Criminal Justice and Courts Bill

Debate between Lord Ahmad of Wimbledon and Lord Ponsonby of Shulbrede

Monday 14th July 2014 Lords Chamber

[Lord Ponsonby of Shulbrede]

My Lords, I want to pick up on the point that my noble friend Lady Kennedy of The Shaws has made and speak to Amendment 13, on the review of this extension of tagging. My honourable friend Dan Jarvis made the point in the other place about possible unforeseen consequences of this extension. I was talking to a magistrate colleague of mine only last week, and she pointed out to me that the new GPS tags are physically much larger than the existing tags used today. That means that they are possibly easier to remove—but there is another possible consequence, in that they need charging much more often. The existing tags do not need recharging because the battery lasts for the length of the period that the person is tagged. Potentially, that raises a whole series of issues with offenders—people out on bail or offenders in the case that we are now discussing—who are not properly recharging their GPS-driven tags. My understanding is that they would have to do it by an induction loop; it would not be a physical connection. That could raise a lot of unforeseen consequences, which is why I reiterate my support for Amendment 13, so that it can be looked at when the provision comes into force.

[Lord Ahmad of Wimbledon (Con)]

My Lords, the effect of Amendments 9, 10 and 14 would be, as my noble friend Lord Marks said, to remove from the Bill the provisions which would allow for compulsory electronic monitoring conditions to be imposed on offenders on release from custody. This would leave the use of these conditions on a discretionary basis, as they are now under the Criminal Justice and Court Services Act 2000. I understand that there are some concerns about how these powers will be used. Therefore, it may be helpful if I take some time to explain how the provisions would work and why the Government consider them necessary and important in our drive to deliver a more effective sentencing and rehabilitation framework.

I emphasise that legislation has been in place for some years to provide for the use of electronic monitoring as a condition of release, both to monitor compliance with other conditions, such as curfew or exclusion conditions, and to monitor the offender’s whereabouts as a condition in its own right. The limitations of the current technology have meant that, in practice, electronic monitoring has been used so far simply to monitor compliance with a curfew. However, we are reviewing the electronic monitoring contracts, which provides us with the opportunity to take advantage of new, cutting-edge technology that will enable us to track offenders in the community.

Criminal Justice and Courts Bill

Debate between Lord Ahmad of Wimbledon and Lord Ponsonby of Shulbrede

Monday 14th July 2014 Lords Chamber

[Lord Ponsonby of Shulbrede]

I take the point the noble Lord has made. I was really seeing this in the wider context of not just cautions but of out-of-court settlements as a whole. As we know, in London, for example, there are many tens of thousands of out-of-court settlements. Many of them are not cautions but other forms of out-of-court disposals which should be addressed by the scrutiny panels as and when they are running. Nevertheless, the point the noble Lord, Lord Marks, made is a fair one, and I acknowledge it.

[Lord Ahmad of Wimbledon (Con)]

My Lords, although some of the contributions were about the group that follows and the stand part on Clause 15, I will speak to the amendments in this group. If noble Lords have any additional comments when we get to the next group, I shall cover the specific issues relating to Clause 15 at that time.

The amendments tabled by my noble friend Lord Marks, while well intentioned, would have a detrimental effect on how simple cautions are administered. It is only right and proper that cautions are given only when justified. Serious offences should be prosecuted and offenders should not be able to get off with a simple caution. It is therefore right that the decision to administer a simple caution is taken at the most appropriate level commensurate with the offending behaviour. The propositions set out in Clause 15 follow the review of simple cautions conducted by the Government last year and were developed in conjunction with the police and the CPS.

Perhaps I may refer briefly to Clause 15. It already creates the appropriate levels of authorisation based on the seriousness of the offence when deciding whether to give a simple caution. Amendment 21 would affect the provisions on indictable-only offences. The clause provides that a simple caution can be given only for such an offence where a police officer determines that there are exceptional circumstances and the Director of Public Prosecutions consents. The noble Lord, Lord Kennedy, asked for examples of exceptional circumstances and when it would be appropriate for the police to administer a repeat caution. I do not want to be drawn at this juncture into trying to determine what “exceptional circumstances” should or could mean. They are operational matters that would be unique to each case. However, there is specific guidance to this which is used by the police, and those factors are taken into account when determining where there are exceptional circumstances. Specific examples include the age of the offender, culpability, remorse and the mental health of the offender.

The rank of the police officer will be specified by order made by the Secretary of State. However, we anticipate that the order will specify the rank of at least superintendent. This mirrors the position in the current guidance on adult simple cautions. The amendment would remove the senior police officer from the decision-making process. In practice, the role of the DPP will be undertaken by the Crown Prosecution Service. The regional office of the CPS should be best able to determine for operational reasons who should make a decision about whether a simple caution for an indictable-only offence should be given, and it is not right that we should restrict this to the regional chief crown prosecutor. In practice, the chief crown prosecutor may well determine that the decision is his or hers to make, but we should not be so prescriptive as to set this out in legislation.

Amendments 22 and 23 would require the regional chief crown prosecutor to decide whether to give a caution for a specified either-way offence, and separately non-specified either-way and summary-only offences where the offender has been convicted or cautioned for a similar offence within the last two years. The clause as drafted makes it clear that these decisions must already be taken by a police officer of a rank specified by the order made by the Secretary of State. It is envisaged that the Secretary of State will determine that the decision to give a simple caution for a specified either-way offence will be made only by an officer of at least the rank of inspector. For non-specified either-way offences and summary-only offences, it is envisaged that an officer of at least the rank of sergeant will determine whether a simple caution should be given. Escalating all these decisions to the regional chief crown prosecutor would hugely slow down the decision-making process to administer a simple caution and would increase the burden of bureaucracy on both the police and the CPS. In difficult cases the police can always consult the CPS. It is also worth noting that the public interest test in Amendments 21 to 23 is already exercised by the police and, where relevant, the CPS under the existing guidance on simple cautions when determining whether to give a simple caution. It is also anticipated that revised guidance will require the public interest test to continue to be exercised in the same way, and therefore there is no need to replicate this in statute. It is a level of detail that is best set out in guidance.

Amendment 24 seeks to ensure that a senior police officer would determine whether there are exceptional circumstances such that a simple caution can be given where it otherwise would not be, and whether an offence is similar to a previous offence. It is only right and proper that simple cautions should be given only when justified. Serious offences should be prosecuted and offenders should not be able to get off with a simple caution. It is therefore right that the decision to administer a simple caution is taken at the most appropriate level commensurate with the offending behaviour.

Anti-social Behaviour, Crime and Policing Bill

Debate between Lord Ahmad of Wimbledon and Lord Ponsonby of Shulbrede

Monday 2nd December 2013 Lords Chamber

[Lord Ahmad of Wimbledon (Con)]

My Lords, I thank the noble Lord, Lord Ponsonby, for tabling his amendment. As he explained, it is probing in nature and seeks to establish a local panel to scrutinise the strategy and use of cautions and out of court disposals in particular. I listened carefully to the reasoning given for the reduction in crime; there were some interesting comments.

I draw your Lordships’ attention to the out of court disposals review that is currently taking place, in partnership between the Ministry of Justice and the police, and in conjunction with the Home Office, the Attorney General’s Office and the Crown Prosecution Service. The review will look at all out of court disposals currently used against adults and consider how they might be reformed. The aim is to ensure that out of court disposals are as effective, simple and transparent as possible. The review includes conditional cautions and community resolutions, both of which will be subject to the community remedy. This public consultation was launched on 14 November to seek the views and experiences of professionals, victims’ organisations and the public. The consultation will conclude on 9 January and the review as a whole will conclude later in the spring.

Two key themes of the review—picking up on a point raised by the noble Lord, Lord Ponsonby—are transparency and accountability. The consultation asks the public to consider whether they think there is more information about out of court disposals that should be shared; whether they are able to hold the police to account for the way that out of court disposals are used; and how they think that the Government can make the out of court disposal system more accountable.

In particular, the consultation asks for views on what sort of offences out of court disposals are appropriate for. I agree that the use of cautions for serious offences and repeat offenders requires careful consideration in each specific case. The Review of Simple Cautions, to which the noble Lord referred, has already been completed. The review made it clear that cautions should no longer be used for indictable only offences, and certain serious either-way offences, unless there are exceptional circumstances, and that those who persist in criminal activity should no longer expect to receive a caution. Those changes have been made to the guidance on simple cautions.

The out of court disposals review is also looking at this issue. Currently, the guidance for all out of court disposals indicates that they are available for all offenders, but are primarily intended to address first-time offending. The latest data, for 2012-13, show that 60% of those getting a caution—that is, either a simple or a conditional caution—have not received a previous caution.

On the issue of senior officer oversight, the simple cautions review recommended that there should be greater local accountability and scrutiny of decision-making. The review further recommended that each force should have a senior officer identified as responsible who would provide local leadership and accountability and who would make use of local scrutiny panels. We are considering that recommendation carefully as part of the wider out of court disposals review. There are clearly links between the matters considered in the simple cautions review and the out of court disposals review, and we will consider these alongside each other. Further, I assure the noble Lord that the issues he and others raised in this debate will be fed into the out of court disposals review.

The draft guidance on the community remedy signposts existing CPS guidance on the use of conditional cautions. The community remedy will work with any changes to conditional cautions or community resolutions that take place as a result of the review, but we need to be careful not to impose anything in the Bill or the guidance that will contradict or restrict any changes to those systems.

I will pick up a few points made by the noble Lord, Lord Rosser. He asked about the crimes for which the remedy might be used. They are low-level criminal damage, low-value theft, minor assault without injury and anti-social behaviour, and are currently set out on page 15 of the draft guidance. In addition, the noble Lord asked whether the offender could insist on prosecution. The answer is no. He asked whether the community remedy only applied to first-time offenders; I have already covered that particular issue. I was asked what records are kept. The police will keep records in accordance with the Data Protection Act 1998 and will retain them if there is a specific police purpose. As I said, a much more detailed review will end in January of next year.

The noble Lord, Lord Ponsonby, indicated that this was a probing amendment. I hope by what I have said that that I have conveyed that there are broader issues to consider as well. We will undoubtedly return to this issue once the current review results are out. In the interim, I hope that the noble Lord is reassured both by my explanations and my commitment that the content of this debate will be included in that review, and that he will be minded to withdraw his amendment.

[Lord Ponsonby of Shulbrede]

My Lords, I thank the noble Lord, Lord Ahmad, for that response to my amendment. I am pleased that there will be a further review of out of court proposals. Perhaps there should be a review of the scrutiny panels themselves? The purpose of my amendment is not to address a lack of legislation. The legislation has been in place for years: it is just that it has not been implemented.

[Lord Ahmad of Wimbledon]

On that point, as I said in my response, one thing that the wider review is doing is talking directly to local players on the ground, including local police, to feed back on the effect. The noble Lord is quite right that legislation is available. What we need to see is practical implementation. We hope that the more detailed review will address those issues.

[Lord Ponsonby of Shulbrede]

Once again, I thank the noble Lord, Lord Ahmad, for that explanation. I will make one last point. In London, where 25% of all crime in England and Wales takes place, as far as I am aware no scrutiny panels are in operation. Having said that, I beg leave to withdraw the amendment.

Offender Rehabilitation Bill [HL]

Debate between Lord Ahmad of Wimbledon and Lord Ponsonby of Shulbrede

Tuesday 25th June 2013 Lords Chamber

[Lord Ahmad of Wimbledon]

My Lords, Amendment 16 seeks to ensure that all providers of probation services are required to,

“participate in, and be accountable to, community safety partnerships and to co-operate with crime and disorder reduction partnerships and local integrated offender management schemes”.

As was said in Committee, the Government are clear that nothing we do to tackle reoffending will work,

“unless it is rooted in local partnerships”.—[Official Report, 5/6/2013; col. 1217.]

I have seen how that works in practice. We absolutely expect future probation providers to engage with the relevant statutory partnerships. It will be in providers’ interests to work with other partners to achieve the best results. Our payment mechanism, which will reward reductions in reoffending, will incentivise them to do so.

In tabling the amendment, the noble Lord seeks to ensure that all probation service providers are both members of, and accountable to, community safety partnerships and other crime reduction initiatives such as integrated offender management. Section 5 of the Crime and Disorder Act 1998 sets out who should be the responsible authorities for the reduction of crime, disorder and anti-social behaviour as well as for reducing reoffending. A provider of probation services will be a responsible authority for these purposes where the arrangements entered into with the Secretary of State provide for it to be a responsible authority.

As a responsible authority, current probation providers already have a number of obligations including being involved with the formulation of the local CSP strategy and plan for community safety, attending CSP meetings and sharing depersonalised information with the other four responsible authorities. Community safety partnerships are subject to overview and scrutiny by the local district council. As a responsible authority, providers of probation services already participate in this process. Nothing in this Bill will amend or change the Crime and Disorder Act. Providers will need to demonstrate how they will work in and strengthen local partnerships if they are to be successful in bidding to deliver probation services. Specifically, we are including a requirement for providers to evidence in their bids how they will relate to and incorporate integrated offender management arrangements into their proposal and contracts will reflect this. I hope my noble friend is reassured by that.

We are reviewing the current statutory partnership requirements to ensure they are appropriately assigned and discharged in the new system and we envisage that the contracts will reflect the statutory partnerships providers are required to participate in. Furthermore, the National Probation Service and contracted providers will be required to develop effective operational and strategic partnerships with each other and agree their respective roles and responsibilities in relation to statutory partnerships to minimise duplication and maximise effectiveness. Once the system is up and running we will monitor local partnership working as part of obtaining assurances of the delivery of services and we will liaise with police and crime commissioners, local authorities and other relevant partners as appropriate.

I understand the noble Lord’s concern. Indeed, he approaches these issues with great expertise and I appreciate the sentiment behind this amendment. However, I fear that some unintended consequences may arise from it. The amendment would in effect mean that every provider of probation services in an area, no matter how big or small, would have to participate in and be accountable to community safety partnerships and other crime and disorder reduction partnerships. Different areas of the country will have different partnerships, of different sizes and with different challenges. The right approach is to look at this carefully before deciding which provider, at which level, is a responsible authority. A tailored approach, rather than a blanket one, seems to me to be the right way forward.

I have outlined the existing legal responsibilities and requirements on providers of probation services and reiterated our commitment to local partnerships, together with the steps we are taking to ensure that our reforms are rooted in local partnerships, so that offenders can access the broad package of support they need to get their lives back on track. I have also outlined potential unintended consequences of the amendment. I hope, with the clarifications I have given and the assurances I have made, that the noble Lord will be minded to withdraw his amendment.

[Lord Ponsonby of Shulbrede]

My Lords, the noble Lord said that appropriate requirements are being reviewed and that the Government are reviewing which provider may be appropriate at which level. He went on to talk about monitoring local partnership working. It seems to me that all of this is under review and we should have a better idea at this stage of the Bill what the actual requirements are going to be. London Councils has raised these concerns with us. The London Probation Service accounts for 25% of the whole country. If it is unclear and worried, as it clearly is, surely it has a right to expect more than just more reviews about appropriate levels. Surely there should be more meat on the bone— to use the expression I used earlier—about what the responsibilities of the local authorities will be and what information they will receive. Having said that, I hear what the noble Lord has said and I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Ahmad of Wimbledon]

My Lords, I thank the noble Lord, Lord Ponsonby, for setting out his reasoning behind this amendment. I also thank my noble friend Lord McNally for doing a sterling job as a Whip on this amendment. Never let it be said that the noble Lord, Lord McNally, is not quick on his feet. I think he has broken all records in rushing over to the Box.

Amendment 17 would ensure that probation trusts and local authorities are not precluded from tendering for or commissioning contracts. As was said in Committee, I agree with the general intent of ensuring that existing providers, where much of the knowledge and expertise lies, should be able to compete for contracts, a point well made by the noble Lord. However, we do not believe that this amendment is necessary.

We want to see the broadest and most diverse market for the delivery of offender services in the future so we want as many organisations and entities as possible to be able to bid to deliver services. Nothing in our proposals specifically excludes public bodies, although such entities would need to be capable of bearing the financial and operational risks associated with the delivery of these services under payment by results. Delivery or commissioning by probation trusts themselves would be unlikely to meet those criteria given that we have announced that we will be dissolving trusts in their current form and creating a new national probation service.

However, I agree that we should do all we can to ensure a level playing field, as the noble Lord stated, for all those interested in delivering services. That is why our competition process is designed to allow a range of different kinds of entities, including alternative delivery vehicles and mutuals designed by individuals within the existing probation trusts, to be able to bid to deliver services. We have also increased to 21 the number of areas we want to commission services across in order to ensure that contract package areas are of a variety of sizes and values. This is to enable more medium and small organisations to join bids in order to take part in the delivery of services. I know that the Secretary of State himself is very keen to see small and medium organisations as part of this process.

A number of staff within probation trusts have already expressed an interest in being part of a mutual to bid and deliver services. On 20 May, the Government announced a package of measures to support the voluntary sector and mutuals. In particular, the Cabinet Office’s mutuals support programme is providing intensive one-on-one support to prepare the first cohort of seven fledgling probation mutuals for competition, including coaching on legal, financial and commercial issues. The contracts for this support, totalling more than £500,000, have recently been awarded.

Local authorities may also play a part in the delivery of the new services—for example, as part of a provider’s supply chain—and will also be able to commission rehabilitation providers to deliver additional services in line with their own priorities. The amendment has changed somewhat from the one tabled in Committee to ensure that probation trusts and local authorities are not precluded from also commissioning contracts. The Government remain firmly of the view that commissioning contracts on the scale proposed and on a payment by results basis will be most effectively and efficiently carried out by a national function.

We are committed to commissioning and providing services that meet local needs, and we will ensure that the commissioning process is informed by engagement at police and crime commissioner and local authority levels. Probation service local delivery units will support the gathering of intelligence on needs and priorities at a local level, including from key partners—for example, local authority needs assessments—to feed into the commissioning process.

Contracts will be responsive to changing demands and priorities at local and national levels, new legislation and the wider commissioning context. Where commissioning priorities need to be adjusted, this will be done in consultation with the relevant stakeholders.

The noble Lord, Lord Ponsonby, raised the issue of apportionment of risk. He made a very valid point and it is one on which we have also been in discussion with officials. Perhaps I may write to the noble Lord on that specific matter. It is a concern and I, too, have sought clarification on it. He was perfectly right to raise it.

That aside, with the assurance that I will write to the noble Lord on that point, and with the other reassurances that I have given him about the proactive work within government to ensure that all organisations have an opportunity to bid to deliver services in a variety of ways, I hope that he will feel able to withdraw his amendment.

[Lord Ponsonby of Shulbrede]

My Lords, I thank the noble Lord for that response. He talked about a number of probation mutuals which are being established and which will be bidding for elements of work. My understanding is that these are smaller organisations than at the probation trust level and that they will be dealing with a particular expertise which is within the existing probation trusts. My point is that the organisations that form mutuals or that bid in some way will need to be large scale. If they are to be only smaller parts of probation trusts, then that expertise may be lost to the public sector, which was the burden of my introductory speech.

Having said that, I am obliged to the noble Lord for undertaking to write to me on the question of risk and I beg leave to withdraw my amendment.

Offender Rehabilitation Bill [HL]

Debate between Lord Ahmad of Wimbledon and Lord Ponsonby of Shulbrede

Tuesday 11th June 2013 Lords Chamber

[Lord Ponsonby of Shulbrede]

My Lords, the noble Baroness, Lady Hamwee, raised some interesting points about the role of the responsible officer when an offender applies to change their residence. When considering this amendment, I immediately thought of all the potential problems that might arise. There is also the general point about the level of independence of judgment of the responsible officer when considering these applications. Two questions came to my mind. What would be the position if somebody with a series of convictions for domestic violence wanted to move into a house with a new girlfriend? That might hinder rehabilitation; it would be a judgment that would have to be made by the responsible officer. I do not know what the result might be. I am not sure that the responsible officer would necessarily be told that that was the situation.

Conversely, what would happen if the girlfriend wanted to move into the offender’s current address? If told about it, the responsible officer may have a responsibility to the new girlfriend to ensure that she is informed of the offender’s previous convictions. These are difficult matters which need a lot of expertise to be able to deal with them and there needs to be guidance—maybe non-statutory guidance—for the officers. In general, I am sympathetic to the amendments which the noble Baroness has moved, but I am conscious that there may well be many problems with making those decisions.

[Lord Ahmad of Wimbledon]

My Lords, I thank my noble friend Lady Hamwee for moving her amendment and the noble Lord, Lord Ponsonby, for his contribution.

Before responding to the substance of the two amendments, it may be helpful if I briefly set out the purpose of Clause 16. In essence, it would place a new duty on offenders serving community orders or suspended sentence orders to seek permission from their responsible officer or from a court before changing their residence. It replaces the existing requirement for offenders simply to notify their responsible officers after they have moved. It is intended to deal with cases where an offender moving from one probation trust puts at risk the effectiveness of their rehabilitation. For example, a move to a different area may bring to an end an established relationship with the offender’s supervisor. Instead, they may have to start again with a new supervisor from a different probation trust or, in the future, a different rehabilitation provider.

Noble Lords will know that the personal relationship between offenders and their supervisors is important to reducing reoffending. Evidence suggests that offenders with a positive relationship with their offender manager are less likely to offend. This will be particularly important with a move to a through-the-gate model of support, where an offender may have had contact with the same mentor or supervisor before and after release. Another example is a case where a specialist programme that the offender is attending is not available in the area that the offender is proposing to move to. In such cases, a court or responsible officer may consider that ending participation in that programme may set back the offender’s rehabilitation.

Clearly, there are many reasons to support, rather than prevent, an offender changing residence. For example, an offender may be moving to live with family or to take up a new job. We recognise that there will be many cases where a move would not have any negative impact on rehabilitation or on compliance with the order. For example, it may be a move of only a short distance which does not prevent the offender attending required appointments. Even with a long-distance move, programmes may be available in the new area that are equally as appropriate as those in the old area. We recognise this and have built it into the way that the clause is structured. The clause limits the circumstances in which a court or responsible officer can refuse permission to change residence to only two scenarios: where the move is likely to prevent the offender complying with a requirement of the order; or where the move would hinder the offender’s rehabilitation.

Amendment 31 would make explicit that these are the only grounds on which a court or responsible officer can refuse permission to change residence. However, the effect of the way that the clause is drafted is to provide already for these two circumstances, and only these two circumstances, to be grounds for refusal. I am very happy to make that clear to my noble friend Lady Hamwee. I hope that, on that basis, she will see fit to withdraw the amendment.

The noble Lord, Lord Ponsonby, who always comes to these matters with great experience and expertise, gave the example of an offender who had been committed for domestic violence. This situation would require a subjective assessment to be made and it would be for the responsible officer to weigh it up in the risk assessment. This is the sort of decision that professionals make on a daily basis. I listened with great care to the noble Lord’s suggestion about looking at the guidance. I am sure that we will look at it, and I take on board the comments that he made in that respect.

Amendment 32 would provide that a court or responsible officer cannot refuse an application to change residence unless the offender’s rehabilitation or compliance with a requirement of the order would be significantly less likely to be achieved. I hope that I can reassure my noble friend on a number of points. First, even if a move is likely to prevent compliance or would hinder rehabilitation, courts and responsible officers will still have to balance this with other factors. For the purposes of this clause, both courts and responsible officers, whether probation staff or from the voluntary or private sectors, are public authorities within the terms of the Human Rights Act 1998. This means that they are required to balance the impact of the proposed move on rehabilitation or compliance with the order against the offender’s interests in making such a move. They will have to consider the availability of rehabilitative support in the area that the offender wishes to move to, and the extent to which an offender could comply with a requirement in the new area. They will also have to consider the offender’s Article 8 rights. For example, an unemployed offender may wish to move to take up a new job or for family reasons—for example, if their partner is taking up a new job or if a parent is unwell and they need to provide them with care or support. In many cases, factors like these would outweigh concerns about compliance with a requirement or continued rehabilitation. It would be open to a responsible officer to take the order back to court to ask for it to be varied or revoked to suit the offender’s new circumstances.

I would also point out that the clause provides the safeguard of allowing offenders to apply to the court for a decision in cases where the responsible officer has refused permission to change residence, so in cases where offenders feel there are compelling reasons to move which outweigh any potential impact on compliance with a requirement or rehabilitation, they would be able to apply directly to the court to reconsider their case. I hope that these points reassure my noble friend, and, indeed, all noble Lords, that this clause provides a means of supporting the continuity of rehabilitation in cases where a change of residence could put it at risk without impinging on offenders’ wider family or work commitments. With those reassurances, I hope that my noble friend will feel able to withdraw the amendment.