Anti-social Behaviour, Crime and Policing Bill

Baroness Linklater of Butterstone Excerpts

Wednesday 20th November 2013 Lords Chamber

[Baroness Linklater of Butterstone (LD)]

My Lords, I endorse that and remind the House that when ASBOs were first considered under previous legislation, that worry was aired at some length in this Chamber. Things could go either way. Either you could have it as a badge of honour or it could be a mark that affected a young person or child’s life considerably. Either way, publicity had little to offer that was positive or helpful.

[Baroness Smith of Basildon]

My Lords, this has been a useful debate. I hope that the Minister can respond positively to it, because this is causing enormous concern. There is a great difference between the current regime of ASBOs—we still have them, and we propose that we keep them—and the new regime that the Government propose. We are talking about lifting reporting restrictions widely not for somebody who has caused harassment, alarm or distress, but someone who has caused merely nuisance and annoyance and breached the order. A child aged 10 who has been given an IPNA injunction for causing nuisance and annoyance—as I said earlier this week, I think that most children of 10 are at some point quite capable of causing nuisance and annoyance—could breach that injunction and find reporting restrictions lifted. That lifting of reporting restrictions does not seem to be a reasoned decision taken in certain circumstances—it is in every case. I do not understand why. I share the views expressed by other noble Lords. It is for the Minister to explain why he thinks that this is an appropriate and proper measure, because I fail to understand that.

The noble Baroness, Lady Hamwee, made a valuable point about safeguarding: whether children who receive publicity as a result of having caused nuisance and annoyance could be at risk. Could they be subject to grooming? Could they be targeted in any way? Have the Government done any assessment or evaluation? I cannot believe that such a clause would be brought forward without a great deal of thought, but I could be wrong. Have the Government undertaken any assessment of the impact that that could have on a child aged 10, 11 or 12? Given the naming and shaming effect of civil orders on children, have the Government consulted those organisations which seek to protect children to find out their views and how they think that it would impact on them? We are extremely worried, particularly given the low threshold level required for an order.

It really is incumbent on the Minister to explain the reasons for this clause. I hope that he has heard the concerns across the Committee. His explanation today will go a long way to seeing whether this is a matter to which we will return on Report.

--- Later in debate ---

[Baroness Hamwee]

The noble Earl has raised extremely important points, and I do not want to repeat arguments that I made on my earlier amendment about publicity, which also apply here. It is not only the noble Earl, who has massive experience, who makes these points. As I said earlier, so many organisations which have practical experience and great success in diverting children at risk of going down the route of a criminal career back to a better road, have suggested that such amendments should be made. We should take that extremely seriously.

[Baroness Linklater of Butterstone]

My Lords, I support these amendments wholeheartedly. We are talking about punishment. Punishment must, as a fundamental, be appropriate, proportionate and likely to succeed. I suggest that the provisions have none of those things right. It is entirely wrong to have a sanction which involves the potential imprisonment, which is the ultimate sanction for breach of a CBO, of children between the ages of 12 and 18. A detention and training order, which is a possible likely outcome, can be given to such children for breach for a minimum of four months and a theoretical maximum of 24 months, half of which would in fact be intervention, supervision and the rest.

Children who fail to comply with a police dispersal order can also get up to three months. We are looking at a whole range of options to incarcerate young people. It has already been referred to tonight that children routinely breach ASBOs—about two-thirds of them do. Once they get into the world of breach, we are in very dangerous territory. All the successful work that we have seen and in which I have been closely involved with the Youth Justice Board has been to avoid the incarceration of children. This is simply because it does not succeed; the noble Earl has indicated why. In all cases, incarceration should be for the most dangerous, severe and violent behaviour. Those are the kinds of criteria that we should apply to anybody going to prison. In other words, the criteria apply to adults, too, but how much more do they apply to children?

Anti-social Behaviour, Crime and Policing Bill

Baroness Linklater of Butterstone Excerpts

Tuesday 29th October 2013 Lords Chamber

[Baroness Linklater of Butterstone (LD)]

My Lords, I add my congratulations and welcome to my new friend on these Benches, my noble friend Lord Paddick. It is always a pleasure to follow my dear friend, the noble Baroness, Lady Kennedy of The Shaws. I am afraid that I will repeat some of what has already been said by others this evening.

This is a large and wide-ranging Bill that, like the curate’s egg, is good in parts but also raises considerable grounds for concern. I intend to confine my few remarks to the anti-social and criminal behaviour orders, in particular as they relate to young people and children. I had a quick look at the Anti-Social Behaviour Bill of 2003 and found that the same issues persisted and concerned us then as now. Indeed, I was momentarily tempted just to lift my speech from that occasion as it would have fitted now. If we really are going to make the right changes to improve the situation, we must look at what is relevant and proportionate to the needs of both victims and offenders.

There are elements in the Bill that are interesting and to be welcomed. The notion of the community remedy, where each local policing body will be required to draw up a document with a list of appropriate actions that might, in its opinion, assist in a person’s rehabilitation and make reparation as well as punish, is interesting. Its aim will be to promote public confidence and it will be carried out in consultation with appropriate community representatives and others, which is an excellent way of bringing communities together in addressing essentially local problems in a restorative and reparative way. This is a proposal to be applauded.

The plan to simplify the current range of orders also must be a good thing, particularly the use of positive requirements to make them more effective, which is always more likely to be the case than with negative ones. There are currently no less than 19 powers to deal with anti-social behaviour, of which the ASBO is but one. These are being rationalised to six, of which the injunction to prevent nuisance and annoyance, the IPNA, and the criminal behaviour order are the ones most prominently under consideration.

The roots of anti-social behaviour inevitably are established in early life. You just do not have happy, thriving, well adjusted, achieving young people from supportive families persistently out on the streets at night, causing havoc through anti-social behaviour. Instead, these are likely to be people with a complex range of significant needs. Theirs is behaviour which can be deeply unpleasant, often very unnerving, frightening and dangerous for those in whose communities it is prevalent. It is a real scourge. It also reflects social and emotional alienation, where they neither give nor get any respect, and they require an integrated response not only from the police but from a range of agencies, services and communities working together. This is in part, as I understand it, what the community remedy seems to be suggesting and it offers a very constructive way forward, particularly in its restorative implications, which I welcome.

However, the crux of the Bill revolves around the new definition of anti-social behaviour. Hitherto, it has been defined as that which is likely to cause “harassment, alarm or distress”. That is pretty clear and it has formed the basis of an order. It is now, as we have heard from several speakers, to be replaced by a new injunction, addressing instead,

“conduct capable of causing nuisance or annoyance to any person”—

just “capable”. This IPNA, an injunction to prevent nuisance and annoyance, clearly has a far wider, open-ended definition, which, as the Home Affairs Select Committee has stated,

“is far too broad and could be applied even if there were no actual nuisance or annoyance whatsoever”.

The Joint Committee on Human Rights states:

“We consider that ‘conduct capable of causing nuisance or annoyance to any person’ is not sufficiently precise to satisfy the requirement of legal certainty required by both human rights law and the common law. We recommend that the Bill be amended to make the test for anti-social behaviour more precise”.

That is pretty clear. The Association of Chief Police Officers and several PCCs are on record as saying that the new definition risks being “too subjective” and that it could “unnecessarily criminalise” children.

Those are observations and recommendations that the Government must take very seriously if their stated aim of taking a more constructive approach to anti-social behaviour with more positive outcomes for young people who get caught up in this way is indeed to be realised. These young people need all the guidance they can get, but the widening of the definition through an IPNA inevitably opens the door to still more children being scooped up and caught up in what could, potentially, become criminal activity created by these new designations. Difficult, vulnerable children and their families need help, but a route via injunctions and the subsequent criminalising of children is only damaging. However keen the authorities are to take positive remedial action through a range of possible positive or negative requirements, which are not clearly specified, inevitably more children will be drawn into the world of injunctions, courts and possible breach. Seven out of 10 children currently breach their injunctions, and the longer the order, the more likely breach becomes.

Imprisonment remains available as a sanction for breach by children from the age of 14 upwards, as well as adults, and indeed currently 38% of children who breach an ASBO are imprisoned. It is a given in the criminal justice world that the imprisonment of children should be reserved for the most dangerous, difficult young people committing the most serious offences. It is monstrous that they should be tagged on to these kinds of orders. The YJB is a model in this respect in promoting alternatives to custody. It is disproportionate therefore that imprisonment should be considered at all for a child who breaches a CBO, possibly for up to two years, an IPNA, or a new dispersal order, perhaps for up to three months. The Joint Committee on Human Rights finds that this is not in accordance with the UNCRC requirements, and I sincerely hope that this is something on which the Minister can give me some assurance, as it gives cause for grave concern.

If we are to succeed in reducing and stopping this kind of problem, the measures must be relevant, appropriate and proportionate. We need safe streets and safe children. Once children have been criminalised, their future—and ours as a society—is damaged. The high breach rates and subsequent incarceration of children indicate that much needs to change if we really are to meet properly the needs of people in law-abiding communities on the one hand and this group of very difficult children on the other. I urge the Government to have a good look at this once again.

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.

Children: Secure Children’s Homes

Baroness Linklater of Butterstone Excerpts

Monday 7th November 2011 Lords Chamber

Tabled By

[Baroness Linklater of Butterstone]

To ask Her Majesty’s Government what assessment they have made of the impact of budget cuts on the work of secure children’s homes in reducing children’s reoffending rates.

[Baroness Linklater of Butterstone]

My Lords, I am grateful for this opportunity to raise once again the issues that relate to those children in the country today who are the most difficult and challenging, the most damaged and needy. They are the children between the ages of 12 and 16 and sometimes as young as 10 and as old as 17, whose offending behaviour has resulted in them being detained in either a secure children's home, which I will refer to as a SCH, or a secure training centre or STC, which means that they are also the most expensive to provide for. Older ones, from 16 to 18, will normally be in a YOI.

Decisions on the care of these children fall to the Youth Justice Board and now inevitably are part of the focus of the range of spending cuts being made around the country. Consultations are therefore being held to develop a strategy for the next few years which will determine the need, the cost and above all the type of provision for these children. It will also, coincidentally, reveal how far we are prepared to honour our duty of care to our most vulnerable children, despite all the challenges that they present. Failure to respond effectively today will result inevitably in continued reoffending and far greater and far more expensive long-term problems tomorrow.

The most immediate evidence of the problem comes in the figures from the MoJ that the reoffending rate of this group of children is 72 per cent within a year of release. It is the highest figure for all offenders being released from custody, thus demonstrating the relative ineffectiveness of the penal approach to this group. Their experience of life is light years away from that of the majority of our children and can be encapsulated in the telling phrase, “a disproportionate experience of loss”—meaning loss of family life, love and security.

For those 12 to 18 year-olds who end up in custody, the figures illustrate that 71 per cent have been involved with, or in the care of, social services; 75 per cent have lived with someone other than a parent at some time—this compares with 1.5 per cent of the population; a quarter have experienced violence at home; 40 per cent have been homeless—we are talking here about the 21st century; and 90 per cent have been excluded from school. These are children for whom violence at home is often the norm. Some of them start their nursery schooling not even knowing what their name is, such is the absence of a loving family life. Of those who end up in custody, up to 81 per cent have mental health problems. Those figures may be enough to give a flavour of the extreme and shocking difficulties in many of these children’s lives.

I pay tribute to the Youth Justice Board for its work over the past four to five years, in particular for the way in which it has succeeded in bringing down the numbers of 10 to 14 year-olds going into custody by a remarkable 51 per cent since 2006-07. The reasons for that are complex and varied, but it demonstrates not only the courts’ overuse of custody in the past but the creative work that the YJB has developed with the YOTs and other agencies in the community in prevention, diversion and treatment, all of which is greatly to be welcomed.

Of course, such a reduction leaves spare capacity and, therefore, considerable savings—hence the current consultation. The decisions to be made for the future offer a rare opportunity to reconfigure provision to meet better these young people’s needs and intractable problems, but it is not clear in what direction things will go. The response of the MoJ and YJB to these savings, alongside the demands for funding cuts, may be to take this as an opportunity to develop more welfare-oriented, child-centred approaches. Alternatively, there may be a threat to best practice through the merging or combining of facilities, driven by the need for cuts, which would be unlikely to reduce reoffending and would be a tragic lost opportunity.

There are several reasons for my concern. First, there has been a drop of a third in the number of children placed in secure children’s homes by the YJB, while its use of STCs has risen by 19 per cent. Real concern about this trend has been expressed by virtually every specialist agency working with these children. The views of such agencies are represented by the Standing Committee for Youth Justice, which states unequivocally that the predominantly welfare-centred ethos of the secure children’s homes is absolutely vital not only for the future chances and well-being of these children but for reducing reoffending. There should be no further reduction in the numbers of those beds. The suspected motive is to achieve short-term cost savings, which is simply counterproductive. By contrast, the STCs are part of the prison estate with all that that implies—they are essentially places of punishment—and are not an appropriate answer, greatly improved though I acknowledge they have become. It is also absolutely clear that more research is needed into a needs analysis of these children.

A policy starting point recommended by the Standing Committee for Youth Justice is the raising of the remand and custody thresholds, which would guarantee a reduction in the number of those remanded or sentenced to custody and contribute to cutting costs at the same time. That is a wise recommendation. Very worrying is the evidence that the overarching assumption that should inform the sentencing of children—namely, that custody should be used as a very last resort and for the shortest period of time—is not being adhered to. Evidence from Barnardo’s shows that 35 per cent of 12 to 14 year-olds in custody did not appear to meet the custody thresholds defined in the Powers of Criminal Courts (Sentencing) Act 2000. The evidence also suggests that 50 per cent of children remanded in custody in 2009 were subsequently acquitted or given a community sentence.

In my experience in Scotland as a member for nine years of the children’s panel, which is the Scottish equivalent to the youth court, our guiding principle was, and still is, that the child’s needs should be addressed as a priority, for it is only in understanding his or her needs that you can begin to understand and deal appropriately with the deeds that have led to the hearing. I am quite clear that there are times, especially for the most difficult, when secure accommodation is indeed absolutely necessary because security is what is really needed and the child is at serious risk in the community, whether from family, lifestyle or contacts. Indeed, sometimes the community may be at risk from a child’s chaotic or violent behaviour, but this is usually for a brief period. However, any placement should be very frequently reviewed so that proper assessments are made. I believe that that is the right model.

The recent development, within prisons in England, of what are called “enhanced units” for children and young people is interesting but also worrying. For example, the Keppel unit at Wetherby YOI and the Willow unit at Hindley YOI have recently been developed. I have visited the Keppel unit and seen evidence there of very good work, of which the YJB is justly proud. However, imprisoning children with adult provision being adapted to them rather than being designed around their needs is simply not right. It raises the question of whether such provision is becoming the alternative in the MoJ’s planning for secure children’s homes provision. That would be a real mistake. There is no question of the need for specialist provision, but it must be properly geared to meet the needs of this group of children in a specialist environment.

Cost is a very real issue for the YJB. For example, the cost per bed night in one of the four STCs, such as Oakhill, can be £861.40. There has always been a perception that secure children’s homes were more expensive, but the Prison Reform Trust has demonstrated that this is no longer the case. It quotes one children’s home at a mere £599 per night. This is important because it seems that there is more scope for negotiating price. The figures for residential provision, although absolutely mouth-watering, reflect the needs of the most vulnerable children, to whom our duty of care must be honoured.

These are just some of the issues that the Government must take into account. False economies are not what these children, or the country, need. I look forward to hearing reassuring words on the future of current best professional practice in secure children’s homes from the Minister.