Prisoners: Indeterminate Sentences
Lord Faulks Excerpts(10 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I thank the noble Lord, Lord Wigley, for securing this debate. The issue of how to manage those prisoners who are still serving indeterminate sentences of imprisonment for public protection is important and one that has generated considerable interest, not least in this House.
Indeed, our IPP prisoners could hardly have more effective advocates than the noble and learned Lords who have spoken this evening. Nor has their interest and concern been recent; it has been sustained and tenacious. At a recent meeting convened by the Bingham Centre, where the noble and learned Lord, Lord Lloyd, spoke, those issues were thoroughly discussed. Although I was unable to attend myself because of parliamentary duties, he was good enough to send me a copy of his remarks there, so the Government do not pretend to be unaware of the full range of anxiety that has been expressed about the issue.
Much has been said about the history of IPP sentences. Briefly, to remind the House, the IPP sentence was first brought into effect in 2005, by the Criminal Justice Act 2003, to target those offenders likely to pose a risk of serious harm to the public. Imposition of the sentence was mandatory in certain circumstances. More IPP sentences were imposed than were originally anticipated—that is something of an understatement. The noble Lord, Lord Kennedy, said that there were problems with introduction. That, too, is something of an understatement. I understood him to be rather unrepentant about the sentence as a whole, but be that as it may. It was not until the reforms introduced by the Criminal Justice and Immigration Act 2008 that a minimum tariff of two years was imposed, barring exceptional circumstances. Further, the mandatory requirement for imposition of the sentence in certain circumstances was removed—a “may” for a “must”. On 3 December 2012, the sentence was abolished by the LASPO Act. However, abolition was not made retrospective, so those prisoners already serving IPP sentences continue to do so until the independent Parole Board finds their assessed risks to have been reduced enough to be manageable in the community.
Although this Government have abolished the IPP sentence, it would not be right or appropriate in our view retrospectively to alter sentences that had been lawfully imposed prior to their abolition. When the LASPO Bill was being debated, a number of amendments were proposed in this House that would have changed retrospectively the sentences imposed by courts. However, none of those resulted in a change to the legislation to the effect to which some arguments have been directed this evening. That is usual—it is generally the case that when changes are made to the sentencing framework, they do not impact on current prisoners, and changes will not be made to sentences that were lawfully passed at the time they were imposed. One reason for that is because a court will have had regard to the range of sentences then available when imposing a sentence, so it will not necessarily be clear what sentence would have been imposed under a different statutory regime. Indeed, it would be quite wrong to assume in any individual case what sentence a court would have imposed under such a different regime.
On IPPs, at the higher end there will be IPP sentences that have been imposed where a life sentence might otherwise be available. At the lower end, given that the courts had found risk, it is not clear whether an extended sentence or a standard determinate sentence would have been imposed. Versions of the extended sentence are available under more than one recent statutory framework, but other considerations then arise: would the various thresholds for these sentences have been reached under different statutory frameworks? What would the length of the extended licence have been?
I hope I have said enough to demonstrate the complexity of trying to translate sentences imposed under one regime to another. In this case, the courts were specifically enjoined by the law to give priority to the consideration of risk. It would make it a particularly sensitive exercise retrospectively to change these sentences, which is what the conversion process would involve.
The Government also do not believe that it would be responsible or sensible, given the high risk levels presented by many of the IPP prisoners who remain in prison post-tariff. We do well to remember that many offenders who received IPP sentences, including those who remain in custody today post-tariff expiry, did so for serious crimes—notwithstanding the observations of the noble and learned Lord, Lord Judge—including attempted murder, manslaughter, rape and sexual assault of children. Any move to release those prisoners without due consideration of the risk they pose to the public would be wrong.
I know that many noble Lords have particular concerns about those offenders with short tariffs of less than two years imposed before the 2008 Act abolished such short tariffs except where there was serious previous offending. However, internal management information suggests that the clear majority of IPP offenders currently remaining in custody with tariffs of less than two years are there because they are assessed as posing a high, or very high, risk of serious harm to the public. This means that a serious offence could take place at any time. It would not be safe or appropriate to release these offenders on licence without due consideration of the risk which they present at the current time.
No one would claim that there have not been significant problems with IPP sentences. That is why we abolished the sentence and replaced it with the extended determinate sentence. There were practical issues arising from the number of IPP sentences with short tariffs that were imposed. The sentence did not command public confidence and led to apparent inconsistencies of sentencing. It meant that victims, the public, and offenders and their families were unclear about when an offender might be released.
However, we also have a clear duty to the public not to release IPP prisoners who continue to pose an unacceptable risk. It was never the intention of the sentence that offenders past their tariff should all be released, but only those who can be effectively managed in the community. It is for the independent Parole Board to determine whether an IPP prisoner has reduced their risk sufficiently to achieve release. The board does not, of course, take these decisions lightly: it examines reports from prison and probation and from psychologists where appropriate—and of course the prison governor provides information in the dossier—and decides whether the risk to the public remains too high to release an offender. All IPP offenders who have completed their tariff have the right to attend the regular parole review oral hearings, where release is considered. The Government consider that this is the best system for balancing the rights of the offender with our duty to protect the public.
I want to mention the NOMS work to improve the position of IPP prisoners, because this is clearly an important consideration. No prisoner should be left without opportunities to demonstrate to the Parole Board that their risk has reduced. I would also like to speak about the important work that has been undertaken to improve the prospects of progression for those IPP offenders who choose to engage with the opportunities presented to them. Examples of this work include: the streamlining of assessment, targeting and management processes, to ensure that IPP prisoners’ risks and objectives are identified as early as possible; reducing waiting times for transferring IPP offenders to open prisons, from over eight months to an average of two months; the refining of our commissioning strategies to maximise resources and focus investment on those interventions proven to be effective; and publication of guidance for those managing the sentences of IPP prisoners to ensure that the focus of sentence planning is on reducing risk in a planned and sequenced manner, and not solely on completing specific offending behaviour programmes.
The indeterminate sentence prisoners co-ordination group was established in 2010 to oversee the strategic management of all offenders serving indeterminate sentences, including both those serving IPP and life sentences. The group is led at director level within NOMS, with membership from senior representatives across NOMS. The group’s work has a particular focus on improving, wherever possible, the progression of these offenders through custody and then, should the Parole Board so direct, into the community. It achieves this by developing and promoting the most effective means of managing those serving indeterminate sentences and ensuring that resources are directed appropriately. This includes informing the development and co-ordination of strategies relating to offender assessment, sentence planning and delivery, access to interventions, parole processes, prison capacity issues and offender management in the community following release. I could give a number of examples of work that the group has delivered, but time does not permit me to do so.
As to interventions, it is a common misconception that IPP offenders must complete offending behaviour programmes in order to achieve release. Equally, it is a misconception that the completion of courses is a sufficient condition to secure release. Neither of these is the case. The Parole Board is under a general obligation to consider the offender’s risk level, which can be demonstrated in a variety of ways. In so doing, the board will take an holistic view and consider all available evidence. The completion of a number of courses is just one of a range of factors that the Parole Board will take into account.
In 2011, the Ministry of Justice carried out a research study into Parole Board decision-making in IPP cases. A summary of that research was published in 2012 and can be found on the Government’s website. There are points arising from that research that it is important to make. It suggests that programmes are far from the only relevant factor in release decisions. Release is to some extent related to the completion of programmes, but this is not a simple relationship. The research shows that the parole process is targeted on the individual and that only programmes specified to the individual’s needs, successfully completed and showing some impact on the prisoner, are likely to be taken as evidence of sentence progression. A number of other factors were important. The Parole Board members interviewed for this study thought that indeterminately sentenced prisoners benefit greatly from spending time in an open prison, for example.
Lord Lloyd of Berwick
My Lords, I can see that the Minister’s time is nearly up. I wonder whether he could deal with one or two of the arguments which have actually been advanced in the House this afternoon, in particular regarding Section 128. What did Parliament have in mind when that power was conferred on the Secretary of State?
Lord Faulks
It is of course a matter of statutory instruction what it had in mind. The Secretary of State is aware of the obligation placed on him to consider the matter. The noble and learned Lord has recently been in correspondence with the Secretary of State and I have endeavoured to give the Secretary of State’s reasons for the position that he has so far adopted in that respect. The question is whether the Secretary of State should exercise that power in the way that the noble and learned Lord and other noble Lords think appropriate and, if not, what steps are being taken to ensure that IPP prisoners are having the opportunity to obtain release via hearings from the Parole Board. On that and other matters, I will write to noble Lords because I have not sufficient time to deal with all the questions raised.
Reference was made to the European Court of Human Rights and the case of James, Wells and Lee and others. That is a decision which is not without difficulty and which has been considered by the Supreme Court in a number of contexts. I should declare an interest as an advocate in one of those cases. The decision by the European Court of Human Rights was indeed that there was an arbitrary detention because of the lack of provision of courses, and therefore a violation of Article 5(1), but it did not decide that the sentence was per se unlawful. There are of course further cases going through the courts and sometimes the facts do not quite fit the allegations. However, the Government are well aware of the consequences of that.
The noble Lord, Lord Ramsbotham, as ever made some useful observations about offender management. We do not deny that offender management problems exist in custody and we accept the recommendations of the latest inspectorate report on the improvements that need to be made. Some improvements have been made but more needs to be done, including a full review of offender management in custody which will commence next year. As the noble Lord and other noble Lords will know, an inquiry has been set up into deaths in custody. That was announced recently in answer to a Question asked by the noble Lord, Lord Ramsbotham, himself. I hope that that matter will inform decision-making in that respect.
Finally, regarding the Parole Board, there is liaison with it as a result of the Osborn decision. Increased resources have been made available to the Parole Board and there is regular communication between it and the Ministry of Justice to ensure that its resources are appropriately deployed to increase the possibility of hearings taking place.
The sentence itself was clearly ill conceived and its impact was wholly underestimated. The Government recognised that by abolishing it in the Act. The Secretary of State has not considered it so far appropriate to exercise the power given to him by the LASPO Act, on which there have been a number of arguments. However, the Government are extremely aware of the importance of IPP-sentenced prisoners having the opportunity for their release to be considered and to have the opportunity of proving whether they are no longer a danger. That is a matter of which the Government are painfully aware.
All the observations made by noble Lords this evening in this valuable and helpful debate will be taken back to the Secretary of State and if there are any matters that I have not fully dealt with in the course of it, I will endeavour to deal with them in writing.
Justice: Academic Research on Jury Decision-making
Lord Faulks Excerpts(10 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Blair of Boughton (CB)
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. At the same time, I should make clear to the House that this Question is not topical, as would be normal for a fourth Question on a Wednesday, and it is not connected to any verdict in any recent trial.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, it is the Government’s general position that juror deliberations should be confidential. The noble Lord will know that the Law Commission’s recent report, published in December last year, Contempt of Court (1): Juror Misconduct and Internet Publications, recommends a limited exception to the general prohibition to allow for academic research. The Government are considering that recommendation and will respond in due course.
Lord Blair of Boughton
I am grateful to the Minister for that considered reply. However, it is a fact that this provision in the Contempt of Court Act 1981 was not aimed at academic research but has had the effect of stifling it. We simply do not know how juries work. We have no objective or academic window into these rooms. Lord Devlin described juries as,
“the lamp that shows that freedom lives”.
If so, it is a lamp which is certainly being kept under a bushel. Is the Minister aware of any other area of public policy and expenditure in relation to which objective and academic-based research is illegal? If he is not, does he agree with me that, more than 30 years on from that Act, it must be possible in the internet age to design research that anonymises individual jurors and verdicts, and that it is now time to reconsider this legislation fully?
Lord Faulks
My Lords, at the present time, any researcher into this area has to obtain authorisation sponsorship from HM Courts & Tribunals Service and then apply to the data access panel, whereafter various safeguards, including anonymity and safeguards to ensure that the conviction or the innocence of a particular defendant is not called into question, will be made part of that condition. There is research. For example, Professor Cheryl Thomas has provided valuable research on this issue.
Lord Thomas of Gresford (LD)
The Minister has referred to Professor Cheryl Thomas of UCL, who produced a report for the MoJ in 2010, Are Juries Fair? One of her findings through talking to 797 jurors was that only 31% of them understood the directions in law that the judge was giving to them at the end of the trial. She recommended that, in every case, written direction should be given by the judge to the jury. Has that been carried out?
Lord Faulks
Directions to the jury are a matter for the judge in the individual case. Judges are making ever more use of written directions, particularly in difficult cases. Very often, they will provide a direction having heard submissions from both prosecution and defence counsel so that they can arrive at an agreed direction. They will give the direction orally and then again in writing. In simple cases, that may not be necessary, but in other cases it is clearly desirable.
Lord Hope of Craighead (CB)
My Lords, is the Minister aware that academic research of this kind has been permitted in New Zealand for at least 20 years and the product of that research is in the public domain? Its system of justice is very similar to ours. Does the Minister think that we might have something to learn from its experience?
Lord Faulks
In answer to the first Question, I indicated that the Ministry of Justice is considering the Law Commission’s recommendation and will of course bear in mind what is said there. The safeguards identified in that report are the same safeguards as exist at the moment. We remain open to persuasion. A Bill will in due course be coming to your Lordships’ House containing various provisions about juries. It is possible that there may be some amendment to that effect.
Lord Beecham (Lab)
My Lords, in addition to the recommendations about research, the Law Commission has proposed the creation of some new offences that apply to juries in the light of current developments, particularly in technology, and that better guidance be given, not merely in the form referred to in the question of the noble Lord, Lord Thomas. Are the Government in a position to respond to them, and to the recent suggestion by the Lord Chief Justice that in serious fraud cases, for example, a different method might be instituted which would mean that juries would not try such cases?
Lord Faulks
As to the latter question, as the noble Lord will know, that is no new suggestion. It dates back as long ago as when the Roskill commission made suggestions to that effect. There are no current plans to remove trial by jury. As to other changes in the jury system and legislating to that effect, the noble Lord may be aware that there are provisions in Part 3 of the Criminal Justice and Courts Bill dealing with, among other things, questions of electronic communication devices and the restriction on them and the restriction on jurors using the internet to obtain information during the course of the trial, which can of course compromise a fair trial, which is in no one’s interest.
Lord Taverne (LD)
My Lords, will the Minister bear in mind that the legal profession has traditionally been very conservative about certain changes? When, in the 1960s, I was a Home Office Minister and we introduced majority verdicts, the general view of the Bar was that the sky would fall and that that would be the end of justice as we knew it. More recently, it has been accepted that that is one of the most important changes that has taken place. Is it not highly desirable that we should know how juries proceed and work, based not on anecdotal evidence but on solid evidence of the kind that the noble Lord, Lord Blair, described? That is obviously in the interests of justice.
Lord Faulks
I have considerable sympathy with what my noble friend says. He will probably be familiar with Professor Cheryl Thomas’s work in which, despite certain doubts about the ability of some jurors to reach reasoned decisions, she remains a considerable enthusiast for the jury system. I accept that no system of trial should be beyond research or examination.
Justice: Cautions
Lord Faulks Excerpts(10 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Gardner of Parkes
To ask Her Majesty’s Government how many offenders received multiple cautions in the past year; and what plans they have to review the guidance to the police on the use of cautions for serious crimes.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, of the 181,000 offenders cautioned in the 12 months ending September 2013, 9,700—that is, 5%—had received a previous caution in the preceding year. The Government recently announced amended guidance for police forces on the use of cautions, following the conclusion of the Review of Simple Cautions, published on 14 November 2013. We are now legislating, in the Criminal Justice and Courts Bill, to restrict the use of repeat cautions. The Government are clear that cautions should not be used where a criminal has received a caution or conviction within the previous two years, in the absence of exceptional circumstances.
Baroness Gardner of Parkes (Con)
I thank the Minister for his reply. How effective does he think the present caution is? The young offender programme, led by the National Grid, has successfully trained more than 2,000 people to be good employees in good jobs in the past 10 years. Bearing this in mind, is there a place, in the case of less serious crimes, for early intervention before a criminal conviction, to help those under caution—particularly young people—through mentoring or courses such as those that are used with driving offences, where I understand that the courses are offered to prevent the need for further cautions or prison sentences?
Lord Faulks
My Lords, there is a range of available options. For example, there is a youth conditional caution, where a caution can have conditions attached. These conditions must be rehabilitative, reparative and punitive; punitive conditions can include unpaid work and a financial penalty. However, the most widely used community sentence for those under 18 is a referral order which has a clear basis in restorative justice. A youth rehabilitation order, which can include as many as 18 different requirements, is also an alternative to custody.
Baroness Hamwee (LD)
My Lords, does the Minister agree that what is important, as well as the aspects he has shared with the House, it that there should be consistency across police forces in the use of cautions?
Lord Faulks
I do agree with my noble friend. The Ministry of Justice has hitherto given administrative guidance but, in order to provide transparency and clarity for both the police and public, we are legislating. Clause 14 of the Criminal Justice and Courts Bill sets out restrictions on the use of cautions and makes quite clear the circumstances in which cautions are appropriate, to encourage the very consistency to which the noble Baroness refers.
The Lord Bishop of Peterborough
My Lords, the Minister mentioned restorative justice. Does he agree that, alongside limited use of cautions, a greater use of restorative justice interventions could be of great help, both in reducing reoffending and in supporting victims?
Lord Faulks
My Lords, I agree with the right reverent Prelate. There is a great case for restorative justice in appropriate cases, and it is indeed an option for it to be part of the conditional caution. There is increasing approval in this House and outside of its use.
Lord Beecham (Lab)
My Lords, with a nod to the next Question from the noble Lord, Lord Horam, given the apparent increase in the use of cautions by police forces in the past few years, might it be desirable for the Office for National Statistics to look at the figures for reported crime and for cautions? People may well be suspicious that the recorded crime statistics are depressed by the use of cautions.
Lord Faulks
My Lords, the House may be interested to know that the use of out of court disposals rose significantly between 2003 and 2007 but has fallen significantly since 2007 and continues to fall under this Government. The use of cautions is at its lowest point for almost 30 years, and nearly at half the level seen in 2007. Furthermore, crime continues to fall. Recorded crime is down by more than 10% under this Government and the independent Crime Survey for England and Wales shows crime is at its lowest level since records began.
Lord Foulkes of Cumnock (Lab)
My Lords, would the Minister, or one of his colleagues in the Ministry of Justice, arrange to meet with Kenny MacAskill—
Lord Foulkes of Cumnock
Well, I am consistent. Will he meet the Scottish Justice Minister to look at the position in Scotland and see what we can learn from each other?
Lord Faulks
I am sure—as was the Minister who previously answered Questions—that there is a great deal to be learnt from Scotland. Should the opportunity arise, I will certainly take advantage of it.
Lord Phillips of Sudbury (LD)
Might the decline in statistics—I hate even to question it—be down to the almost complete absence of the bobby on the beat?
Lord Faulks
I do not accept that. The use of cautions is widespread. One of the reasons we are making absolutely clear on the statute book the circumstances in which cautions should be used is that it will enable local scrutiny of the use of cautions. Indeed, this will enable the much maligned police commissioners to look at the figures, to be answerable to the community and to ensure that the statistics remain at a satisfactory level.
Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2014
Lord Faulks Excerpts(10 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Faulks
That the draft orders and rules laid before the House on 27 January be approved.
Relevant document: 20th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 3 March.
Offender Rehabilitation Bill [HL]
Lord Faulks Excerpts(10 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I start by expressing my regret that I did not have the benefit of being on the Front Bench when the Bill was last considered by your Lordships’ House. It was of course my noble friend Lord McNally, whom I am glad to see is in his place, who had the privilege of debating the Bill with noble Lords. I have, however, read the Official Report of those debates very carefully. I am struck by the expertise and passion displayed by all noble Lords who spoke. I have myself sat as a recorder so I have some experience of the issues that offenders face when trying to turn their lives around. However, my own experience pales in comparison with the experience and careers of many who have been involved in the justice system who have spoken during the passage of the Bill. I am sure that the collective experience of all those noble Lords will inform today’s debate, just as it has informed previous debates.
Commons Amendment 1 returns to the issue that dominated discussion when the Bill was last in your Lordships’ House: the Government’s reforms to probation under the Transforming Rehabilitation programme. It may help if I briefly summarise those reforms. Their aim is to reduce our current high reoffending rates. Almost half the offenders released from our prisons, and around one-third of those serving sentences in the community, offend again within a year, and of course prisoners released from short custodial sentences, who have the highest reoffending rates, receive no statutory supervision at all. I pay tribute to the excellent work that is already done by the probation staff with offenders subject to supervision in the community. They do important and difficult work. However, I am sure all noble Lords will agree that there is much more that we could do to address the causes of that reoffending, whether that is housing, physical and mental health issues, substance abuse or literacy, numeracy or employment skills.
It is unfortunately the case that we have to do so in the context of financial constraints on government spending. We spend around £800 million a year on probation services, a significant part of the Ministry of Justice’s budget and one that cannot be exempt from these pressures. We have a choice: either to make cuts to the current system, which of course does not provide supervision to the short-sentenced offenders who need it most, or reform the system so that our resources can provide support to all the offenders who need it. The current Lord Chief Justice put this challenge well last week when he said:
“The starting point is that we must be radical in our thinking”.
The Transforming Rehabilitation reforms rise to that challenge. We are seeking to draw on the experience and expertise of a wider range of organisations from across all sectors to support low-risk and medium-risk offenders in the community. We want to give probation staff working in those organisations much greater autonomy to support offenders as they see fit and to encourage innovation. We are creating a new National Probation Service—the NPS—directly to manage all offenders with a high risk of causing serious harm, together with any other sexual or violent offenders subject to multi-agency public protection arrangements—MAPPA.
The efficiency savings that these reforms will generate will be reinvested in two major prizes that many noble Lords have long argued in favour of. The first is a through-the-gate system of support for everyone released from prison, so that the same organisation is working before their release and afterwards. The second is the extension of supervision after release to short-sentenced prisoners, which is at the heart of the proposals in the Bill and which will allow us to support some of the most prolific offenders in our criminal justice system.
It was clear at Second Reading and beyond that many noble Lords wanted a greater chance to scrutinise these changes that the Government are making to probation services. That is what I understand to be the purpose of the amendment tabled on Report by the noble Lord, Lord Ramsbotham, which Commons Amendment 1 would remove. I remind noble Lords that the Secretary of State’s powers to commission services from a wide range of organisations already exist in the Offender Management Act 2007. Those powers, which both Houses approved, do not provide for parliamentary scrutiny of the services that the Secretary of State commissions. Nevertheless, I understand why the House might have taken the position that it did in June last year. At that stage, while the Government had announced their intention to commission probation services from a wider range of organisations, we were still developing the detail of how the new system would work. Nine months on, the position is different.
Lord Faulks
Before the noble Lord sits down, could he help the House with how he sees the form of the amendment? Does he interpret it as requiring almost any change, of any sort, in the probation service to come before Parliament?
Lord Beecham
That is not my interpretation of it. That could have been levied against the amendment originally moved by my noble friend, but this amendment makes it clear that we are talking about a national change to the structure of the service, not every individual detail. It is consistent with the description I have already read to the House—quoting Hansard—from the Home Secretary at the time, about the requirement for parliamentary approval for changes of the very kind that the Government are promoting without having sought such approval.
Lord Faulks
My Lords, this has been an excellent and important debate. The noble Lord, Lord Ramsbotham, said that he wanted a debate on the probation service and he has got one. However, there have been a number of criticisms of the Government’s approach. Among other things, they are said to have delayed but then gone too fast. It is said they have not been sufficiently transparent and that the contract management is not sufficiently secure or not prospectively secure. I will deal with some of these criticisms without wearying the House too much. I have dealt with them in a number of meetings and documents sent to noble Lords but, for the convenience of those who may not have had those documents—or had a chance to read them—I will try and summarise some of our answers.
Since my noble friend Lord McNally committed to placing documents in the House Library, we have deposited 12 sets of letters, papers and publications about the reforms, including most recently all the draft contracts for the new CRCs. The noble Lord, Lord Ponsonby, raised the question of how CRCs will interact with statutory and non-statutory partnerships. We published a consultation paper about this and all his concerns are now reflected in the operating model.
Many Peers raised concerns about big private providers outmanoeuvring smaller charities. We have made changes to the number of contract areas to allow for smaller bidders; placed a cap of 25% on market share; engaged with potential tier 2 and tier 3 organisations so that 800 are now registered; and we have decided to accept the suggestion made by my noble friend Lord Marks to set up an independent institute.
It is said that the approach has lacked transparency and there was reference in debate to the risk register. Both this and the previous Government have agreed that there is a strong interest for the Government in having a safe place to formulate and develop policies for extensive reform. To remove that space and to challenge and manage risks internally would risk damaging confidence in the programme and could lead to a culture where risks are not even raised and properly managed through fear of the implications of doing so.
I should emphasise that the risk register is by no means a list of things that will happen, only of things that might conceivably happen if we take no action and we should therefore plan for and mitigate the possibility of happening. That is simply good management. The risks are given an inherent score: the score when the risk is first identified without any controls or mitigations in place, and a current score with controls in place. A target score is also agreed. Risks are reported weekly to the departmental board, and throughout the course of the programme Ministers have been kept closely informed of emerging risks and actions being taken to mitigate them. Programme officials regularly meet Ministers—on average twice weekly—on various aspects of the programme, as well as having close and regular informal contact with Ministers’ private offices.
It is said that there is a lack of clarity about the costing of these reforms. The Cabinet Office and Her Majesty’s Treasury are full members of the programme board before the reforms and attend regular monthly meetings. They have been closely involved with our decision regarding the launch and the invitation to negotiate. The Chief Secretary to the Treasury approved the payment mechanism, the launch of the invitation to negotiate and the outline business case. The programme has been given Treasury approval.
The question of scrutiny was raised. How, the question was effectively asked, will we make sure that the new system is open to public and parliamentary scrutiny? The reform system will be regulated and held to account through a combination of independent inspection, audit and commercial account management. Her Majesty’s Inspectorate of Probation will inspect services delivered by both the National Probation Service and contracted sectors. NOMS will have the right to audit CRC delivery, and the CRC contracts will also allow the National Audit Office access to CRCs’ financial systems where public reassurance is needed.
The audit schedule in the draft contracts, which the NAO approved and commented that it provides far-reaching audit powers, provides NOMS with wide powers of access to information, IT premises and personnel, including emergency audit. The NAO scrutinises public spending on behalf of Parliament and holds government departments to account for the way they use public money by reporting the results of its audits direct to Parliament.
There was a suggestion that staff were not being well managed and that some of them, at least, were reporting to individual noble Lords that they were unhappy with the process of transition which will inevitably happen. We have transition managers working with every probation trust, whose sole role is to be the link between the MoJ and trusts. There are weekly updates sent to probation chiefs; weekly teleconferences are held with senior leaders; testing and pilots of key elements of the programme have been and are taking place; and experts from probation have been seconded to the programme to add their valuable experience.
In addition, the new heads of CRCs have now been appointed and meet on the MoJ’s sounding board, which is helping to manage the transition process. The Secretary of State corresponds regularly with probation chiefs both through letters and via video message. Ministers and the programme management regularly visit trusts and maintain informal contact with probation chiefs throughout the programme.
Lord Faulks
My Lords, in moving Amendment 2, I shall speak also to Amendments 3 to 17 and 19 to 25. Although this is a relatively large group of amendments, most make minor or technical changes to the Bill and I will try to deal with them as concisely as I can.
I will start with the most noteworthy amendments in this group. Amendment 15 focuses on restorative justice. As I said earlier, I know that there is support across the House for the important role that restorative justice can play both in helping victims to move on from crime and in rehabilitating offenders. The amendment makes explicit that rehabilitative activities carried out under a community order, suspended sentence order or post-sentence supervision can include restorative justice. Noble Lords may already have spotted that this amendment is very similar to one originally tabled by the noble and learned Lord, Lord Woolf. Having debated the issue once again in the other place, the Government have been persuaded that it would be helpful to make explicit in the Bill our intention that rehabilitative activities can include restorative justice activities. This reflects the Government’s desire to see much greater use of restorative justice in appropriate cases. I pay tribute to the noble and learned Lord for first raising this issue and I hope that your Lordships’ House will welcome this statutory foundation for the use of restorative justice as part of the rehabilitation offered to offenders.
Amendments 2, 3, 4, 9 and 22 also pick up on an issue first raised in your Lordships’ House, this time by my noble friend Lady Linklater. Together the amendments deal with young offenders who are imprisoned for serious offences as a juvenile but are then released after they have turned 18. The Bill provides that this group of offenders, like others released from short sentences, will receive 12 months of supervision after release. The amendments make it clear that this supervision can be delivered either by an adult probation provider or by a youth offending team—YOT—as the Bill already provides for detention and training orders. There will be circumstances where a YOT may be better placed to deal with the needs of a young adult offender and it is absolutely right that the Bill should give flexibility to allow for this. In that way we can avoid the cliff edge of a sudden transition from youth to adult services. Again, I pay tribute to my noble friend for having championed this issue during the Bill’s original passage through the House.
Amendments 11, 12, 19 and 20 focus on drug testing requirements imposed as part of licence or the new post-release supervision period. Currently, an offender released on licence can be required to submit to compulsory testing in cases where the offender’s conviction offence is on a trigger list. The trigger offences are those crimes that are most likely to be linked to misuse of drugs. They include theft and fraud offences as well as drug offences.
Since the introduction of the Bill, we have looked in more detail at the evidence on drug use by prisoners in the Government’s Surveying Prisoner Crime Reduction survey. It suggests, as one might expect, that there is a strong correlation between prisoners who report use of class A or class B drugs before sentence and those who go on to reoffend. However, it also suggests that using the trigger offence as a filter omits around half of all prisoners who are class A drug users and the majority of those who are class B drug users. In short, where an offence is not on the trigger list but is linked to the offender’s use of illegal drugs, there is no power to require the offender to take drug tests where that would support their rehabilitation. Similarly, in a scenario where a persistent offender who is abusing drugs commits an offence that this time happens not to be on the trigger list, there is no testing power either after they are released from custody.
These amendments replace the trigger offence threshold with a new, two-limbed test: first, the offender has a propensity to misuse specified class A or B drugs; and, secondly, the misuse by the offender of any specified class A or B drug caused or contributed to any offence of which he has been convicted, or is likely to cause or contribute to the commission of further offences. That mirrors the threshold in place for the drug appointment requirement also contained within the current Bill. It continues to provide safeguards to ensure that testing requirements are not imposed in inappropriate cases.
Amendments 14, 16, 17, 21, 24 and 25 collectively allow for the transfer of the post-sentence supervision period created by the Bill to Scotland, Northern Ireland and other UK jurisdictions. Currently, terms of imprisonment and associated licence periods after release can be transferred to and from UK jurisdictions under provisions in the Crime (Sentences) Act 1997. That can happen on a restricted basis, where the sentencing provisions of the exporting jurisdiction apply in the receiving jurisdiction, or it can happen on an unrestricted basis, where the offender transfers on to an equivalent sentence in the receiving jurisdiction’s legislation. This gives flexibility for both the exporting and receiving jurisdiction to agree a transfer in the way that is most appropriate for an individual case.
These amendments make the necessary changes to the law to allow for post-sentence supervision, the supervision default order that is available as a sanction for breach of that supervision and the new drug appointment requirement to be transferred to other UK jurisdictions. The Government have worked very closely with the Scottish Government and the Northern Ireland Executive to agree the detail of these amendments. We have agreed with both Administrations that we will work with them in advance of commencement to review the existing operational guidance that exists on transfer of sentences. The existing position, where all transfers are agreed between the relevant jurisdictions, and where jurisdictions retain the right to refuse transfers, will continue.
Finally, Amendments 5 to 8, 10, 13 and 23 are technical changes to the clauses of the Bill that deal with consecutive sentences, drug appointments and fixed-term recall. They simply make clarifications to the way in which the clauses are drafted rather than any changes of substance. I can provide further details if any noble Lord has a particular question about them. However, to keep our proceedings concise, at this point I beg to move.
Lord Beecham
My Lords, I am happy to confirm the Opposition’s support for these amendments and I am grateful to the Minister for his explanation of them.
Lord Faulks
My Lords, Amendment 18 removes the privilege amendment that your Lordships’ House added to the Bill before sending it to the other place. I beg to move.
Anti-social Behaviour, Crime and Policing Bill
Lord Faulks Excerpts(10 years, 3 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Faulks
That this House do not insist on its Amendment 112 and do agree with the Commons in their Amendment 112A in lieu.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, the House will recall that Amendment 112 changed the definition of a miscarriage of justice for the purposes of paying compensation. At the heart of all our discussions lies the question: what is a miscarriage of justice? It is a strong term, which cries out for proper definition. There is general agreement, including from the Grand Chamber of the European Court of Human Rights in Strasbourg, that it is more than a simple acquittal. The fact that someone was tried and the evidence proved insufficient to convince a jury of their guilt does not mean that a miscarriage of justice took place. Nor do the Government believe that someone whose conviction was overturned because changes to the evidence against them, such as developments in expert knowledge, made that conviction unsafe has necessarily suffered a miscarriage of justice. Although following the quashing of a conviction someone will be presumed innocent, there may be a retrial on the basis of the remaining evidence, at which there is the potential for a new conviction. Justice cannot be said, in these cases, to have miscarried.
The Government firmly believe that a miscarriage of justice can be said to have occurred where someone who was innocent was convicted. The question therefore becomes: how do you know that happened? In our previous debates, some noble Lords have asked how applicants for compensation can be expected, sometimes years after their wrongful conviction, to prove their innocence. The answer is that they will not. In all cases, the Court of Appeal will have already considered a new fact—the new fact that led to the quashing of the conviction—and this new fact will exonerate those who are truly innocent. These are the people who have truly suffered a miscarriage of justice: people who were convicted because the fact which now exonerates them was unknown or unrecognised, be it the proof that they were somewhere else, the DNA that convicts a different perpetrator or the evidence that the offence simply did not take place. It is the nature of the new fact that demonstrates innocence, and the applicant for compensation does not need to provide any further evidence to prove themselves eligible for compensation within the statutory test.
The Government remain firmly of the view that the definition of a miscarriage of justice, which was inserted by Amendment 112 in your Lordships’ House, does not provide the necessary clarity. It is similar, although not identical, to the wording used by the noble and learned Lord, Lord Phillips, in the Supreme Court’s judgment in Adams and, as he said:
“This test will not guarantee that all those who are entitled to compensation are in fact innocent”.
We believe that the test should guarantee exactly that, because we believe that only those who are shown not to have committed the offence for which they were convicted have truly suffered a miscarriage of justice and deserve recognition and recompense for that. However, I am sure that none of your Lordships wants those who are in fact guilty to receive compensation.
The amendment adopted by your Lordships on Report would have required the new fact to show,
“conclusively that the evidence against the person at trial is so undermined that no conviction could possibly be based on it”.
Careful reading of this proposed definition makes it clear how difficult a burden this places on the Secretary of State. It would require him, when considering an application for compensation, to look not just at the new fact but at the whole of the evidence, and to decide whether there is any possibility that a conviction might result. The aim of the Supreme Court in the Adams judgment was both clarity and fairness but, with all due respect, I suggest that it did not in fact achieve either. Rather, it required an adjudication from the Secretary of State considerably more complex than that which we are now proposing.
During the debate that took place on the previous occasion when this matter was before your Lordships’ House, the noble Lord, Lord Pannick, indicated that it was very unsatisfactory that the Secretary of State should be asked to pronounce on guilt or innocence. I am not sure that, on that occasion, I gave a sufficient response. Let me do so now.
Lord Faulks
My Lords, this has been an excellent debate once more, in which the House has shown its considerable knowledge, learning and experience of the issues raised by this amendment. Let me start by saying that there is general agreement on one thing: the Government were right to seek to enshrine in legislation the appropriate test for eligibility for compensation following a miscarriage of justice. The common law was undoubtedly in a state of confusion, notwithstanding the distinction of the judges engaged in the exercise of trying to provide a workable test. The decision in the Adams case, a resounding 5:4 victory, was described in a way that I could not possibly presume to describe it by the noble and learned Lord, Lord Brown, as an unprincipled fudge. It was, of course, a culmination of effort—an absolutely high-quality effort—to try to arrive at a workable definition. However, the noble Lord, Lord Pannick, says that the Government’s test will lead to disaster—to acrimonious litigation and uncertainty.
I have respectfully to disagree, because the Adams judgment has resulted in some 16 judicial review cases in the three years since the judgment. During the period from 2008 to 2011, when the case law laid down by the courts required, consistent with the Government’s position, that the applicant was clearly innocent, only two judicial reviews resulted from applications from those convicted in England and Wales. Therefore, there is likely to be acrimonious litigation. I am somewhat reluctant to be drawn on what the result would be in any particular cases, whether it is the Sally Clark case or other cases. The noble Lord, Lord Brennan, was, I think, referring to compensation under the ex gratia scheme, which was abolished by the Home Secretary in 2006. Here we are considering revisions of Section 133, which requires that the applicant has a conviction—whichever definition is adopted—and this will continue to be a requirement.
The difference of opinion on definition is simply what a claimant has to establish. It is said that the Court of Appeal Criminal Division is not primarily concerned in these cases with proving innocence—quite so. It may well decide that a conviction is unsafe, but in doing so, the Court of Appeal will, and does, provide cogent and comprehensive reasons for that decision. It does not simply declare it. That provides the basis on which the Secretary of State or those working under his direction will be able to make an assessment entirely in accordance with the very straight- forward and clear test that we suggest is appropriate.
The noble Lord, Lord Pannick, said that our law does not ask someone to prove their innocence. I agree entirely. Nor does this provision. It does not require an applicant to prove their innocence; it simply requires them to prove eligibility for compensation—money—when they are clearly innocent, to use the expression used in the common law or, as we describe it in statutory language, proof that they have not done it.
We ask the House to bear in mind that we have a position of uncertainty and litigation, which requires clarification by Parliament, as is agreed. Parliament has provided as clear a definition as can reasonably be arrived at, and one which we say is consistent with justice, does not offend the presumption of innocence and resolves the difficulties that judges have had in arriving at a workable conclusion.
The presumption of innocence is not in any way offended by the clause. I suggest to the House that it should agree that the House of Commons has considered carefully the high quality of the debate and the division of opinion among noble and learned Lords, and should respect and confirm the House of Commons decision.
Lord Pannick
My Lords, I am grateful to the Minister for the careful way in which he has addressed these matters and for the time and trouble that he has taken on this issue, not least in the helpful discussions that I have had with him over the past few months. My noble and learned friend Lord Brown of Eaton-under-Heywood spoke in favour of the Government's position. As he mentioned, he dissented in the Adams case. He did not approve of the test of the noble and learned Lord, Lord Phillips, in 2011 and he continues, as he is perfectly entitled to do, to dissent from the case made by the noble and learned Lord, Lord Phillips. The noble and learned Lord described the test of the noble and learned Lord, Lord Phillips, as a fudge. Some of us are quite partial to fudge, but I confine myself to reminding your Lordships of what was said in the Supreme Court in answer to the noble and learned Lord, Lord Brown, by the noble and learned Baroness, Lady Hale, in her judgment in the Adams case. She said:
“I do sympathise with Lord Brown’s palpable sense of outrage … But Lord Phillips’ approach is the more consistent with the fundamental principles upon which our criminal law has been based for centuries. Innocence as such is not a concept known to our criminal justice system. We distinguish between the guilty and the not guilty”.
A person does not have to prove their innocence in court, said the noble and learned Baroness, Lady Hale —I agree—and a person should not be required to prove their innocence when they apply for compensation after a miscarriage of justice has been established in the Court of Appeal.
As the noble and learned Lord, Lord Hope of Craighead, said this afternoon, the Government’s approach will inevitably mean that people who are in fact innocent will fail to obtain compensation for a wrongful conviction established in the Court of Appeal simply because they cannot prove—it is often very difficult and sometimes impossible to prove—that they did not commit the crime. The Minister said in his observations in reply that the Government’s test does not require an applicant to prove their innocence. That is precisely what the Government’s amendment does; that is precisely what is so objectionable.
I remain concerned not just about the principle; I remain very concerned about the practical consequences of the Government’s amendment. We are dealing here, as I said in opening, with the most sensitive, controversial cases in criminal law. The Court of Appeal will have allowed an appeal because the prosecution case has been fatally undermined. The defendant is released from prison. He or she may have been in prison for many years. Then, say the Government, the Secretary of State must pronounce on whether that applicant has proved that he or she did not in fact commit the crime.
Nothing is more likely to prolong the misery of the miscarriage of justice not just for the applicant but for the family of the victims of the crime, whoever committed it. Nothing is more likely to provoke further litigation. It has never been the role of a Secretary of State in our system of law to determine whether a person is innocent of an offence. I do not think that it is desirable that we should now make it the role of the Secretary of State to determine whether someone is innocent of an offence. I wish to test the opinion of the House.
Assisted Suicide
Lord Faulks Excerpts(10 years, 4 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I, too, am grateful to the noble Baroness, Lady Jay, for bringing this immensely important matter before your Lordships’ House.
It is inevitable that any debate on prosecution policy—which is essentially the subject of the debate—in this sensitive area will lead to discussion of the law itself. This evening’s debate has been no exception. Whatever view you take of the law, the Director of Public Prosecutions’ policy for prosecutors in cases of encouraging or assisting suicide has brought clarity to the practical operation of the existing law and has generally been welcomed. But it is clear that views on the desirability of legislative change remain deeply divided, as is apparent from this evening’s debate.
Encouraging or assisting suicide remains a criminal offence. The DPP’s assisted suicide policy does not seek to change the law—and cannot do so as that is clearly a change that only Parliament can make. Nor does the policy provide prospective blanket immunity from prosecution—a point made by the noble Lord, Lord Alton—as that is also beyond the powers of the DPP. The policy simply provides guidance to prosecutors on how to apply the law in force. I remind the House of the Government’s view—one expressed by others standing at the Dispatch Box in the past few years—that any change to the law in this area is a matter for Parliament to determine as an issue of individual conscience. In amending the Suicide Act by Section 59 of the Coroners and Justice Act 2009, Parliament confirmed that it should remain an offence to intentionally encourage or assist suicide or an attempted suicide.
Of course, a number of noble Lords have mentioned the Assisted Dying Bill introduced by the noble and learned Lord, Lord Falconer of Thoroton, in May 2013. That seeks to legalise in England and Wales assisted suicide for terminally ill mentally competent adults who are reasonably expected to die within six months. The Government will take a collective view on the noble and learned Lord’s Bill in order to respond to the debate on its specific provisions at, but not before, Second Reading. As things stand, however, no date has been set for Second Reading of the Bill.
As for the CPS, noble Lords will know that its primary role is to prosecute cases investigated by the police in England and Wales and to advise the police in serious or complex cases. As was helpfully described by the noble Lord, Lord Macdonald of River Glaven, the Director of Public Prosecutions has a statutory duty to issue a Code for Crown Prosecutors. The code provides guidance to prosecutors on the general principles to be applied when making decisions about prosecutions and sets out a two-stage test to be applied in all cases. First, is there sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge? Secondly, is it in the public interest to proceed with a prosecution? It is only when there is sufficient evidence to provide a realistic prospect of success that a case proceeds to the public interest stage of the test. It has never been the rule in this country that suspected criminal offences must automatically be the subject of prosecution since—as the noble Lord, Lord Macdonald, explained—the public interest must always be considered.
In addition, the DPP publishes guidance to prosecutors on particular types of cases. These must be read in conjunction with the code. The Policy for Prosecutors in Respect of Cases of Encouraging or Assisting Suicide is one of those documents. The guidance is intended to assist prosecutors in making decisions on individual cases by setting out in one place the relevant legislation, case law, court sentencing practice, internal operating procedure and any specific evidential and public interest factors to be taken into account. The DPP’s assisted suicide policy was published in its present form in February 2010. As the House knows, that followed the judgment of the House of Lords in the case of Debbie Purdy and a public consultation on an interim policy to which there were 4,700 responses. The circumstances in which the House of Lords in its last case came to its decision were touched on briefly by the noble and learned Lord, Lord Brown.
At the time of its publication, and indeed since, the final policy received broad approval. It is generally acknowledged to be a sensible balancing of the various important considerations that need to be taken into account. It sets out factors that may be relevant when deciding whether a prosecution for assisted suicide is in the public interest, including questions of mental capacity—a matter raised by the noble Baroness—in addition to those already outlined in the code. However, deciding on the public interest is not simply a matter of totting up the factors for or against prosecution and seeing which side has the greater number. Each case is considered on its own particular facts and circumstances. The assisted suicide policy is very clear on that. The prosecutor should make an evaluation in terms of the weight to be apportioned to those factors before deciding whether a prosecution will be in the public interest.
Among the public interest factors tending against prosecution are that,
“the victim had reached a voluntary, clear, settled and informed decision to commit suicide”,
and that the suspect was “wholly motivated by compassion”. This has been interpreted by some as meaning that the CPS will not prosecute those who help terminally ill relatives to die. That is not the case. As the policy makes clear, it does not in any way decriminalise the offence of encouraging or assisting suicide or give an assurance that any person or class of persons will be immune from prosecution.
One of the public interest factors tending in favour of prosecution is that,
“the suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional”.
This has been said by some to cause considerable difficulties for healthcare professionals because it is not clear what constitutes assistance. During the course of this debate, we heard several contributions from doctors. I have to say that, listening to the debate, I did not understand the noble Baronesses, Lady Finlay or Lady Hollins, to be suggesting that the matter of dying was not discussed. Indeed, I thought it was regularly discussed; the question was how you approached it.
The issue has given rise to a case, AM v DPP. The Court of Appeal, by a majority decision, including a dissenting judgment from the Lord Chief Justice, indicated that there might need to be some clarification of the policy, and the weight that the policy gives to the fact that a helper was acting in his capacity as a healthcare professional and the victim was in his care. The appeal was heard in December, and we await the Supreme Court’s judgment. I understand that it is likely to arrive in the next two or three weeks, although I cannot be emphatic about that.
My Lords, in exercising her discretion to decide whether to prosecute someone for encouraging or assisting suicide, the DPP is not doing anything new. Under the Suicide Act, there has always been a requirement for the director’s consent to a prosecution. In exercising that discretion, it has always been necessary to weigh up the public interest factors for and against prosecution on the facts of individual cases. Indeed the exercise of prosecutorial discretion applies to all criminal offences and long pre-dates the 1961 Act. The assisted suicide policy as a public document has clarified that process by informing the wider public how such decisions are made.
Noble Lords might want to know something about the statistics. Records show that from 1 April 2009 to 13 February 2014, 91 cases have been referred to the CPS by the police recorded as assisted suicide or euthanasia. Of those 91 cases, 65 were not proceeded with by the CPS, 13 were withdrawn by the police and there are currently eight ongoing cases. One case of attempted assisted suicide was successfully prosecuted in October 2013. The facts of the matter would not trouble anyone, whichever side of the argument they were on. It involved someone with lower mental capacity. Four cases were referred onwards for prosecution for murder or serious assault.
In exercising her discretion to decide whether to prosecute someone for encouraging or assisting suicide, the DPP is not doing anything new. Under the Suicide Act, there has always been a requirement for the director’s consent to a prosecution. In exercising that discretion, it has always been necessary to weigh up the public interest factors for and against prosecution on the facts of individual cases. The assisted suicide policy is a public document, which has provided some clarification for the process by informing the wider public how decisions are made.
The DPP’s guidance recognises that assisting suicide is a criminal offence. It clarifies how the discretion is exercised. Some would say that the deterrent effect of the present law combined with the compassionate exercise of prosecutorial discretion on a case by case basis, is a sensible balance in this very sensitive area. However, I freely acknowledge that strong views are expressed around the House and in the country about this matter. The fact that, looking back over Hansard, a number of contributors to tonight’s debate have expressed similar, although not identical, views before is in my view a strength. These matters do not disappear; they recur and will continue to do so. However, this debate, for which I thank all the contributors, has made a significant contribution to an issue which is difficult to resolve. Unfortunately, I cannot give any further guidance than what has been given by the Government before.
Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2014
Lord Faulks Excerpts(10 years, 4 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Faulks
That the Grand Committee do consider the Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2014.
Relevant document: 20th Report from the Joint Committee on Statutory Instruments.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, I beg to move that the Committee do consider the draft Access to Justice Act 1999 (Destination of Appeals) (Family Proceedings) Order 2014, the Justices’ Clerks and Assistants Rules 2014 and the Crime and Courts Act 2013 (Family Court: Consequential Provision) Order 2014.
As your Lordships may be aware, these statutory instruments are a significant part of a package of secondary legislation required to bring into being the new family court. Section 17 of the Crime and Courts Act 2013 provides for the creation of a single family court for England and Wales. This will replace the three separate tiers of court that deal with family proceedings. The High Court will still hear family proceedings, but the intention is that in practice it will hear only those matters reserved exclusively to the High Court.
The Committee will recall that the independent Family Justice Review recommended the setting up of a single family court as the current three-tier structure is complicated, inflexible and difficult for families and other court users to navigate. Parliament then passed a law creating such a single family court in the Crime and Courts Act 2013.
The new family court will be able to sit anywhere in England and Wales and all levels of magistrates and judges will be able to sit. This includes lay magistrates, district judges, circuit judges, High Court judges and above. This should enable more effective and efficient use of judicial resources and of court staff and buildings. These instruments will go a long way in ensuring that family proceedings, particularly those involving children, will be dealt with more efficiently, with delay being the exception.
When the new family court is implemented, the family proceedings courts will no longer exist and magistrates’ courts and the new single county court will not be able to hear family proceedings. However, as the family court can sit anywhere, it can sit in the county court or magistrates’ court buildings.
I turn to the destination of appeals order. The Matrimonial and Family Proceedings Act 1984 provides that if any party to proceedings in the family court is dissatisfied with the decision of the court, that party may appeal to the Court of Appeal. The Administration of Justice Act 1960 provides that if any party to proceedings in the family court is dissatisfied with a decision relating to contempt of court, that party may appeal to the Court of Appeal. The destination of appeals order aims to route appeals against the decisions of certain judges of the family court away from the Court of Appeal to the family court.
I will speak first about appeals against decisions in the family court, except those relating to contempt. The objective of this order is largely to enable replication of the current position whereby appeals from magistrates and of district judges do not go to the Court of Appeal. Rerouting appeals away from the Court of Appeal is not new. It is a well established principle that appeals should normally be heard at a lower level than the Court of Appeal. In the family court the intention is that they will be heard by a higher level of judge than the one who made the decision being appealed.
So the intention is that generally, for the single family court, the same judges will be hearing appeals as now, but they will be sitting as a family court judge, rather than as a county court judge or in the High Court. Subject to your Lordships’ approval, the effect of this instrument will be that appeals from a decision or order of the judges or officeholders listed in the order are routed away from the Court of Appeal to the family court.
For example, where there is an appeal against a decision of a bench of lay justices, or a district judge sitting in the family court, about which parent a child should live with, or whether a care order should be made in relation to a child, that appeal will be heard in the family court not the Court of Appeal. As I said earlier, this is not new. At present an appeal from the decision in family proceedings of lay justices or a district judge sitting in the magistrates’ court, or of a district judge sitting in a county court, is heard in a county court.
The level of judge that can deal with appeals routed to the family court by the destination order will be set out in a different statutory instrument under Section 31D of the Matrimonial and Family Proceedings Act 1984. It will be made by the Lord Chief Justice, or his nominated officer, after consultation with the Family Procedure Rule Committee and with the agreement of the Lord Chancellor. That instrument is not yet before Parliament, but I can reassure noble Lords that the plan is for appeals in the family court to be heard by a circuit judge, as now. However, there will be greater flexibility to ensure that judicial resources are used more efficiently and that the appeal is heard at an appropriate level. For example, there will be provision for a judge of High Court level sitting in the family court to be able to hear an appeal which would otherwise be heard by a circuit judge, where a designated family judge or a judge of High Court level considers that the appeal would raise an important point of principle or practice.
Noble Lords may have also noted that this order makes provision for decisions of certain tribunal judges and court martial judges to be routed away from the Court of Appeal. I should explain that this provision seeks to future-proof the legislation. These judges cannot currently hear family proceedings, but the Crime and Courts Act 2013 provides for more flexible deployment of the judiciary to make efficient use of resources. It provides for tribunal and court martial judges to be judges in the criminal, civil and family courts and for the judges of those courts to be tribunal judges. Although there is no immediate intention to deploy these judges in the family court, they are in fact judges of the family court. It would not be appropriate for appeals against the decisions of those tribunal and court martial judges listed in the draft destination order to go to the Court of Appeal, so this order routes appeals against any decision which they may make in the family court away from the Court of Appeal to the family court.
In addition, appeals against decisions by deputy district judges and justices’ clerks will be routed away from the Court of Appeal to the family court and be dealt with by a circuit judge sitting in the family court. Appeals from decisions of judges of the family court which are not listed in the destination order will go to the Court of Appeal. For example, an appeal from the decision of a circuit judge, or of a High Court judge sitting in the family court, will go to the Court of Appeal.
The provisions of the Destination of Appeals Order 2011 which relate to routes of appeal to a judge of a county court or to decisions of the Principal Registry of the Family Division when it is treated as a county court or care centre are revoked. The remaining provisions of the 2011 order are needed for the High Court hearing family proceedings.
I turn briefly to appeals against decisions relating to contempt. Currently the route of appeal for decisions concerning contempt of court is complex. The draft order we are considering today simplifies the routes of appeal so that appeals against such decisions will follow the same route as appeals against other decisions of the family court. The Crime and Courts Act 2013 enabled us to do this so that the process is streamlined and more transparent.
I now turn to the draft Justices’ Clerks and Assistants Rules, known together as the Justices’ Clerks Rules. The Crime and Courts Act 2013 provides for justices’ clerks and their assistants to give legal advice to lay judges of the family court—as they currently do in family proceedings courts—and allows for rules to set out where they may perform functions of the family court or of a judge of the court.
Primary legislation already exists that allows for justices’ clerks and their assistants to provide legal advice and assistance in the magistrates’ courts for criminal and family proceedings, and to perform functions of the court. Existing rules made under that legislation specify which functions they can perform. For the new family court, new rules are needed to specify the functions of the family court or of judges of the court which justices’ clerks and their assistants will be authorised to carry out.
During the passage of the Bill this House expressed some concern about which functions justices’ clerks would be able to perform in the new family court. I think that the noble Lord, Lord Beecham, put down an amendment at some stage which concerned this issue. I reassure the Committee that the draft rules being considered today have been agreed by the President of the Family Division as the Lord Chief Justice’s nominee, and were developed in close consultation with the Family Procedure Rule Committee. My noble friend Lord McNally gave an indication of our plans to the House on Report, and these draft rules reflect those plans. Therefore the draft rules allow justices’ clerks to continue to perform broadly the same functions as they currently do in family proceedings courts.
However, as previously explained to the House, they will be able to perform those functions in cases allocated to any level of judge of the family court rather than just when a case is allocated to lay magistrates, which provides greater flexibility. Therefore justices’ clerks will be able to assist in progressing cases, freeing up judges to deal with the more complex parts of the case. This should increase the efficiency of the family court and help reduce delay—something that we know can adversely affect cases with children involved.
These rules will also allow justices’ clerks to perform some functions for the first time. For example, these rules will allow a justices’ clerk to perform certain functions in undefended divorce or separation cases. These cases are relatively straightforward, but because of the volume of applications they take up a significant amount of district judges’ time. Allowing justices’ clerks to perform these functions will allow judges more time to deal with more complex matters. However, I stress that justices’ clerks will not be able to deal with any case where the application for divorce or other order is defended. These will continue to be dealt with by judges of the family court.
The draft rules also provide for assistant justices’ clerks, as now, to be able to perform functions when authorised by a justices’ clerk. In all cases, justices’ clerks and their assistants are subject to a duty to refer matters back to the court if, when considering carrying out an authorised function, they consider that it would be inappropriate for them to carry out that function. This is a duty to which justices’ clerks and their assistants are currently subject in the existing rules, so it is replicated in these draft rules.
I emphasise that although justices’ clerks and assistant justices’ clerks are employed by Her Majesty’s Courts and Tribunals Service, they are not subject to the direction of the Lord Chancellor or any other person when carrying out the functions set out in these rules or when giving legal advice or assistance to lay judges of the family court. They act independently, just as a judge would.
These rules largely replicate the functions that justices’ clerks can currently carry out for the court. They have been carefully considered by the members of the Family Procedure Rule Committee, and the president of the Family Division, who has agreed them. The rules will allow the extensive knowledge, skills and experience of justices’ clerks to be used, over time, to free up judges to deal with more complex cases and to improve the efficiency of the courts. I would further expect this to reduce delay and provide an improved service for families who need to use the new family court.
Finally, I will consider the Crime and Courts Act 2013 (Family Court: Consequential Provision) Order which makes amendments to primary legislation required because of the creation of the new family court. Already a number of changes to primary legislation in the Crime and Courts Act 2013 are required because of the creation of the new family court. However, as is often the case with a change as complex as the creation of the family court, further changes to primary legislation are required to ensure the family court can operate effectively. Section 59 of the 2013 Act gives a power to make provision in consequence of the 2013 Act. This order will be made under that power and provides for various amendments to primary legislation which are needed as a consequence of the setting up of the single family court. It mainly replaces references in primary legislation to magistrates’ courts and county courts with references to the family court, as the magistrates' courts and county courts will no longer be able to hear family proceedings when the new family court is commenced.
The amendments to primary legislation set out in the order are required to ensure that the family court can deal with matters such as the enforcement of maintenance orders, which currently are often dealt with in magistrates’ courts but in future will be dealt with in the family court. The order also removes references to matters which will no longer be dealt with in magistrates’ courts. It will enable legal aid payments to be paid for advocacy in the family court, in circumstances to be specified in legal aid legislation. It also makes other amendments to primary legislation to ensure that the family court can deal with all the matters that it needs to, such as an application from a creditor in relation to a judgment debt, for information about what enforcement action to take to recover that debt.
The instruments presented today will enable the creation of a new family court that will be able to operate more effectively and efficiently, and provide an improved service to the families who need to use the court. The creation of a simpler court structure should make it easier for those who need to use the courts to do so. They will no longer have to work out to which tier of court to submit their application. Instead they will just submit it to the family court in their area and it will be allocated to the appropriate level of judge. Cases will no longer need to be transferred between the old tiers of court. Court users should experience a more streamlined and efficient service with a significant reduction in delays. These measures, together with others, will give the judiciary, working together with Her Majesty’s Courts and Tribunals Service, greater flexibility and allow it to respond to differences in demand to ensure the most efficient use of judicial and court resources.
I hope that noble Lords will feel able to approve these draft instruments so that the benefits of the single family court can be achieved. I therefore commend these draft orders to the Committee and I beg to move.
Lord Jones (Lab)
My Lords, I thank the Minister for his pithy and customarily helpful remarks. My questions stem from the most honourable tradition of asking questions in a Parliament to a Minister. Will he give specific reasons why the Government have resolved to end the interests of magistrates’ courts and county courts in these courts? That question is linked to another: shall we truly have more flexible and more efficient family courts? What were the magistrates’ courts doing wrong and what were their shortcomings? Why has it been resolved to end the historic relevance of the magistrates’ court with its three citizens? What insights have informed these decisions? Can we be absolutely assured that in the new arrangements the primacy of the interests of the child will be always borne in mind? Is that a reason for this large change? Surely we can raise this matter in this Committee and surely it has always informed Ministers and those who advise them.
Lord Faulks
I am very grateful to the noble Lord, Lord Jones, for his contribution to the debate, and to the noble Lord, Lord Beecham, for his observations.
The central question behind the speech given by the noble Lord, Lord Jones, was, “Why do we need this reorganisation of a family court, and why ignore the experience there was in the magistrates’ court?”, and that we should take into account in particular the convenience for local people to use their magistrates’ court. I quite understand that concern. However, as the noble Lord, Lord Beecham, quite rightly said, we will not lose that expertise. Magistrates will still deal with family proceedings, but within the overall context of a family court. Previously we had these various tiers, but now we have a unified court. However, they will all be the family court, albeit some will sit in magistrates’ courts, some in county courts and others will physically sit in the High Court, depending on the allocation and the level of the dispute. So that much-valued expertise will not be lost. What is intended, as I indicated in my opening remarks, is that there should be increased flexibility and a better use of appropriate judicial resources. I am not sure that those qualified lawyers who act as justices’ clerks would welcome being described as a lower level of judge, as the noble Lord, Lord Beecham, described them. They are very often qualified and, if not qualified, have a considerable amount of relevant experience, and they will not be given any tasks that they are performing now and will perform in future unless it is clear that they have relevant experience and expertise.
The creation of the family court was recommended by the family justice review. It was considered that the new structure would limit delays and simplify the whole question of people who go to their local area with a particular issue, which will then be allocated to the appropriate level of court. It will not be the enemy of localism, which I think was the concern expressed by the noble Lord, Lord Jones.
Lord Jones
Will the Minister write on those questions that he may not be able to field, such as the ones that I have posed?
Lord Faulks
Yes, I will certainly write in so far as I do not answer all the issues raised by the noble Lords, Lord Jones and Lord Beecham. I fear that I will not be able to answer all the points, but I hope that I can at least reassure the noble Lord that the magistracy will still be involved in the matter, as it was before, and will not lose its expertise—it will simply be called something different. There is some reallocation of its tasks, but not a loss of its important role.
The closure of courts generally is a different issue from that which we are considering. There are always difficult arguments on the cost of having a court that is infrequently used as against the convenience for local people. We are of course anxious that the quality of decision-making should be high and that there should be convenience, and we do not anticipate that there will be a radical change in individual cases. The noble Lord mentioned the position in Llanelli, where he feared that there would not be enough local expertise. I am assured that there would not be a radical transfer unless the court service was satisfied that there was the appropriate level of expertise in a local area.
I turn to issues raised by the noble Lord, Lord Beecham. He said that he was concerned that there had not yet been a specific route for the appeals identified. I indicated in the course of my remarks that they would be set out in a statutory instrument under Section 31D of the Matrimonial and Family Proceedings Act 1984, which would be made by the Lord Chief Justice or his nominated officer after consultation with the Family Procedure Rule Committee and with the agreement of the Lord Chancellor. The rules are made with the consultation of the committee, which includes expert practitioners, justices’ clerks and judges. It also includes a representative of the court users, so it should be possible before the appropriate tier of appeal is finalised for all interested parties to have an opportunity to have their views reflected in the designation. Although I understand the noble Lord’s anxiety, it is unlikely that he will find the organisation of appeals in any sense out of sync with the construction of appeals that exist generally in civil procedure—that is, there will be an appeal from a court to a higher level of court and, depending on where the initial allocation begins, a superior court will then come to consider the relevant appeal.
The noble Lord, Lord Jones, asked a question about the consultation with the Magistrates’ Association, which was very helpfully answered by the noble Lord, Lord Beecham, who was able to confirm that it had been consulted. The statutory obligation was to consult the family practitioners’ rules committee, which comprises representatives of the lay magistracy, justices’ clerks and a number of judges, so it would have been included in any event in that consultation.
The noble Lord, Lord Beecham, asked about payments to charity. I am told that the amendment to Section 194 of the Legal Services Act 2007 will mean that the family court will be able to order a party to make a payment to a charity. This mirrors the current position in the civil courts and applies where a party has been represented free of charge. It will be for the court in the individual case to determine to which charity the payment should be made. I hope that that answers that point. The noble Lord also made a point about the increase in costs and the fees for divorce going up. Yes, if it is dealt with at a lower level then I understand his point about that. A final decision has not yet been made on whether to increase the fees for divorce, although this matter was consulted on. I will certainly take back his observations.
Perhaps I have not quite sufficiently answered the question about the general sufficiency of the numbers of justices’ clerks. It is actually the case that the assistant justices’ clerks will be doing most of the work in courts. There are about 1,400 of them and the justices’ clerks are managers, so there is one in each area. There are 26. Her Majesty’s Courts and Tribunals Service has assured Ministers that there will be sufficient justices’ clerks to perform the various functions which they are able to do as a result of this designation.
I think that I have answered most of the questions—no, I have not.
Lord Beecham
There is just the question of interest, upon which the Minister might care to write to me. I presume that he has not been briefed on that yet by those behind him.
Lord Faulks
The position is that I cannot give an answer, I am disappointed to say, but we will definitely write on that issue. I hope that the noble Lord will be satisfied with the answer.
I am grateful for the helpful questions from noble Lords and, notwithstanding the reservations in the points that have been helpfully made, I hope that your Lordships will agree that these draft instruments are an important step in simplifying the family court system and making it more accessible to families.
Crime and Courts Act 2013 (Family Court: Consequential Provision) Order 2014
Lord Faulks Excerpts(10 years, 4 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Faulks
That the Grand Committee do consider the Crime and Courts Act 2013 (Family Court: Consequential Provision) Order 2014.
Relevant document: 20th Report from the Joint Committee on Statutory Instruments.
Justices’ Clerks and Assistants Rules 2014
Lord Faulks Excerpts(10 years, 4 months ago)
Grand CommitteeRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Faulks
That the Grand Committee do consider the Justices’ Clerks and Assistants Rules 2014.
Relevant document: 20th Report from the Joint Committee on Statutory Instruments.