Crime and Courts Bill [HL]

Baroness Linklater of Butterstone Excerpts

Tuesday 13th November 2012 Lords Chamber

[Lord Carlile of Berriew]

My Lords, I support entirely the sentiments behind the amendment moved so ably by the noble Lord, Lord Ramsbotham. I support verbatim the comments that were made by the noble and learned Baroness, Lady Butler-Sloss, and share the concerns expressed by the noble and learned Lord, Lord Woolf, about the use of the word “exceptional” in these provisions.

These proposals ignore what happens every day of the week in court rooms up and down the country. There is a substantial class of cases—or there are classes of cases—which are not particularly common but fall far short of being exceptional. I am the last person here who should attempt to explain to this House in the presence of members of the judiciary who have already spoken what the term “exceptional” means, but usually it means roughly what the dictionary definition says that it means. These are not the common class of cases; they are truly exceptional.

I mention one group of cases that I have experienced as a practitioner and sitting as a recorder and that causes me real concern in the context of this part of the schedule. It is a group of cases in which the defendants are usually women who have been subjected to often very severe domestic violence and sometimes sexual violence. They have done something fairly serious in terms of criminal law and have usually pleaded guilty. They have to be sentenced by the court, but punishment is somewhere low down the list of the priorities that the judge passing sentence has in mind. The sentence can serve a useful service; there are elements in community sentences that are restorative or retributive and can help to resolve the situation that has given rise to the appearance in court. The requirement of punishment in all but exceptional cases seems to ignore the reality of a class like the one that I have mentioned. For that reason, I invite my noble friend the Minister to hearken very closely to this debate, which has had some very authoritative voices speaking in it, and think again.

[Baroness Linklater of Butterstone]

My Lords, I add my voice to the chorus of consent as to what this amendment is all about. It seems to arise from the Government’s wish to include specifically punitive requirements in order to, as the Minister for Justice has said, put punishment back into sentencing. The goal is to appear to be tough. This move is simply crude, inappropriate, and very unlikely to realise outcomes that are positive or helpful in any way in the long run. It raises the fundamental issue of what the ultimate goal of sentencing is, or should be, and where the balance should lie with punishment for its own sake. Here I agree completely with the noble Lord, Lord Elystan-Morgan, that when the Government talk about punishment in this context it implies something painful, distasteful and unpleasant. I am clear in my own mind that the reduction of reoffending should be the prime purpose of sentencing, when sentencers make their choices from the available options.

If punishment has its place, we know from the Government’s own research that punitive options on their own achieve nothing in terms of reducing reoffending, and only when allied with other constructive sanctions have they any impact. There is a real risk that requiring sentencers to add this extra element will restrict their freedom to set appropriate sentences based on the facts and circumstances of individual cases. Invariably, there will be a range of support needs at issue. We know, as we have already heard, that the majority of those coming before the courts have significant mental health and learning difficulties, as well as substance misuse, real social deprivation, and so on.

What constitutes exceptional circumstances when what may be exceptional in the general population is more like the norm in the offending population? Their needs are indeed exceptional, so what are the courts to do when the exceptional is the norm? I have put my name to Amendment 6, which seeks to,

“leave out ‘exceptional’ and insert ‘special’”,

to try to make a meaningful distinction, but in the end the courts must be free to decide this issue, as has been commonly agreed. They have to be trusted to find the right balance between punishment and rehabilitation in the decisions they have to make based on individual circumstances and need. Punishment can be used but emphatically not for its own sake and should always be combined with rehabilitative requirements if the ultimate goal of reducing reoffending is to be achieved. It follows, therefore, that the various elements of a disposal must be compatible with each other. I echo what has already been said and remind my noble friend the Minister that all requirements do indeed represent a punishment where freedom is being curtailed. It is true that we have a long way to go before all community sentences are as effective as we would like them to be, but punishment for its own sake is not the answer.

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Moved by

[Baroness Linklater of Butterstone]

12: Schedule 16, page 251, line 32, after “to” insert “meet the needs of the victims and”

[Baroness Linklater of Butterstone]

My Lords, in moving Amendment 12, I shall speak also to Amendment 13. The purpose of Amendment 12 is to insert the phrase “meet the needs of the victims” to make it clear that the aim of the restorative justice requirement being imposed by the court is to include both victim and offender equally, which is after all the point of restorative justice. The amendment seeks to keep the needs of the victim at the centre of the process, where they belong.

It is a very welcome move by the Government that this part of the Bill makes formal provision for restorative justice to take place in this country. These provisions allow for the court to defer sentencing following a guilty plea for a restorative justice conference to take place, when all the necessary conditions are present. Of course, this may not always be the case. For example, all potential participants may not be sure that this is what they really want and they may need more time. However, the principle is being allowed for that restorative justice to be an integral part of the sentencing process and subsequent outcomes.

It has been said, rightly, that this is the biggest development for restorative justice since legislation introducing referral order panels happened in 1999, when those panels were set up to offer RJ to young, first-time low-level offenders via the YOTs. The principle is that when a court chooses a restorative approach, it is made clear that all concerned are involved in the process. This is good practice and is at the heart of what restorative conferencing is about: what the circumstances of the crime were both from the offender’s point of view and what it has meant to the victim. It involves developing a realisation by both parties of how and why the event occurred and what it meant to all concerned, both at the time and later. This then has a bearing on decisions of how amends can be made. It is extremely important that the offender gains an insight of exactly how much pain and trouble has been inflicted and that the victim can describe and explain this in a personal way. That can be extremely surprising to the offender, who has often not considered for a moment the outcome of his actions. At the same time, this can be a great help to the victim in coming to terms with the event and moving on in their life. I have sat in on restorative conferences and seen such processes at work. They are truly remarkable.

This amendment seeks to ensure that a restorative conference is a totally inclusive exercise, which is the essence of RJ. Indeed, it underlines the Government’s oft-repeated objective of focusing more on the needs of victims than in the past. There are huge challenges ahead to establish the framework, skills, understanding, acceptance and confidence of all concerned in the realisation of this plan, not to speak of the costs. It remains incumbent on the Government to spell out in much more detail exactly what their plans are in all these areas.

Amendment 13 involves deleting “Imposition” and substituting “Administration”. This follows on logically from my earlier argument; namely, that a restorative requirement should be administered and not imposed by the court. Indeed, the fact that the Government are using words in the Bill such as “Imposition” in this context demonstrates that they, too, have some way to go in understanding what RJ is really all about. This involves proper planning and can take time. It is essential that the participants in a restorative process have consented to do so, and that it has not been imposed or forced in any way. The practical reality is that this may take some time and may not always be possible before a court hearing or before a guilty plea has been entered. Some victims may not have been contacted or they may not be sure that this is what they want and need time to think, particularly if they do not know in advance whether there will be a guilty plea. There are also the practicalities of contacting others who may be involved as secondary victims of the crime, such as family members or supporters. Finally, there is the preparatory work with all the participants. Therefore, importantly, this amendment allows for a deferral period when all this work can be carried out to ensure that the best outcomes of the process can be realised.

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[Lord Ahmad of Wimbledon]

My Lords, I welcome the widespread support restorative justice has received across both Houses. Through this Bill, Her Majesty’s Government aim to empower victims by giving them an opportunity to be heard, and also to ensure that offenders understand the impact of their actions on others and, more importantly perhaps, to motivate them to change. We seem to be in agreement that we should be working towards encouraging restorative justice to be used more widely—a sentiment that I know echoes across this House as well as the other place— not as a replacement to, but in parallel with, existing sentencing powers.

As we have heard from my noble friend Lady Linklater, Amendment 12 adds an explicit reference to the needs of the victim to our definition of restorative justice requirements, which is a sentiment I strongly relate to. The Government are aware that restorative justice can be very beneficial to victims, and our research in pilots demonstrates that 85% of victims participating in direct restorative justice conferencing with their offenders were satisfied, so we entirely agree that restorative justice, when used appropriately, can—most importantly—meet the needs of victims.

Therefore, I cannot argue with this point, and if my noble friend Lady Linklater is willing to withdraw Amendment 12, I will consider it in advance of Report and return to this subject at that time. I am sure that my noble friend will understand that I cannot give an explicit undertaking at this stage to bring forward a government amendment but, as I have said, the Government will give sympathetic consideration to the points she has strongly made.

On Amendment 13, I hope that it is fair to say that, as my noble friend acknowledged, we are at a turning point in relation to restorative justice. The Government are attempting to take a victim-led approach to restorative justice and to move away from the offender-led process. We are also making sure that the victim is aware of, and considers, restorative justice as an option much earlier in the process.

This amendment would allow the court to defer sentencing for restorative justice even when the agreement of all the parties, including the victim, has not been obtained. This is despite agreement being necessary for the activity to take place. The Government take the view that it is important that the victim is able to consider and decide whether to give his or her consent before the court defers sentence. We are therefore not convinced that a court would want to defer sentencing unless everyone was signed up to it, as this could ultimately lead to lengthy delays, which are in no one’s interest. We must also remember that additional delays can result in increased costs.

In addition to concerns that the amendment could increase court time, we need to consider the impact on the victim of deferring a sentence. This is about the victim. In many cases, the victim will want speedy justice and closure, if for nothing else than in order to put the whole episode behind them. Any victim of crime shares that sentiment. I wonder whether deferment without the victim’s agreement could look as if restorative justice was being imposed on the victim in the sense that, “We’ve already delayed the court case for you, so you may well wish to consent”.

As I said earlier, I welcome the strong support for restorative justice from across the House and particularly thank my noble friend Lady Linklater for tabling her amendments. Support for the victim is vital, and I totally align myself with that sentiment. In light of the points I have made and my commitment further to consider Amendment 12, I would be grateful if my noble friend Lady Linklater would withdraw her amendment.

[Baroness Linklater of Butterstone]

My Lords, I thank the Minister for that response. I am glad that, overall, he has accepted my arguments. I shall have to read Hansard carefully and perhaps ask a few more questions about deferral because it is a new element of reticence that I was not expecting. I am therefore likely to want to come back to this subject, but in the mean time, I beg leave to withdraw the amendment.

Amendment 12 withdrawn.

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Moved by

[Baroness Linklater of Butterstone]

14: Schedule 16, page 252, line 6, at end insert—
“Part 2AProvision for female offenders7A (1) Contracts made by the Secretary of State with probation trusts shall require each probation trust to make appropriate provision for the delivery of services to female offenders.
(2) Provision under sub-paragraph (1) shall include provision for women to carry out unpaid work and participate in programmes designed to change offending behaviour in groups consisting only of women.”

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[Baroness Linklater of Butterstone]

My Lords, I will speak about making provision for women—“female offenders”, as the Bill calls them. These new clauses are intended to make good the remarkable lack of reference in this Bill to women who offend, which is for me and many others impossible to understand. They also echo the thinking and recommendations of the Corston report, which were accepted five years ago by the previous Government and were generally welcomed around the country. Like many of my colleagues and friends in the House, I earnestly wish that some moves can now be made to address these issues which are so long overdue.

New Section 1ZA(7A)(1), to be inserted into the Powers of Criminal Courts (Sentencing) Act 2000 under Amendment 14, simply affirms that:

“Contracts made by the Secretary of State with probation trusts shall require each probation trust to make appropriate provision for the delivery of services to female offenders”,

because it is now generally understood that existing provision, whether in prison or in the community, has been—and still is—largely designed for men. Therefore, it is totally unsuitable for women, as should be absolutely self-evident. Women’s needs are quite different from men’s and the provision must be different.

Jean Corston recommended that there should be separate, specially tailored services locally available, so that the disruption to family life, particularly to children, is minimised as far as is humanly possible. It is self-evident that the needs of the children and families of women who have offended have a huge bearing on their capacity to attend programmes, for programmes to be effective and for reoffending to be reduced. It also has a crucial impact on the risk of orders being breached.

Women’s needs are extremely complex and need correspondingly tailored and appropriate responses. As we heard in a previous debate, most such women are the victims of domestic violence and sexual abuse, which demands quite different skill sets on the part of the providers of services from those required for men. Currently, we simply do not have adequate provision throughout the country to meet the extent of this need. Therefore, we are failing these very vulnerable women. We are also failing our society’s needs and the needs of the many children involved.

Of course, there are probation trusts which make provision for women in their patch. I have visited some remarkably effective and impressive initiatives where women’s centres are turning lives around. I have visited centres where the women themselves are instrumental in making this happen through the understanding and support that they give each other, as well as the skill and sensitive work done by the probation services concerned. But the probation services are not required to do this: hence, the need for this amendment.

The recent joint inspection report on the use of alternatives to custody for women offenders reported a lack of women-specific provision for unpaid work and offending behaviour programmes. However, it said that women-only provision, where available, is often very successful. I know this to be true and have met women who have continued to visit their centre long past the end of their required attendance to help other women who are still under an order.

The second part of this amendment follows on from what I have just said. It states that each probation trust should be able,

“to carry out unpaid work”,

in women-only groups, as well as any offending behaviour work, such as drug and alcohol addiction programmes or domestic violence programmes. For the one or two women in an otherwise male group doing unpaid work, it is likely to be extremely threatening, intimidating and unproductive, and quite likely to end up with the order being breached. Tragically, that is likely to result in a custodial sentence. Indeed, a striking feature of the female prison population is the high proportion of women in prison for breaching a court order—an order originally imposed for an offence that might never have attracted a custodial sentence in the first place. That is a tragic irony.

I hope that the Minister will take this away and look at this serious omission in the Bill. It is not too late to rectify it and, in so doing, he would attract support and heartfelt relief the length and breadth of this land. I beg to move.

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[Baroness Linklater of Butterstone]

My Lords, I am very grateful to have heard such a positive response from my noble friend and to hear him indeed affirm that women are different. I also thought interesting, although it was a slightly tangential point, the suggestion that we should extent the reach of the YJB to young adult women because they are indeed, in many respects, still children. I have to say that I have 40 year-old children, and I still call them children.

I want to thank the noble Lord, Lord Ramsbotham. The intensive alternatives to custody, which I have seen at work, are fantastically effective and should definitely be extended. I am very keen on the work of T2A as well. I welcome my noble friend the Minister’s suggestion of a meeting with Chris Grayling. I think we would welcome that enormously. I, too, have written to him and got no response. But I am sure that my noble friend the Minister will have no problem in that department. I am aware of Helen Grant being a good ally as a woman with responsibility at the other end.

Worryingly but not unexpectedly, allusion was made to resources. The argument about resourcing is that, of course, especially in this field and especially with the range of vulnerable people involved tangentially—that is, children and wider families when women are concerned—money spent at the right end can have a huge ripple effect when it is spent on issues facing women who may not go into custody but who certainly have to carry out a community sentence. If that is badly handled, it really can affect their lives. Money spent early is money well spent and saves a very great deal in terms of the quality, expectations and prospects of people’s lives, particularly the lives of children.

I still did not hear any response to my suggestion that probation trusts should be required to make appropriate provision and be appropriately funded for doing so, but for the moment I am happy to thank my noble friend once again for his positive response. For the time being, I beg leave to withdraw the amendment.

Amendment 14 withdrawn.

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[Baroness Hamwee]

My Lords, I would like to hear what the Minister has to say about each of the organisations. It will not take very much more of the Committee’s time. I do not know whether the noble Lord was trying to save time.

NOMS and the probation service will have views about the impact of monitoring on individual offenders who, as we know, are likely to have very different characteristics. The Lord Chief Justice has a responsibility for the work of sentencers and therefore will, I am sure, wish to make comments to the Secretary of State about how sentencers will use this tool. The police, as the law enforcers, will have a view and the Information Commissioner and the Chief Surveillance Commissioner have important civil liberties obligations and responsibilities. I will listen to what the Minister has to say and I hope to receive some assurances but it is important to put on record why I have chosen this list of candidates, together with, as I say,

“such other persons as the Secretary of State considers appropriate”.

I beg to move.

[Baroness Linklater of Butterstone]

My Lords, I support my noble friend Lady Hamwee. As regards the list in Amendment 16, the probation service represents a very important element in the consultation and the setting up of the code. It is clear that supervision is appropriate only when it is coupled with other requirements, particularly probation support. In fact, it is a great mistake for electronic monitoring to be used without proper contact being established with a probation officer. That increases breach rates by 58% and higher levels of reoffending by 21%. You cannot just leave this matter to a bit of technology. It is very important that those who have direct contact with young, or not so young, people in this situation also have the support of people in the probation service who can add their skills and advice to this process.