Crime and Courts Bill [HL]

Lord Beecham Excerpts

Tuesday 30th October 2012 Lords Chamber

[Lord Beecham]

My Lords, in a previous debate, I described the then Lord Chancellor as a practitioner of the John Lewis style of politics—never knowingly understated. It seems that this is now embedded as the Government’s house style on justice issues. Ten days ago the weekend news resonated with talk of the Prime Minister shifting from “hug a hoodie” mode to “mug a hoodie”. We were expecting Dostoyevsky—“Crime and Punishment”, admittedly, rather than “The Brothers Karamazov”, which is presumably confined to the roles of the Prime Minister and the Deputy Prime Minister. But instead we ended up with something rather like a Bow Group pamphlet because, as it turned out, the Prime Minister’s speech and the ensuing long overdue government response to the consultation on community sentences, together with the amendments that they have now brought forward, reflect generally a more nuanced approach to the issues than we were led to believe was coming—as well it might, given the £10 billion a year cost of reoffending and the overcrowding in our prisons. It is a pity that while we have the government amendments before us, we do not as yet have accompanying Explanatory Notes, and I trust they will be available well in advance of consideration in Committee.

We welcome the decision to drop some of the more eye-catching proposals which aroused significant opposition in the consultation, such as driving bans, new powers to confiscate assets and fixed penalties for certain breaches of community orders. Equally, we support the proposals on restorative justice, building on some of the pioneering work already being done in different parts of the country. We also approve of raising the limit on compensation orders, which can be made in the magistrates’ courts. But there are questions, which some of your Lordships have raised already, to be answered about how proposals on restorative justice will work. What support will be offered to victims, who, as the noble and learned Lord, Lord Woolf, pointed out, should be at the centre of the restorative justice process? Equally, it will not be enough to say, as the Minister was quoted as saying, that offenders will be just saying sorry—although I suspect that the report did not do full justice to what he was talking about to the Guardian reporter. I do not think that that is by any means sufficient, and I do not believe that the Minister believes it, but perhaps he would like to go on the record and correct the impression given in his interview in the Guardian. In recognising that using restorative justice in appropriate cases could and, indeed, should, be cost-effective, have the Government estimated the cost of the process in terms both of cash and personnel, including the issue of training, to which the noble Lord, Lord Marks, referred?

The Government have laid great stress on the need for community sentences to contain a punitive element, although it is estimated that between 60% and 80% of such sentences already do so. The Government’s proposal that every community order must include one punitive element, a fine or both, has been the subject of concern around the House today. My noble friend Lord Rosser has already referred to concerns about offenders with mental health problems or learning difficulties. It would be helpful if the Minister could indicate that such matters could fall within the “exceptional circumstances” disapplying these provisions referred to in the amendment which would insert in the Criminal Justice Act 2003 new subsections (2A) and (2B). The noble Lord, Lord Marks, raised a series of questions about that. It would be unfortunate if his deduction was correct that exceptional circumstances might mean precisely that and there would be very few cases in which the courts would be able to depart from the provisions of new subsection (2A). We look forward to hearing from the Minister about his perception of what is intended by that phrase.

One such punitive measure could be electronic monitoring, which could certainly be useful in a number of cases. But given the recent critical report into the cost of the present scheme, what assurances can the Minister give that the costs would be much closer to those apparently charged in the US for the technology that is used there? Policy Exchange, not exactly the think tank of choice for bleeding heart liberals, has pointed out that around £883 million could have been saved by adopting the US practice of the scheme being applied by the judicial system rather than relying, as we have in this country, on three very expensive contracts with private sector contractors. What would be the process for any new contracts, using the new technology as it is developed?

The Government also propose to issue a code of practice in relation to electronic monitoring. Will this be subject to parliamentary approval, and will the data collected be available to government and other agencies in dealing with the consequences of offences? In any event, as the noble Lord, Lord Reid, and others have indicated, it will be important not to fetter the court’s discretion as to sentencing, and to give full weight to the rehabilitative element to address the issues which often will underlie the criminal behaviour that brings people before the court in the first place. These can, of course, range widely from alcohol or substance abuse to health, particularly mental health problems, to which reference has already been made, and low literacy and numeracy skills or lack of parental support. In dealing with all these matters there is clearly an important role for probation. Many of your Lordships, including the noble Lord, Lord Ramsbotham, have expressed great concern about the uncertainty around the future of the probation service. That is a matter which, although it is not formally part of the Bill, must be in all our minds as we debate its progress through this House.

Equally, we ought to know something about the proposed payment-by-results scheme. There have been pilots but apparently they have been abandoned, held up or deferred. Surely, if we are going to look at this concept, we need a proper evaluation of the pilots that have already taken place. It will not be good enough to proceed with a policy without an evidential basis.

The role of the skilled probation officer is key not merely in the sense of supervising the offender in terms of compliance with the provisions of the order but more generally in helping to identify areas in which the offender can be helped to address his or her problems, if necessary in co-operation with other agencies and services. We know that a home and a job are the key elements in reducing the propensity for prisoners to reoffend. The same must surely be true for many offenders given community sentences. Proposals to reduce access to housing benefits are not likely to assist, particularly in the case of the 18 to 24 year-olds to whom the noble Lord, Lord Ponsonby, referred.

By definition we are dealing with people who are, as it were, at the end of the process. Last week a question was asked in your Lordships’ House about London’s black cabs, which apparently suffer from severe steering problems—rather like the Government, you might think. However, the faults seem to be systemic and incapable of rectification. Much the same can be said in relation to the problems of those who end up in custody. The likelihood of their becoming offenders is closely related to factors apparent from an early age. Compared with the general population, prisoners are 13 times more likely to have been in care, 10 times more likely to have been a regular truant, six times more likely to have been a younger father and 13 times more likely to have been unemployed. Half of all adult male prisoners have been excluded from school and have no qualifications and 75% of female prisoners are in that category. Half of all prisoners have the reading skills of an 11 year-old or less, two-thirds have the numeracy skills of an 11 year-old or less and four-fifths have writing skills at or below that level. A very high proportion has drug and alcohol problems and the great majority have one or more mental health disorders, especially among young offenders. Around 20% of men and 30% of women prisoners have previously attempted suicide.

We are therefore dealing with a highly damaged group of people. To help prevent them inflict damage on the rest of us or, indeed, on themselves, we need all relevant agencies, not merely those involved in the criminal justice system, to engage with the problems of poverty, mental illness, substance abuse and addiction, lack of skills and work or a decent home—the milestones on the road to a prison cell trodden by such a high proportion of the prison population. That means the relevant arms of government and local government, including the health service, the Department for Work and Pensions, education and adult services joining together, as advocated by my right honourable friend Sadiq Khan, both at the early preventive stage and wherever necessary as part of the sentencing and custodial processes where crimes have been committed but also in the rehabilitative process and in the programme of community sentences which the Bill addresses.

In his foreword to the response to the consultation the Lord Chancellor describes the most serious weakness of our prisons as their doing,

“too little properly to challenge the individuals who end up inside them”.

That may be so but their capacity to challenge must surely be limited by the very numbers incarcerated and the overcrowding and consequent pressure on staff and facilities. He goes on to say that he is,

“determined to deliver a rehabilitation revolution: ensuring that more of the right people are inside prison”.

It is not entirely clear whether that means there should be greater numbers overall or fewer of what might be thought of as the wrong people inside. Perhaps the Minister can enlighten us on that.

However, the other principal objective must surely be that fewer who are in prison return to prison. Does the Minister agree that rehabilitation is not just relevant to those who receive custodial sentences? I assume that he does. Ought not that to be a priority for those receiving community sentences? Should not the Government be looking more closely at short prison sentences in terms of their effectiveness or otherwise and the need for follow-up after release?

There are two more issues on which I wish to touch briefly. The first relates to female offenders. The consultation response makes some reference to the relevance of community sentences to women but does not address the question of whether we simply have too many women in prison. Will the Government look again at this issue? Some years ago the number of women incarcerated had gone up threefold as against a twofold increase in the number of male prisoners and 50% of female prisoners had previously been admitted to mental hospitals. That is a staggeringly high proportion.

Will the Government also look at the position of BME offenders who are more often refused bail and who, if convicted, receive longer custodial sentences than others for comparable offences and with comparable records?

The noble Baroness, Lady Linklater, referred to the public’s attitude to sentencing. I think she was a little inclined to assume that it is rather more vengeful than is often the case. An opinion poll conducted some years ago showed that two-thirds of respondents expressed an interest in deciding what work should be carried out under the remit of community sentences. There was a recognition that prison is not a sufficient answer to the problem. Many people expressed a willingness to participate with youth offending teams in deciding what should happen to young offenders. I think we can underestimate the electorate’s intelligence. However, the noble Baroness is right to point out that we need to make the facts clear. Faced with the facts as opposed to the tabloid headlines, people would be more sympathetic to that approach and more sympathetic generally.

I commend the Government for their approach in the amendments they have brought forward and in their response to the Bill. However, a number of significant questions need to be addressed. I do not expect the noble Lord to deal with them all today. We will have an opportunity to go further into these matters in Committee. This part of the Bill is clearly on the right lines in most respects. We have to make sure that where it is not, it gets on the right lines. We also need to make sure that resources will be available to back the aspirations so that the Government’s intentions, many of which are shared by Members all around the House, can be carried out.

[Lord McNally]

My Lords, I am grateful to the noble Lord, Lord Beecham, for that response. As is often the case with his contributions, it contains a great deal with which I agree. I am also grateful to him for putting on the record statistics about the nature of people who come into our criminal justice system.

I am pleased that the noble Lord emphasised the prize of rehabilitation. I have never hidden the fact that I am not pleased with a 50% reoffending rate in mainstream prisons and a 75% reoffending rate among youth offenders. Fortunately, a very small core of youth offenders are now in custody. Even the most hard-nosed of criminal justice practitioners must see the common sense of cutting into reoffending rates which has the threefold benefit of saving the taxpayer the £40,000 or so a year it costs to keep the reoffender in prison, saving victims the trauma of future crimes and giving society a law-abiding member. So the prize for getting rehabilitation onto the agenda is extremely important. I am very grateful for some of the comments —here we had recently a Conservative Prime Minister talking positively about a rehabilitation revolution. That is very welcome and is something to build on.

I wish to comment on two of the points made by the noble Lord, Lord Beecham. I would like us to achieve with women offenders some of the success that we have had with young offenders. As the noble Lord rightly said, you do not have to look in too many women’s prisons to see those who have no place there. I am glad to say that my colleague in the other place, Helen Grant, has taken responsibility for our women’s strategy and will be publishing shortly an update of that strategy, which I freely admit will build on the pioneering work of the Corston report in relation to women prisoners. The noble Lord is also right about the 18 to 25 age group where criminality becomes embedded. We should be looking at how we try to identify some of the specific issues there.

As always with debates in your Lordships’ House, I am left with a pile of notes that either I have made myself or the Box has supplied, which would keep me here until well after the dinner hour. I would therefore ask that I and noble Lords are spared a response to every question, and I hope that we can raise them again in Committee.

Of course I do not see restorative justice being simply about saying sorry, although, interestingly, it is sometimes the most difficult thing to say. However, restorative justice also forces the offender to face the consequences of their actions and the impact that they have had upon others. In this way, it can help rehabilitate offenders and enable them to stop offending. It can help motivate them to change and become responsible, law-abiding and productive members of society.

In the examples of restorative justice that I have seen, its importance for victims should not be underestimated. The victims said on many occasions, “That enabled me to have closure” on what had been a very traumatic experience. I was therefore grateful for the comments made about our proposals on restorative justice, although I should say to all my colleagues who said that it is a big commitment that I do not underestimate the fact that it will have to be prepared with the proper training and rollout. I pay tribute to the noble and learned Lord, Lord Woolf, because it was his constant harrying on restorative justice that made it a priority for me. While I take on board the fact that it is a tough ask, perhaps I may quote Mao Tse-Tung, who said,

“The journey of a thousand miles begins with a single step”.

I hope that this is the single step that takes us towards restorative justice.

I was slightly disappointed that the noble Lord, Lord Reid, did not ride to my rescue because, again, I agreed with much of what he said. I agree that there are people in our prisons who should not be there. One of the things that I hope we are developing in this policy is the twin track, which will make sure that the people who should be in prison are put there because of the nature of their offences or for public protection, but those who should not be in prison are managed safely out of the system.

I was glad of the references to one of my other standby quotations—Jimmy Maxton’s comment about riding two horses at once. That is precisely and unashamedly what we are trying to do. We are trying to make sure that the public have a confidence in community sentencing that will allow us to implant rehabilitation into the community sentencing process, which we hope will provide the impact on reoffending that I have said is so desirable. I agree that there is a certain element of riding two horses at once. We need public confidence in community sentencing if we are going to give it the traffic that we want it to bear.

[Lord Beecham]

Does the Minister agree that it is essential that the horses run in the same direction?

[Lord McNally]

Absolutely. We might get on to troikas in a few minutes, but we will wait for that.

I also fully understand the separation of powers in our system. The judiciary and parliamentarians should show due respect for each other, but we should also respect that in the workings of the criminal justice system parliamentarians have a responsibility as well as the judiciary, and they are quite entitled in that responsibility to comment on how the system is working. I have to say to the noble Lord, Lord Elystan-Morgan, that if proposing amendments to the criminal justice system somehow disowns all the decisions that judges have made under previous legislation, it must have been really difficult under the previous Government who, I think, passed a piece of criminal justice legislation on average every year for 10 years. We should not get too thin-skinned about it. I have absolute respect for our judiciary and it is a bit rum to say that we are bullying or being high-handed. One of the key elements of this Bill spelt out clearly our trust in the sentencer to make the crucial judgments about balance in terms of punishment.

Of course we will consult on guidance. When sentencing any offender, courts are under a statutory duty to follow any relevant guidelines issued by the Sentencing Council.

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[Lord McNally]

Yes, and I think that some of the people who have been quoted as pleading exception could well be asked to work in some of those areas. The noble Lord, Lord Elystan-Morgan, shakes his head but, for me, the big danger is there being public contempt for a system where we need public respect. I am talking about somebody whose life is totally dysfunctional, who has never been used to getting up in the morning and who has no idea of time-keeping. We have heard about a number of programmes where half a dozen people are invited to participate but within a week the number is down to two because the others have not bothered to attend. We have to get credibility into the system to make it work. Because we are putting flexibility and trust in the judiciary, I hope that it will see what Parliament is looking for and help us to that end.

[Lord Beecham]

This is not on the substance but perhaps I may ask for clarification on what the Minister is moving. Presumably he is not moving the amendments, because we will be doing that when the clauses are recommitted to Committee.

[Earl Attlee]

If I may assist the Committee, we are speaking to Amendment 155ZA.

[Lord Beecham]

I know what we are speaking to but we are not voting on it. We are not agreeing these amendments. Perhaps the clerks might advise. Are we not recommitting today’s business at the end of the next debate? I am not sure precisely what the procedure is. I suggest that the amendment be not moved and that we just leave it.

[Lord McNally]

All is now clear. Yes, we have to accept these amendments but they are then subject to amendment at the next stage. They have to be in the Bill to allow us to proceed; otherwise we will still have a blank page.

[Lord McNally]

I can absolutely give those assurances. The clerk advises me, and I am sure she is right, that if we did not move the amendments we would have a blank page. Your Lordships will then have something to put amendments to, so that we can have a proper Committee stage with amendments.

[Lord Beecham]

These seem exceptional circumstances and, in that light, I am sure that we will accept the ruling.

Amendment 155ZA agreed.

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I am conscious that I have spent a little time setting out the key elements of the deferred prosecution agreements, but it is important that there is a common understanding of how this new procedure will operate. Once implemented, the Government will keep this area of the law under review and formal post-legislative scrutiny will also take place in April 2018. I firmly believe that deferred prosecution agreements can make an important contribution in the fight against economic crime, bring more wrongdoers to justice and provide redress to the victims of such crimes. I commend these amendments to the Committee and beg to move.

[Lord Beecham]

My Lords, the Minister may not have noticed but during his speech the clock stopped after seven minutes so we had “007” on the clock. Having seen “Skyfall” the other night, I do not quite see the noble Lord as Daniel Craig mark II, but I am sure that he would do very well in that capacity.

[Lord McNally]

The noble Lord should see me in my swimming trunks before making that judgment.

[Lord Beecham]

I am too young to appreciate that offer.

It is ironic that notice of the Government’s intention to proceed with amendments to the Bill to legislate for deferred prosecution agreements should itself have been deferred until barely a week before today’s debate. It is quite unacceptable for material to be made available—indeed, its very existence to be revealed—only five days ago. I appreciate that this is by way of a Second Reading debate but Ministers must have formed the intention of bringing these measures forward months ago, presumably at a time when the expected debate on community sentencing had been scheduled to take place very soon after the end of the Summer Recess. I assume that the date was altered to accommodate the change of Lord Chancellor. It is reasonable to seek to accommodate Ministers in such circumstances but entirely unreasonable to make so little effort to accommodate Members of your Lordships’ House. For the record, can we know whether the new Lord Chancellor is to be in charge of this part of the Bill or whether Mr Clarke will be responsible for it in the time he now has to spare without an attachment to a portfolio? Can the Minister also say when the Explanatory Notes for this part of the Bill will be available to Members of your Lordships’ House?

It is not as if the Government’s proposals are unimportant, breaking new ground as they do, in our system of justice. I acknowledge immediately that consideration was given to and work undertaken around the issues raised in this belated addition to the Bill by the previous Government. Indeed, it might be argued that they are, in a way, an extension of the conditional cautions introduced by the previous Government, although, as my noble and learned friend Lord Goldsmith—who might claim paternity of that policy—has pointed out to me, they are at the other end of the offending scale.

We are, after all, apparently seeking to emulate the American system, under which what are often described as aggressive prosecutors drive hard bargains with offending corporations resulting in huge payments—five times as much, or sometimes much more than that, according to the impact statement, as is likely to be yielded under what we are now contemplating.

I confess to an initial reluctance to embrace a situation in which, in the area of economic crime—for that, as the Minister has made clear, is the area to which the proposals are addressed—one class of defendants should have the opportunity of buying off a prosecution for a one-third discount or, to be more precise, an up to one-third discount, of the fine they might otherwise have to pay. The Committee will need to be convinced that such an approach is acceptable in all the circumstances, and the public will need to be convinced that we are not creating a privileged class of potential defendants without achieving a significant benefit, not only in cash terms but also in terms of corporate behaviour. Hugging a hoodie was never an attractive notion to many people. Hugging a bent bank or crooked company is even less likely to appeal.

Is not the reality that these proposals stem essentially from the failure of the Serious Fraud Office to tackle economic crime effectively? It brings few cases and, all too often, as in the recent Tchenguiz case, fails lamentably to prove them after devoting years to the task. That case evinced a warning from the High Court that the Serious Fraud Office did not have the,

“proper resources, both human and financial”,

to investigate it and, by implication, others like it.

The question arises as to whether Ministers believe that the SFO has the resources to do its job effectively, not least in the light of budget cuts already amounting to £7 million, or 19%, since 2009-10, and planned to fall by a further £3 million, or 7%, by 2015.

Noble Lords may be surprised to learn, as I was, that top salaries in the Serious Fraud Office are in the range of £70,000 to £80,000 per annum, roughly what an assistant solicitor in a City firm acting for corporate clients might expect to earn soon after qualifying.

Unsurprisingly, the SFO has tended to use civil recovery orders under the Proceeds of Crime Act, a process which has aroused the concern of the OECD, not least because such a procedure does not lead to a disclosure of the nature of the wrongdoing or the basis of the settlement. I appreciate that the Minister has made it clear that these proposals would, in the event of matters being concluded, lead to such a disclosure and also, presumably, the basis of the settlement. The whole scenario hitherto smacks of recent concerns about the manner in which Her Majesty’s Revenue and Customs have apparently settled claims on terms appearing too generous to some major companies.

Will the new proposals be better resourced than the present system under the SFO which is signally prone to failure, as it has proved? Will the relevant agencies have the,

“proper resources, both human and financial”

to emulate its American counterparts? Will the Government look again at the issue of vicarious liability for the dishonesty of corporate employees rather than relying on the present, if archaic, doctrine of the directing mind, under which there is no such liability on behalf of the corporation unless a director or senior manager is involved?

In their response to the consultation document the Government indicated that they would,

“limit the application of DPAs to economic crimes, but provide for the list of economic crimes for which a DPA is available to be amended”.

Will this be by regulation or primary legislation and, if the former, by the affirmative or negative procedure?

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On the point made by my noble friend Lady Hamwee, I really do not think that this is the slippery slope to plea bargaining and the other dark practices that she fears. The point made by the noble and learned Lord, Lord Woolf, was that if we get the code and safeguards right, we will be on safe ground. Having said that, I am immensely grateful to noble Lords for their contributions. I will study Hansard carefully and try to make sure that the House is well prepared for 13 November. Perhaps I may make one last point. Individual directors of companies will not be immune from prosecution if their company is part of a plea bargain. We will return to this on 13 November. However, if we could go through the process again, I am now asked—

[Lord Beecham]

I am not asking the Minister to reply now because noble Lords are waiting for the next debate, but I remind him that I raised two questions about Parliament’s role in relation to the Bill; first, in relation to the code which the Director of Public Prosecutions and the director of the Serious Fraud Office will produce and, secondly, in relation to penalties which the Sentencing Council will propose. We are concerned about that area, as will be other Members of your Lordships’ House. A reply about that would be helpful before we get to the next stage.

[Lord McNally]

I am grateful to the noble Lord. I could try and busk it now but it would be far more sensible to write to him and share that with the Committee. To make us entirely in order for our debate on 13 November, when amendments will be acceptable and we will be back on course as a normal Committee day, I must now move Amendment 155EZC.