Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Bach Excerpts

Tuesday 7th February 2012 Lords Chamber

[Lord Bach]

My Lords, one of the advantages of these debates is that we will hear proposals for new ways to divert people from custody. Any amendment that carries the names of both noble Lords, Lord Adebowale and Lord Ramsbotham, needs careful and sympathetic attention because both their histories in helping particularly young people who find themselves in potential conflict with the criminal justice system are proud records, and they have a lot to teach us. We are sympathetic to the idea behind this amendment, not least because of its reported success in the pilot areas where it has been tried out.

Noble Lords will know that Section 177 of the Criminal Justice Act 2003 includes a series of requirements for persons aged 18 or over who are convicted of an offence. Those requirements include,

“(e) a curfew requirement … (k) a supervision requirement”,

and the list goes all the way to paragraph (l). There are all sorts of different requirements, and there has been no reticence to acknowledge that divergence from custody and the treatment of the underlying issues—whether they be mental health or socioeconomic—are important and can be more effective than custody. It is not legislators who have been afraid of proposing alternative measures.

One of the problems is the availability of schemes which are often administered by local authorities, the probation services, youth offending teams or other diverse, multi-departmental agencies. The idea for a new community supervision requirement seems an amalgamation in one sense of powers (e) and (k) from the list that I read out earlier—but probably because it is a combination of the two, it is the stronger for it. It is a recognition that, in that transition to adulthood, a community sentence that helps to socialise people to realise that what they are doing is wrong can be a powerful and tough sentence.

There are two elements to the amendment that I want to touch on briefly. As has already been said, there is a growing recognition that there is not a cut-off point at 18 for beginning crime or carrying on with crime. The years between 14 and 24 are generally considered prime offending years, with delinquent behaviour tending to start in early teenage and tailing off at age 21 to 24. Perhaps these things are not entirely surprising; but because of them, it seems sensible to choose the ages between 18 and 25 for this new requirement. We are sympathetic to the amendment. If it has been as successful as has been claimed in the debate, the Government should be sympathetic, too. I look forward to hearing from the noble Baroness.

[Baroness Northover]

My Lords, I thank the noble Lords for their amendment. Young adult offenders are a particularly difficult group and outcomes are not always as we would wish. I have a great deal of sympathy with the intentions here.

The amendment proposes a new requirement of the adult community order called,

“an intensive community supervision requirement”,

available for offenders aged 18 to 24. It is clearly intended to mirror the intensive rehabilitation order available for juveniles. I agree that we need to reduce the level of reoffending by young adult offenders and that more intensive engagement may very well have a role to play. However, we need to find ways of achieving this without further complicating the legislative framework and constraining how the needs of this age group will be addressed.

Affordability is, of course, critical. If we were to create extra burdens through statute by delivering intensive interventions, supervision and surveillance to this age group, the Government would not have the resources to deliver what we prescribed. We want to see more effective and efficient use of resources, with payment by results and competition being used to secure improved outcomes for 18 to 24 year-olds and other offenders. A range of interventions may be used to achieve these outcomes, and we wish to avoid prescribing which approach must be used with different age groups.

I heard about the problems at Isis, and the MoJ will be commenting in due course. I also note what noble Lords have said about intensive alternatives to custody. The Green Paper Breaking the Cycle said that the Government were looking at how the IAC principles could be extended nationally. The analysis of the reoffending rates of offenders who took part in the IAC pilots is under way at the moment. We will write to noble Lords as soon as the results are available. I hope that is useful to noble Lords.

The spirit of the amendment ties in very well with work that we are already doing to improve community sentences generally. In addition to provisions in the Bill to strengthen community sentences, we want to deliver a step change in the way they operate. They must address the problems that have caused the offending behaviour in the first place: the drug abuse, alcoholism and mental health problems that noble Lords have referred to. They must also punish properly and send a clear message to society that wrongdoing will not be tolerated. We are hoping to provide sentences with a much improved community sentence offering a robust and credible punishment to deal with both young and old offenders. To this end, we are currently conducting a review of adult community sentences and hope to publish a consultation document shortly. I encourage noble Lords to feed into that. In the light of my comments, I hope the noble Lord will accept that this is not a necessary step to take at this stage and will accordingly withdraw his amendment.

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[Baroness Linklater of Butterstone]

My Lords, I rise to add briefly to what has been said for two reasons. The first is the growing concern in the business about the lack of adequate work being carried out on behalf of people in this age group. They are missing out. In missing out, they bring in their wake a whole range of the problems and difficulties that we have been talking about. It means that they are more vulnerable and needy, and that they need more attention.

Anecdotally, I should say that I have sat in on referral orders, particularly the restorative conferences that are now run rather routinely. These are remarkable and really quite moving occasions. A young 18 year-old suddenly faces the reality of what it was they unthinkingly had done, and how important that is. It is also important in the context of the ongoing support that the referral order requires and thus implies in terms of support from the probation service. It is right to say that this does not come without a price tag, but when you compare price tags you realise where the dice should fall, and therein lies the challenge for the Government because everyone is judging them on where they are going to make cuts. It is an extremely difficult equation which does not really measure up, except to say that if we do not address this hitherto undersupported group, we are going to pay a huge price. The referral orders that are being discussed are really very creative and impressive, and mark a good way forward.

[Lord Bach]

My Lords, I can be very short. These are amendments that appeal to us, too. Referral orders, which were created in the Youth Justice and Criminal Evidence Act 1999, seem to work pretty well. Increasing the age from 18 to 21 is a sensible course to take. The noble Baroness, Lady Howe, asked whether they should not be extended to an age greater than 21. We talked in the previous debate about the crucial years between 18 and 25, and 21 seems a slightly arbitrary figure. I think that I understand why it is in the amendment, but it would perhaps make more sense if the age went between 18 and 25. Twenty-one is not an age where you begin to say, “This is where offending ceases”; it is usually a bit later than that, although it is very difficult to generalise on such things. If we are going to take this course—we will certainly be interested to hear what the Government have to say about it—to extend the age from 18 to 25 would be a better course than from 18 to 21.

As far as the probation service is concerned, there are great concerns, as my noble friend Lord Judd has said. The second amendment in this group quite rightly suggests that the probation service is probably the best venue for those over 21. Once again, we look forward to hearing what the Government’s attitude is towards this innovative idea.

[Lord Dholakia]

My Lords, the noble Lord, Lord Bach, was a Minister in the Ministry of Justice during the previous Administration. In a number of debates, I have supported raising the age for referrals. Did the noble Lord undertake any costing at that stage in terms of what additional resources would be required, as against the benefit that would accrue? My fear is that the probation service in many parts of the country is nearly at breaking point. At the end of the day, the question of additional resources will boil down to whether money is available to do the work. Does the noble Lord have any information that might advance this debate further?

[Lord Bach]

My Lords, our time in government retreats into the mists of time day by day, month by month, and my memory fails. I certainly am not in a position to answer the specific question that the noble Lord asks, but to say that there were not concerns about the probation service at the time would be to tell an untruth. Some of the cuts that our Government felt were necessary to make—as do the present Government, too—related to the probation service. One of the achievements of my then ministerial colleague, the honourable Maria Eagle, was to make sure that the cuts were not so great as originally planned and that the probation service had some extra resources that it was not expecting. However, I have to concede that it was not a period, particularly in the latter years, when the probation service was getting as much money as it needed to deal with the problem.

On costs, I think that the noble Lord’s noble friend Lady Linklater had it right, as did the noble Baroness, Lady Howe. Comparing costs is very difficult throughout the Bill, not least in this particular area. I am sorry that I cannot help the noble Lord with more detail.

[Baroness Northover]

My Lords, I was very struck by the noble Lord, Lord Ramsbotham, dividing things between those which were desirable and those which were essential, and pointing to the need to prioritise. It has struck me that this Bill is above all about prioritising. It would be wonderful to be in government when there was a great deal of money to lubricate things but, even when that is the case, not all problems are corrected. We have just heard of an earlier period where, certainly during the early years, there was much more money to lubricate things yet problems persisted.

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[Lord Thomas of Gresford]

My Lords, my name is attached to this amendment.

My neighbour’s wife was parking her car in the car park nearest to the Wrexham Council offices some months ago and she put the sticker, which cost her 80p, on the windscreen but it fell on to the seat. It was still visible there but those who were collecting in the area decided that this was in breach of the regulations, so she was charged £40. A certain amount of correspondence took place with Wrexham Council, as you might imagine—indeed, the ticket was produced—and it was pointed out that there was no need for this, but nothing happened.

In the end, a magistrates’ court warrant was issued, after a lot of argument, and it was enforced. By this time, the 80p that had been paid for the sticker had become £450. The bailiffs alleged that they had been to the premises on a number of occasions. There was no sign of them having done so and the people concerned were in throughout the period, but that is what they said, and they charged an extra fee for every attendance at the property. There was absolutely no control over what they were charging. Of course, as has been stated by the noble Baroness, Lady Lister, they said that a distress warrant cannot be withdrawn. Indeed, on a bailiffs’ website that I have just looked at, they say precisely that, that it is impossible to withdraw a warrant once it has been made.

I decided to look at the case that the noble Baroness referred to, the MacRae case at Hereford and Worcester Magistrates’ Court in 1998. According to the judgment that I read, the procedure was based essentially on publications in 1990 and 1992 of the Home Office’s best practice advisory group on fine enforcement and relied substantially on a computerised fine enforcement system. When an offender is in default and has not contacted the court to request more time to pay, the court issues a final demand. If there is no response to that, the computerised system produces a draft distress warrant, which passes through certain manual checks to ensure that there are no known circumstances that would make it inappropriate to issue the warrant. MacRae decided that once that computer has produced the distress warrant and one or two people have looked at it, that is the end—the bailiff can do nothing about it.

The noble Baroness referred to Section 142 of the Magistrates’ Courts Act 1980. That was the response received from the Ministry of Justice. Section 142(1) states:

“A magistrates’ court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so”.

So there is power, which is contrary to what was said in MacRae and to what appears on current websites by bailiffs, and which is in accordance with the advice given in the case to which the noble Baroness, Lady Lister, referred.

However, there is confusion. My neighbour eventually paid up the £450 because his wife and children were in tears. Rather than keep that scene of distress going on, he produced his chequebook and paid up. What is happening is that people are being bullied on the doorstep. This amendment would put that right. It would make it clear and would clarify what is currently wrongfully being done, in my submission to your Lordships, by bailiffs.

The amendment states that a warrant of enforcement may be suspended or withdrawn but very importantly it states that a,

“person enforcing a warrant … shall be paid a single fee”.

There would not be any of these ghost returns clocking up the fees for every attendance at the property. The amendment makes specific provision for those who are in a vulnerable position and are not in a position to stand up to these bailiffs when they come round to collect. That situation has been a disgrace. This is an opportunity for the Government to put it right and clarify what the law is so that we all know what should happen and what the proper procedure should be. I support the noble Baroness in her amendment.

[Lord Bach]

My Lords, a powerful case has been made for this amendment in two powerful speeches from noble Lords. We look forward to the Minister’s response.

[Baroness Northover]

My Lords, I have listened carefully to the case made by the noble Baroness, Lady Lister, in support of this amendment. I am also aware of the arguments made by Citizens Advice and the Z2K Trust. There are essentially two issues as regards the amendment. The first relates to the current law relating to the power to withdraw warrants for non-payment of fines, which has not been particularly explored in these discussions but to which I will return.

The second relates to the practice of bailiffs enforcing those warrants particularly against fine defaulters, especially those who may be considered to be particularly vulnerable. I understand the concerns that many people have about bailiffs enforcing warrants. However, many people are concerned at the level of fines that remain unpaid. There is a balance to be struck between the need to have an effective way to collect unpaid fines, and therefore to enforce the orders of the court, and the need to allow for some flexibility in the treatment of fine defaulters.

The national standards for enforcement agents were revised last month. They set out specific standards—for example, for dealing with vulnerable and socially excluded people—and I hope that the noble Baroness has seen them. It includes a list of those who may be potentially vulnerable, including the elderly or people with a disability or where someone has a difficulty in understanding English. In addition, the contracts with bailiffs include several conditions relating to their behaviour and treatment of vulnerable people. The Government remain of the view that the national standards, guidance and contractual arrangements are the best and most effective way to ensure the appropriate use of enforcement powers.

With regard to the first issue under the amendment, which relates to the legal powers to suspend or withdraw warrants, the Government think that this area deserves further consideration. We do not think that there is any doubt that a court has the power to suspend a warrant that it issues but there is at least an ambiguity about the question of whether a court or a fines officer can withdraw or suspend a warrant issued by a fines officer. I am willing therefore to take away these points and to consider whether there is a need for a change to the primary legislation and whether that change can be made in this Bill or at a later stage. In the light of that, I hope that the noble Baroness will withdraw her amendment.

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Debate on whether Clause 83 should stand part of the Bill.

[Lord Bach]

My Lords, I shall be as quick as I can. Clause 83 is one of the shortest clauses in the Bill. It states:

“Schedule 11 (amendment of enactments relating to bail) has effect”.

If we turn to Schedule 11 on page 193, we see that it sets out the proposals for amendments to the Bail Act 1976. If there was ever a need for a Keeling schedule, it is here. Amendments to the 1976 Act are set out in various paragraphs of Schedule 11, and frankly, it is not good enough. There really ought to be a proper Keeling schedule of the amendments being made to the 1976 Act, and I really would ask the Minister to arrange for one.

My substantive point is this. Schedule 11 would subject bail in adult cases where a person has been accused or convicted of an imprisonable offence, or where a person has been released on bail but fails to surrender to custody, to a new test where bail could not be withheld if there was no real prospect that the person would receive a custodial sentence upon conviction unless he might, if released on bail, commit an offence involving domestic violence. It would also remove the court’s power, where an adult is accused or convicted of a non-imprisonable offence, to remand them in custody on the current available grounds: likelihood of failure to surrender to custody and/or previous arrest for breach of bail to commit offences or interfere with witnesses or obstruct the course of justice. It would create a new ground for withholding bail on the grounds that he might commit an offence involving domestic violence. There is a power to withhold bail, but the grounds are only that the accused might commit an offence involving domestic violence.

Of course it is a good idea to prevent remands in custody where the system can, and we support that. But the concern is—and here I am grateful to the organisation Justice for what it has to say about this matter—that the new test leaves no residual discretion to the court to withhold bail even where there is strong evidence that a defendant will commit a violent offence, intimidate witnesses or otherwise interfere with the course of justice on bail. The exceptions in the Bill relating to domestic violence, while welcome, are confined to too narrow a class of case, providing no protection for other deserving grounds; for example, where there is a substantial risk of violent intimidation of a victim of crime not of the same household as the defendant—so not domestic violence.