Crime and Courts Bill [HL]

Baroness Linklater of Butterstone Excerpts

Monday 28th May 2012 Lords Chamber

[Baroness Linklater of Butterstone]

My Lords, it is always a pleasure to follow the noble Lord, Lord Judd. He always says such nice things about me, so I take this opportunity to say that we have been listening to the voice of experience, of wisdom, and of sweet reason, so it is an honour to follow him.

We put the LASPO Bill to bed a mere couple of months ago, and with this new Bill we now find ourselves addressing more changes to other elements of the criminal justice system. I hope that the day will come when we take time to let new legislation bed down before creating any more, so that we can reflect a little on what we are actually achieving and where we are going: not to speak of giving time for, in this case, relevant government consultations to be completed so that they can be discussed fully and properly.

My particular interest is in Clause 23, entitled “Community and other non-custodial sentencing of adults”, which is designated a “placeholder” for the time being, while the White Paper Punishment and Reform: Effective Community Sentences is still ongoing. It will give the Secretary of State the power to make regulations on the provision, content and enforcement of community sentences and to take forward proposals in the consultation paper once final policy decisions have been taken, with amendments tabled later in the Bill. This is encouraging because it flags up the Government’s commitment to alternatives to custody more clearly than ever before.

I have often spoken in your Lordships’ House about the importance of community sentencing and how much more effective it is than short custodial sentences in reducing reoffending by a factor of 8%, which is affirmed in the White Paper. I sincerely hope that this means that this placeholder clause represents a real commitment by the Government to support, develop and strengthen the provision and its availability, particularly by probation and the voluntary sector, in the midst of the new competitive environment that the Government seek to develop. Partnership working, the hallmark of the voluntary sector, often works better in the interests of clients than the blunt instrument of the free market. The private sector must be seriously encouraged to adopt the greater benefits of co-operation or partnership where clients’ interests are concerned, which is what really matters and really works. I will return to this when the Government’s proposals become clearer.

I have just had the pleasure of once again being a judge in the Howard League’s annual community awards, which highlight and recognise best practice in working with offenders and ex-offenders in the community and which demonstrate just how much creative, constructive and really effective work is now being done all around the country by probation and the voluntary sector. It is like an annual litmus test that shows that this approach to offending is unarguably successful in practical terms and right in human and economic terms.

I was also recently invited to Liverpool by the Merseyside Probation Trust’s chief probation officer to see the range of its community-based work, which is truly impressive. I spent some time with a girl who was on an intensive alternative to custody order—an approach for young adults with entrenched problems, involving intense work over a limited span of a year—and I heard from her and her worker how and in what ways her significant problems were being addressed and how her life really was being transformed. I am pleased that the Government are now focusing on these orders.

They are still being piloted, of course, now for 15 to 18 year-olds, who account for a third of those imprisoned each year. Nearly two-thirds of this group go on to reoffend when released from custody, and the pilots already show a significant drop in reoffending. The very positive relationship that I saw was a key element, and the focused and intensive nature of the disposal was clearly worth every penny that was being spent on it, from every point of view. The Government are now responding to the fact that we can no longer afford to spend £50,000 or so more a year for a young person literally to sleep through his or her sentence and come out to offend again; nor, indeed, can they.

I am glad, too, that restorative justice is now being brought to the fore—perhaps at last its time has come—and, indeed, that the Minister Crispin Blunt has nailed his colours to this particular mast. It can do much to help victims of crime, who deserve as much support as possible in order to come to terms with the trauma of the experience, to demystify the offender who has caused such hurt, and to move forward; while the offender comes to realise, often for the first time, the realities of what he has done, and can find ways to make amends. I have had the privilege of sitting in on restorative conferences, and I have seen their remarkable possibilities at first hand. Their potential is great, and I trust that the Government will back the necessary training, costs and administration involved, because the benefits are enormous. I hope to hear that the Minister can reassure me on this.

While welcoming the promise of Clause 23, I also have reservations about the tone, which places very strong and repeated emphasis on toughness and punishment, which are, indeed, the central themes of the White Paper. The Lord Chancellor believes, quite rightly, that too many people who leave custody reoffend, but he also assumes that this is because the current range of provision of alternatives are neither tough nor punitive enough. The White Paper states:

“It is a fundamental principle of justice that those who are found to have done wrong should be punished”.

It adds the assumption, with no evidence adduced, that:

“Too many community orders do not include an element which the public and offenders would recognise as ‘punishment’”.

First, I suggest that there is above all a need for any punishment to be used proportionately, with decisions left to local sentencers’ and practitioners’ discretion and knowledge over its application. There will always be a tipping point, which will vary between every situation and individual, where punishment as toughness will backfire. The overuse of tags, electronic monitoring and curfews, which we discussed in the LASPO Bill, or even confiscation of assets may certainly punish, yet without necessarily preventing reoffending.

I echo the view of the excellent Justice Select Committee that making sentences more punitive will not necessarily be effective in reducing reoffending or protecting the public more. There is always the risk that it will lead to breach and further criminalising. What will really matter is that sentencers have a working knowledge of the programmes available to them in their patch through regular visits supported by proper statutory arrangements. I will return to this in Committee.

Secondly, public knowledge of our justice system is at best patchy and subjective, and is absolutely not a reliable basis for developing new approaches to sentencing. There is a high level of public anxiety today about the state of the nation generally, precipitated above all by the economic and financial crisis we are all in, making our lives feel worrying and uncertain. I really do not believe that this anxiety is specifically to do with reoffending rates of community penalties and levels of punishment.

There is a wonderful initiative called Local Crime, Community Sentence, provided by the magistracy in conjunction with probation, which I had the pleasure of funding in the first instance when I chaired Rethinking Crime and Punishment. It operates all over the country and delivers programmes to inform local communities of the reality of offending and the way it is managed by the courts and probation in their patch, using real case studies. Attitudes are measured before and after each session, and invariably show a marked rise in confidence in the system and a reduction in punitive attitudes.

However, the corollary of this shows that the public need to know and understand much more the realities of the criminal justice world, and much more must be done to enlighten and inform them through sources other than the Daily Mail. Public confidence and understanding come from seeing what such activities as unpaid work achieve. The fact is that community payback and unpaid work are now an acknowledged success all over the country and the source of much positive reaction within communities, resulting in increased demand for the work done by offenders. It is the one area where the public can have some real idea of what community penalties can consist of, and it is very good. Seeing is believing.

The readiness, willingness and ability to desist from reoffending depend on many factors in an individual’s life, ranging from the practical realities of a job or place to live and a meaningful relationship, to underlying feelings of self-worth, the ability to deal with problems such as addiction, or an awareness of the impact of offending on others. The level of toughness or punishment is not likely to be pre-eminent. Last week, I was at an event run by the Prisoners’ Education Trust. I declare an interest as a patron. We heard at first hand the absolutely transformative effect on the lives of those present of reading, learning and ultimately passing exams, and in some cases getting degrees. These were people with long offending histories and little previous education. For some, the change had literally started in the prison library. You would not normally equate choosing to be in a library with punishment. Importantly, they had reached a moment when they were ready for that change. That had not been brought on by punishment either.

The five purposes of sentencing are quoted in the White Paper: punishment, deterrence, reparation, rehabilitation, and public protection. We should remember that they all have equal weight when it comes to the decision of a sentence in any particular case. When the White Paper says that there is not enough punishment in the sanctions provided through community penalties, it implies that they are not unpleasant enough and that the offender must be made to suffer more. It assumes that this is what the public look for. While it argues that retribution should be at the heart of punishment, we cannot seek to make the level of unpleasant sanctions commensurate with the level of the crime or to devise a hierarchy of unpleasantness or suffering. In the end, that will not promote a safer or more law-abiding society, let alone represent a civilised response to those who offend. Here, I declare an interest as the mother of a wonderful daughter who is vulnerable and has been the victim of a serious assault. From that point of view also, I know what I am talking about.

Jeremy Bentham, the father of moral philosophy, believed that punishment involves a response of unpleasant sanctions that in themselves mirror or reflect in some commensurate way the actions of the offender. While he famously wrote that,

“the greatest happiness of the greatest number is the foundation of morals and legislation”,

he also wrote that,

“all punishment is mischief. All punishment in itself is evil”.

Retribution must not be part of our armoury. Rather, community sanctions should include facing up to wrong-doing, reform or recognising the need to change, repentance and even remorse, and reconciliation with the victim where appropriate. All these goals are in fact implied in the White Paper. They involve at least as much toughness of a different order, and as much difficulty or discomfort as the punitive unpleasantness it claims to seek. The law exists to contain and restrain our deepest retributive instincts and articulate them in a civilised and acceptable way. This was presaged in the Oresteia, when Athena appointed the jury of judges to contain the power of the furies and pass judgment on Orestes, thus settling the blood feud. I really hope that the Lord Chancellor will demonstrate the wisdom of Athena and contain his furies. We have no need of them.