thames, on limiting this to corporate bodies and not extending it to individuals. I suggest that there is substance in his concern, which the noble and learned Lord, Lord Goldsmith, feels may have force. The danger of not allowing individuals also to be dealt with is not the risk of them getting away with it, but of preventing an agreement being reached when it should be reached and when the very extensive powers indicated in paragraph 5(3) would be of great benefit to the public. I draw particular attention to compensating victims, donating money to charity and disgorging any profits made by P. The reality is that behind every company there are individuals. If the individuals are not going to be covered by the agreements, the agreements will be very much less attractive in practice to the corporate sector than they would if individuals could be included. Perhaps we should look at the question of whether it would not be better to enable the matter to be dealt with once and for all, for both officers of a company and the company itself.
Baroness Hamwee
My Lords, I admit that I have not read these provisions in whole more than once, but when I first read them I, too, thought that this smacked of plea bargaining. My reaction was—and perhaps I should be forced to face up to this—rather more xenophobic than I would really care to admit. Discussing the provisions at this early—perhaps too early—stage has led me to cross out an awful lot of what I might have mused aloud about. We almost need a seminar on this rather than a Second Reading.
My instinctive reaction was, as the noble Lord, Lord Beecham, has expressed, against being able to negotiate and pay one’s way out of trouble and conversely being tempted to acknowledge guilt for the wrong reasons. The foreword to the Government’s response to the consultation says that this will be,
“a more just and effective system”.
I am not sure what “just” means in this context. If it means anything, I think it means something about encouraging a change in behaviour, as the noble and learned Lord has said. Is it effective—as distinct from efficient? I can see that it is efficient but I wonder about effective. If it is effective, it will be effective in deterrence, reparation and so on, and that is my analysis of “just”. But perhaps none of this will matter when we get down to the detail.
The fact sheet that the Ministry of Justice has issued to accompany this says:
“A criminal prosecution will continue to be the most appropriate course of action where an organisation’s alleged wrongdoing is such that prosecution is the only real option”.
I am not sure where I see that in the provisions, except by implication.
I think my noble friend said that the code would be available to Parliament. I understand that such a code may not normally be appropriate for legislation of any type, or maybe not even for public consultation, but paragraph 6(1) says that the code will give guidance on,
“the general principles to be applied in determining whether a DPA is likely to be appropriate in a given case”.
That seems to be such a significant part of the code that it really ought to be in legislation.
Finally, on the requirements to which the noble and learned Lord, Lord Woolf, has referred, I will be interested to know, during the recommitment of these clauses, when it will be thought appropriate that a donation is made to charity and how one reaches that conclusion. There is a lot for us to disaggregate, analyse and understand in this schedule.
Lord Phillips of Sudbury
My Lords, I did not expect to be able to be here this afternoon. In many ways, I wish I was not, because I am afraid that I take a rather different view from anyone who has spoken so far—except the noble Lord, Lord Beecham. I sympathise with my noble friend the Minister because this is a really difficult area to address in terms of a change in the law, because plainly the present situation is utterly hopeless.
Following the staggering series of events of the past five years, with the collapse of the financial centres of the world, in particular the City, which has required £80 billion of taxpayers’ money to shore up a system that has, let us be frank, been deeply corrupted—a great deal of the failure of the markets was not through lack of prudential wisdom but through market manipulation and criminality of various kinds—not one single person has been prosecuted and put behind bars. I accept what my noble friend the Minister said in opening, that we need to do something, but what we need to do is not to compromise the basic principle of equality before the law—because that is what we are doing—it is to beef up, hugely, the prosecuting authorities in this country. We have played boys’ games with these matters until now.
I had a meeting with the previous head of the Serious Fraud Office and I think I am right in saying that there are a puny number of highly qualified lawyers there to deal with what are the most difficult forms of prosecution on earth. He told me that his entire team would be outmatched by the lawyers and accountants hired by a bank to face a would-be prosecution that the SFO was considering.
It is not right for us to contemplate this fundamentally unacceptable measure until and unless we have summoned the necessary political will to give the prosecuting authorities a chance of doing their job because, hitherto, we have not. I for one would be willing to see a tenfold or twentyfold increase in the necessary personnel, with the necessary increase in their remuneration. The noble Lord, Lord Beecham, was correct that the disparity in remuneration between the gentlemen and ladies in the Serious Fraud Office and the private sector is crazy. I would confront those difficulties and pay for their remedy. Were there effective prosecutions in this country, the fines that resulted from prosecutions of very large institutions for very large frauds would, I suspect, pay for the increase in the prosecuting resources many times over.
We have to be honest with ourselves and with the country over this. This is plea-bargaining. This is breaking the rule of equality before the law because it places huge, powerful, sophisticated companies engaged in premeditated and long-term fraud in a different position from that of a man or woman had up before the local magistrates for shoplifting. That is another form of economic crime. We are driving a coach and horses through the ancient and proper traditions of this country by giving privilege—that is what it boils down to—to the already rich and powerful. My noble friend said in opening that they are not “getting off lightly”. Well, I have to disabuse him: they are getting off extraordinarily lightly. To start with, there is no naming and shaming. When these matters are brought before the court for approval, there will not be facts there given that will hold up for public contempt the main architects of whatever fraud we are talking about. Least of all will there be prosecution and conviction, which will then of course strike very hard at the reception of that by the individuals who are prosecuted and convicted. Perhaps I may ask my noble friend this important question. Will this legislation prevent individual directors and executives of companies entering into a DPA being prosecuted afterwards for their part in the frauds concerned? If they are not susceptible to subsequent prosecution, that is a further failure of the proposed new regime.
This is a more important departure from the status quo than some may realise. This is pure realpolitik of a sort that it is not right for us to contemplate until— I repeat—we have tried giving prosecuting authorities the resources to deal with the offences being committed. As I have said, we are a million miles from that.
Lord McNally
My Lords, again, this has been an extremely useful exercise. I am glad that we have done it in a way which has allowed this Second Reading-style debate. My noble friend Lord Phillips said that he wished that he was not here. I sometimes share his ambitions in that regard.
My noble friend demanded 10 times the budget and 20 times the personnel for the Serious Fraud Office, with an increase in their remuneration. I say with no sense of arrogance that that is the difference between making speeches up there and making them down here. It would be very easy to say, “Oh, well, we’re going spend all this money”, but the reality is—
Lord Phillips of Sudbury
My noble friend does not do my argument justice. I was saying that if the Serious Fraud Office did that, and if prosecutions were brought and convictions obtained, the fines that resulted would cover those costs. A couple of years ago in New York, KMPG was fined $450 million on a plea bargain. That would pay for a lot of people.
Lord McNally
Yes, I did hear the tail end of my noble friend’s argument where he said that it would all be self-financing, which is always another dangerous thing to say in government.
But, yes, I agree. As the noble and learned Lord, Lord Goldsmith, indicated, it has been the ambition of successive Governments to nail down the problem of white collar crime. If they have not done so, it has not been for want of trying. This is obviously a toe-dipping exercise. The noble Baroness, Lady Hamwee, said that we really needed a seminar. I had the benefit of a seminar at an early stage of the process, because Sir Edward Garnier, when he was Solicitor-General, was the first to try to convince me of the usefulness of deferred prosecution agreements. They are, I freely confess, a very pragmatic approach to the problem. It is not as pure an approach as that for which the noble Lord, Lord Phillips, very powerfully argued, but it seems to me to offer real results. As has been pointed by a number of speakers, it is not entirely new to English law in that there are some parallels with environmental legislation and the 2003 legislation to which the noble and learned Lord, Lord Goldsmith, referred.
This is a test to see what kind of results we can get from this approach, with an opportunity perhaps to extend it later. I heard what was said by the noble and learned Lords, Lord Woolf and Lord Goldsmith, and the noble Lords, Lord Beecham and Lord Marks, about individuals as well as companies. We decided not to take it that far. The noble and learned Lord, Lord Woolf, said that we should look again and I am sure that an appropriate amendment will be tabled for the second part of this Committee stage that allows me to address the Government’s concerns about taking it more widely at that point. At the moment, the Government’s view is that this is a prudent move in the direction of seeing whether deferred prosecution agreements can work effectively, and if they do, they would then, as the noble Lord, Lord Marks, said, start to find their way into our system more easily. I fully agree with the noble and learned Lord, Lord Goldsmith, that it would not just be a matter of patching up previous behaviour but of making sure that there was, as part of any agreement, monitored good behaviour for the future.
Lord Beecham
I am not asking the Minister to reply now because noble Lords are waiting for the next debate, but I remind him that I raised two questions about Parliament’s role in relation to the Bill; first, in relation to the code which the Director of Public Prosecutions and the director of the Serious Fraud Office will produce and, secondly, in relation to penalties which the Sentencing Council will propose. We are concerned about that area, as will be other Members of your Lordships’ House. A reply about that would be helpful before we get to the next stage.
Lord McNally
I am grateful to the noble Lord. I could try and busk it now but it would be far more sensible to write to him and share that with the Committee. To make us entirely in order for our debate on 13 November, when amendments will be acceptable and we will be back on course as a normal Committee day, I must now move Amendment 155EZC.
Lord McNally
(b) where Part 4 of Schedule (Dealing non-custodially with offenders) and section (Dealing non-custodially with offenders) so far as relating to that Part of that Schedule are brought into force in relation to a specified area for a specified period, in connection with those provisions ceasing to be in force at the end of that period or at the end of that period as continued under section 31(4B).”
Lord McNally
Lord McNally
“(4A) An order which brings the monitoring provisions into force only in relation to a specified area may provide that they are to be in force in relation to that area for a specified period; and in this subsection and subsection (4B) “the monitoring provisions” means Part 4 of Schedule (Dealing non-custodially with offenders), and section (Dealing non-custodially with offenders) so far as relating to that Part of that Schedule.
(4B) An order containing the provision permitted by subsection (4A) may be amended by a subsequent order under subsection (2) so as to continue the monitoring provisions in force in relation to the area concerned for a further period.”
Lord McNally
(a) section 22;(b) paragraph 28 of Schedule (Dealing non-custodially with offenders) and section (Dealing non-custodially with offenders) so far as relating to that paragraph, but only so far as relating to disclosure or use of information by a person appointed under section 2(1) of the Courts Act 2003 or provided under a contract made by virtue of section 2(4) of that Act;(c) ”
“(d) paragraphs 1 to 31 and 39 of Schedule (Deferred prosecution agreements), and section (Deferred prosecution agreements) so far as relating to those paragraphs.”
“(7A) The amendments made by this Act in the Industrial and Provident Societies Act 1965 extend to England and Wales, and Scotland, only.”
“(8A) Subsection (8) does not apply to the amendments made by this Act in the Government Annuities Act 1929 or the Friendly Societies Act 1974 (which amendments, accordingly, extend to England and Wales, Scotland and Northern Ireland only).”
“( ) Her Majesty may by Order in Council provide for provisions of Part 7 of Schedule (Dealing non-custodially with offenders) (amendments of Armed Forces Act 2006) to extend, with or without modifications, to—
(a) any of the Channel Islands,(b) the Isle of Man, or(c) any of the British overseas territories.( ) The power conferred by section 338 of the Criminal Justice Act 2003 (power to extend to Channel Islands and Isle of Man) is exercisable in relation to any amendment of that Act that is made by or under this Act.”
Lord McNally