Crime and Courts Bill [HL]

Baroness Linklater of Butterstone Excerpts

Monday 10th December 2012 Lords Chamber

Moved by

[Baroness Linklater of Butterstone]

113AA: After Clause 23, insert the following new Clause—
“Eligibility for assistance
(1) An accused person in criminal proceedings is eligible for assistance by virtue of this section if the courts considers that the quality of that person’s participation in and understanding of court proceedings or of the evidence given by that person is likely to be diminished by reason of any circumstances falling within subsection (2).
(2) The circumstances falling within this subsection are that the accused person—
(a) suffers from mental disorder within the meaning of the Mental Health Act 1983, or(b) otherwise has a significant impairment of intelligence and social functioning.(3) Where the court determines that the accused person is eligible for assistance by virtue of this section, the court may then give a direction under this section providing for—
(a) assistance of the accused in preparing for court proceedings and in instructing the accused person’s legal representative to be provided by a person approved by the court for the purposes of this section (“an intermediary”),(b) assistance of the accused person in understanding and participating in court proceedings to be provided by the intermediary, and(c) the examination of the accused person to be conducted through the intermediary.(4) The Secretary of State may, by regulations, make provision about the recruitment, accreditation, training and appraisal of intermediaries approved by courts under this section.”

[Baroness Linklater of Butterstone]

My Lords, the amendment will ensure that, where necessary, vulnerable defendants are provided with the appropriate support to enable effective participation in court proceedings and in preparing for their trial. The aim is that such defendants should be entitled by statute to the same support as vulnerable witnesses, and thus to an equally fair trial. A briefing paper, Fair Access to Justice?, for front-line staff in the criminal justice system and the NHS, explains how those who appear in court as a victim or witness are entitled to extra support or special measures to help them understand and cope with the process. At present, vulnerable defendants do not have the same entitlement and get that support only at the discretion of the court, despite the fact that high numbers are vulnerable. The amendment would restore a balance and ensure even-handedness in court proceedings for any vulnerable person, whether they are a victim or a defendant. The special measures are intended to reduce the stress of the court appearance for the vulnerable individual or witness so that he or she can give the best evidence. Hitherto, these measures applied only to vulnerable witnesses and specifically not to defendants.

Support is provided for witnesses by qualified intermediaries who are registered, accredited and trained to help vulnerable and other witnesses in court proceedings after the most stringent selection, quality assurance, regulation and monitoring procedures. The aim is to facilitate vulnerable witnesses with two-way communication in court between them and other participants so that their communication is as complete, accurate and coherent as possible. However, while the arrangements are available to witnesses, they are specifically not available for defendants except at the discretion of the court, and even then the intermediaries appointed to support them do not have to be either registered or regulated, and are paid different fees. It is possible to have an unregistered intermediary assisting a defendant while a witness in the same trial has a fully registered one who is paid more than his counterpart who represents the defendant. This is an entirely unfair and unjust arrangement that favours a witness over a defendant, irrespective of the guilt or innocence of the vulnerable parties.

The current reality is that a high number of defendants going through the courts need particular support to help them cope and understand what is going on. If they do not have this help, it can affect their ability to participate in court proceedings and compromise their right to a fair trial. There is some help for vulnerable defendants giving oral evidence only, but they are not helped during trial proceedings to participate effectively, instruct counsel or prepare for a trial.

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[Lord McNally]

My Lords, as the noble and learned Lord, Lord Woolf, has just told us, it is the duty of the courts to ensure that defendants receive a fair trial. It therefore may be necessary to make particular efforts in the case of defendants whose understanding is limited. To some extent it will fall to the defendant’s legal adviser, or to the judge, to help meet the needs of these vulnerable defendants. From time to time courts have asserted the right to grant such defendants the assistance of an intermediary.

Statutory provision has in fact already been made in Section 104 of the Coroners and Justice Act 2009 for certain vulnerable defendants to be eligible for assistance from an intermediary when giving evidence. A defendant would benefit from this provision where their ability to participate effectively in the proceedings as a witness is compromised by a significant impairment of intelligence and social functioning; or where they are suffering from a mental disorder within the meaning of the Mental Health Act 1983.

The Government made a decision to defer implementation of Section 104 until full consideration could be given to the practical arrangements and resource implications. Although there are no immediate plans to implement these provisions, we are continuing to monitor the situation and the resource implications of doing so. However, as I said earlier, judges have on occasion granted the use of an intermediary to assist vulnerable defendants to ensure a fair trial. In fact, guidance on the process for appointing intermediaries for defendants was issued nationally to all courts last year.

Furthermore, Part 3.30 of the Consolidated Criminal Practice Direction also provides guidance on a range of other types of support that a court may wish to offer, including that at the beginning of the proceedings the court should ensure that what is to take place has been explained to a vulnerable defendant in terms they can understand. Secondly, a trial should be conducted according to a timetable which takes full account of a vulnerable defendant’s ability to concentrate. Frequent and regular breaks will often be appropriate.

I have listened to what my noble friend said and to the interventions of the noble and learned Lord, Lord Woolf, and of the noble Lord, Lord Beecham. I do not want to raise expectations as I am not sure whether I can get clearance to take this forward at Third Reading. However, I assure my noble friend that, as I have said, we are continuing to monitor the situation and are looking at the practical arrangements and resource implications of bringing in Section 104. I certainly agree to take this measure away. If I cannot bring it back at Third Reading, I will write to the noble and learned Lord, the noble Lord and my noble friend to explain why I cannot do so and what we are doing to keep this matter under review. I hope that, with those assurances, my noble friend will agree to withdraw her amendment.

[Baroness Linklater of Butterstone]

My Lords, I am heartily grateful to the noble and learned Lord and the noble Lord who have supported what I had to say. That support, coming from two such distinguished sources, means a very great deal to me. I hope that the Government will also pay heed to it.

I heard what my noble friend the Minister said. It is moderately cold comfort. There is none the less the possibility of further recognition of what remains quite a major injustice that is built into our system. In the mean time, I beg leave to withdraw the amendment.

Amendment 113AA withdrawn.

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There is one particular issue: I strongly support the noble and learned Lord, Lord Woolf, on the word “exceptional”. I do not really mind whether the noble Baroness, Lady Hamwee, gets “particular”—I do not mind what the word is—but I must tell the Minister that the effect of “exceptional” will be treated by judges as meaning “exceptional”. That is, I gather, what is wanted. That means that anybody suffering from mental health issues—a very large number of people commit crimes and come through the courts who suffer from mental health issues—will not be treated by the courts as exceptional because they are standard. One only has to look at the prisons and the people coming through the courts to see the number of people with drink, drug or mental health problems who cannot be dealt with under subsection (2B) because what is happening to them is not exceptional. Whatever the Minister may say, he must listen to the fact that the word “exceptional” will be treated by the judges and the magistrates as “exceptional”. In conclusion, the whole of Part 1 of Schedule 16 is not needed but, if it is to come in, at least take out the word “exceptional”.

[Baroness Linklater of Butterstone]

My Lords, I add my voice in agreement with much of what has already been said. What my noble friend Lady Hamwee did in drawing our minds back to the Criminal Justice Act 2003 in particular was very helpful for the purposes of sentencing. The noble and learned Lord, Lord Woolf, speaks words of wisdom and we should pay serious heed to him. He pointed out that the overarching requirement of a sentence should be decided by the judge on what is appropriate. Ultimately, I suppose that it follows that it should prevent reoffending and if the punitive element fails to meet that test it is worthless. As was made clear when we debated this in Committee, every community order is a form of punishment so the punitive element that the Government seek is de facto present. Anything additional intended to be somehow more punitive for its own sake is unnecessary, except possibly as a political gesture, and it will fail the test of reducing reoffending anyway. As the noble and learned Baroness, Lady Butler-Sloss, said in Committee, it is also “profoundly unattractive” as an idea. I liked that term very much.

The Minister has got it wrong if he believes that this is what the British public want to see happen. Indeed, there is ample evidence to show from polling that what the British public want from sentences, particularly expressed by those who have been victims of crime, is that it does not happen again. Retribution or vengeance is not sought. The Government maintain that the caveat of “exceptional circumstances”, when a specifically punitive order can be dispensed with, is tightly defined. Yet we have just spent the last 20 minutes realising that nobody can define what it is sought—the definition cannot be pinned down. This was emphasised by the noble and learned Lord who found in the past that use of “exceptional” caused nothing but confusion—he said so eloquently. For the large number of offenders for whom there is an additional punitive requirement, this may be inappropriate and even increase the likelihood of breach and so on.

The reality of a purely punitive requirement on its own principally represents the Government’s gesture of what Chris Grayling said was putting punishment back into sentencing. That is what it comes down to. It interferes with the freedom of sentencers to set an appropriate sentence based on the facts. That is a serious deficiency. We undermine judicial discretion at our peril. It also fails to safeguard those defendants with particular support needs, whether those are mental health, health needs, learning difficulties, drug addiction et cetera, to name but a few. Of course, the fact is that it is precisely this range of such support needs that represents the norm in the prison population. They are not exceptional at all—exactly what the noble and learned Baroness, Lady Butler-Sloss, just said.

To impose a punitive requirement when the offender has these difficulties without also addressing the problems constructively would clearly be unjust. I could go on further but I will finish by saying that there was very important and interesting work done for the Government by Helen Bewley. She concluded that in fact punishment probably means a curfew, a fine or unpaid work. Her work demonstrates that punitive requirements on their own have no impact at all on the likelihood of reoffending but simply reduce the number of reoffences committed. The most effective outcome was from a combination of supervision with another requirement, with a punitive element added on. If the Government themselves acknowledge the risk that undermines the very rationale for such punitive orders, particularly if used on their own, how on earth can their use in every community order possibly be justified? Indeed, the likelihood instead is more offending, breaches and a generally less safe society—the very antithesis of what is intended.

[Lord McNally]

My Lords, sometimes I think that debates in this House are like two flotillas of ships passing in fog and not noticing each other. Most of the debate we have heard tonight we heard at Second Reading and in Committee. I can only again express my surprise at noble Lords who I know are deeply committed to this area of the criminal justice system. We have a situation where a Conservative Prime Minister expresses his complete commitment to the concept of community sentencing and a Conservative Lord Chancellor commits himself entirely to the concept of rehabilitation and bringing those ideas into legislation. We have now had three long debates on these issues; I will again try to explain where the Government are coming from but, in the terms that noble Lords have put it, I fear I will fail to convince them again.

The concept of punishment is part of—not separate or left on its own from—what I believe is a very worthwhile package put forward in a flexible way that fully respects the independence and judgment of the court. We keep to the word “exceptional” because without it there would be the opportunity to ride a coach and horses through what we are trying to do, which is to create a tougher system of community sentences that will produce greater public confidence. Let me put that in context: in March, when these proposals were first announced and the Prime Minister announced his support for the concept, Mr Sadiq Kahn, Labour’s Shadow Justice Secretary, said,

“Cameron cannot claim these measures as his own. We support community sentences that effectively punish and reform appropriate offenders because we were legislating on tougher community sentencing long before David Cameron”.

It really is not fair to start trying to split the points that have been made about judicial discretion, which is there, nor are these free-standing punishments. It has been suggested that Part 1 of Schedule 16 is totally unnecessary and counterproductive to achieving the rehabilitation revolution. It has been suggested that there is no evidence to support requiring courts to impose punishment on offenders as part of community sentences. It is on the basis of such arguments that the noble Lord, Lord Ramsbotham, is again proposing that we do away with Part 1 of Schedule 16 entirely.

We are also considering Amendment 113GA. This would specify a list of requirements that courts might include in a community order as the punitive element. I am tempted to remind the noble Lord, Lord Rosser, that, as I have said before, the Labour Party has claimed to have punishment in community orders as part of its programme long before David Cameron became a convert.

The evidence that underpins the provision comes from victims and members of the public. Time and again, surveys have found that victims and the public see punishment as a critical purpose for community orders to deliver. I will quote only two of many. An ICM survey of victims of non-violent crime, carried out for the Ministry of Justice in 2007, found that punishment is seen as the most important part of a sentence, followed by payback to the community and then rehabilitation. More recently, research on community orders carried out this year by Victim Support and Make Justice Work found that victims,

“believe strongly in punishment and public protection”,

as the purpose of sentencing.

However, the evidence shows that the public are not confident that community orders are effective at delivering that punishment. For example, a survey carried out by Policy Exchange in 2010 found that 38% of the public perceive community orders to be soft, and a further 22% believe they are “weak and undemanding”. Similarly, the Opposition’s 2008 review of crime and justice found that the public saw community orders as a soft option, and that 90% of the public agreed that community orders should involve paying back to the community.

I remind noble Lords, as I did when the House last considered these provisions, that many of those given community orders have not committed minor offences. Some will have narrowly avoided custody. Some will have caused significant physical or mental trauma to victims through assaults. Others will have caused financial or emotional damage through theft, burglary or fraud. As a matter of principle, this Government believe that offences serious enough to cross the community order threshold should result in punishment. That is a principle with which I believe victims and the public would entirely agree. However, I do not believe that the existing community order framework gives victims and the public confidence that community orders effectively punish offenders. That is the reason we are introducing this provision.

I turn to the second concern that noble Lords have raised, which is that the provision will put the rehabilitation of offenders at risk. This will allow me to respond to the Amendment 113GB, in the name of the noble and learned Lord, Lord Woolf, which would disapply the imposition of a punitive element if the court believed that this would reduce the likelihood of preventing reoffending. Again, I will start from what victims and the public say. Of course the public do not want community orders to focus solely on punishment. The research by Victim Support and Make Justice Work, for example, found that neither victims nor the public wanted punishment to exclude efforts to rehabilitate and reform offenders. There are two important points I want to make here. One is about the public legitimacy of community orders. If the public are not confident that community orders are effective at punishing offenders, we cannot expect them to support our efforts to make them more effective at rehabilitating offenders. The second is that the public clearly recognise that this is not an either/or question. Community orders need to tackle the causes of reoffending but they also need to provide punishment. It is entirely possible for them to do both. For that reason I would argue strongly against the suggestion that a focus on punishment will prevent us from delivering improvements in reoffending rates.

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[Baroness Linklater of Butterstone]

My Lords, perhaps I may quickly say that I never used the word “violence”. The word I used was vengeance.

[Lord Ramsbotham]

My Lords, I thank all those who have spoken in this debate. I am sorry that the Minister ended in the way that he did. As I said at recommitment, if the Prime Minister had been absolutely four-square behind the rehabilitation revolution, the speech that he gave would have been different. So much of that speech was in the opposite camp. It was the toughness agenda. I quoted great chunks of it at recommitment.

One of my problems with all this is that no one is keener on the rehabilitation revolution, and the prevention of reoffending and getting this right, than I am. However, I find a curious division between, on the one hand, the rehabilitation revolution and, on the other hand, all this punitive element as being evidence of a confusion which needs to be eliminated, not least on behalf of the people who have to prevent reoffending. I am talking about probation officers, prison officers and others who are unclear as to exactly where the direction is.

The Minister said several times that the courts must decide. Of course, they must. Currently, the courts know the form, as we have heard over and over again. Therefore, what is the point of telling them something that they already know and are already doing? It is unnecessary. If this proposal is defeated tonight, I hope that at least the Minister will listen to what has been said during the debate and that perhaps we may have some further reconsideration of Schedule 16, which has come late in this Bill and includes much that is in need of urgent attention. In particular, we must not forget the point that it is no good just saying that something is punitive, if what you want to do with and for offenders cannot be delivered. We still have not had confirmation that that can be delivered.

I have listened with great care to what the Minister has to say and I have considered all the evidence in front of me. I wish to test the opinion of the House.