Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 14) Order 2019

Lord Keen of Elie Excerpts

Tuesday 11th February 2020 Grand Committee

Moved by

[Lord Keen of Elie]

That the Grand Committee do consider the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 14) Order 2019.

Relevant document: 3rd Report from the Secondary Legislation Scrutiny Committee, Session 2019 (special attention drawn to the instrument)

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I begin with a short apology for the delay in commencing. The purpose of this draft instrument is to enable the Secretary of State to make the alcohol abstinence and monitoring requirement available across England and Wales.

This legislation gives the court a new tool directly to address alcohol-related offending. As part of a community sentence, judges and magistrates will be able to impose a ban on drinking alcohol for up to 120 days, and we will monitor this using continuous electronic monitoring, which is referred to as alcohol tagging. I am grateful for the comments made by the Lords Secondary Legislation Scrutiny Committee and intend to address them below and in the course of this debate.

Alcohol-fuelled crimes put a huge strain on front-line services. Problematic alcohol consumption is associated with crime, particularly heavy or binge drinking and violent crime. The latest published figures from the Crime Survey for England and Wales, in 2018, estimated that in 39% of violent incidents the victim believed the offender to be under the influence of alcohol. Alcohol-related crime is estimated to cost the taxpayer up to £13 billion per year. Public Health England estimates that the total social and economic cost of alcohol-related harm was £21.5 billion in 2018.

AAMRs have a punitive effect on offenders by restricting their ability to drink alcohol while the requirement is in force. In addition, the pilots have shown us the potential of this measure to address the purposes of sentencing more widely. Where the criminal behaviour is driven by alcohol, an alcohol ban has the potential to reduce crime and provide the opportunity for reform and rehabilitation. Through enforcing abstinence, AAMRs are designed to mitigate offending behaviour which is driven by alcohol. Where alcohol is driving or triggering criminal behaviour, the AAMR will interrupt it and should give individuals and communities a break, reduce the number of victims, protect the public and save the costs of dealing with the crimes.

The monitoring will be continuous and delivered via electronic ankle tags, providing assurance with compliance. If alcohol is detected, or attempts are made to avoid the monitoring, the offender can be returned to court. These requirements may not be imposed on dependent drinkers or alongside an alcohol treatment requirement. They are only for adult offenders.

Harnessing innovative technologies such as alcohol tags can not only punish offenders but help turn their lives around. This legislation plays an important role in a wider package of reforms of community penalties that the Government plan to bring forward in due course, which will ensure that community sentences can offer an appropriate level of punishment while effectively tackling underlying drivers of offending.

The alcohol abstinence and monitoring requirement was introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. This legislation creates a new requirement within the Criminal Justice Act 2003 that can be used where a community order or suspended sentence order is imposed. The 2012 legislation requires the order to be piloted before it can be rolled out. This requirement has been met. There have been two pilot schemes: one in London, initiated by the Prime Minister when he was mayor, and the other in Humberside, Lincolnshire and North Yorkshire. These pilots have shown us that this new measure will be welcomed by criminal justice partners.

The two AAMR pilots were run respectively by the Mayor’s Office for Policing and Crime in London, and by the police and crime commissioners and the Humberside, Lincolnshire & North Yorkshire Community Rehabilitation Company. I appreciate that the absence of published findings was criticised by the Lords Secondary Legislation Scrutiny Committee. I am pleased to say that findings from the pilot in the north-east have now been published and I am happy to be able to highlight some of them during this debate. Some 1,500 orders were imposed during the pilots.

The pilots had significant differences in how they were run, but the compliance rates are very similar, which gives us confidence in the utility of this measure. Compliance was very high indeed—the figure for the requirement itself was 94% for both pilots; and for abstinence from alcohol it was 98% in the London pilot and 97.4% in the Humberside pilot. That is the percentage of monitored days that were free from both alcohol and interference with the equipment. There was significant use of the order in the sentencing of violent offences in the pilots. In London, 45% of requirements were for violent offences, and in the north-east 31% were for domestic abuse offences.

This measure is welcomed by those on the front line. Indeed, as the Humberside police and crime commissioner Keith Hunter said:

“The period in which the offender is tagged will give rehabilitation agencies a real opportunity to work with the individual and get them to recognise and change their behaviour, hopefully for good. I would like to see these orders available nationally as a standard feature of the Criminal Justice System.”


Sentencers in the London pilot were frustrated that they were unable to impose the order on offenders who fell outside the pilot area.

Reports from the pilots demonstrate that offenders also recognised benefits. They were generally optimistic about the requirement and felt that it had a positive impact on their lives, particularly around their health, well-being and offending behaviour. In the north-east, 81% of those surveyed at the end of the requirement reported that they thought they would drink less or no alcohol when the tag was removed.

The scrutiny committee commented on a lack of information about rollout of the new measure. We plan to begin the introduction of the order later this year. Our intention is to take a similar approach to that used for the successful rollout of location monitoring and so avoid disruption to the core electronic monitoring service. We will balance an incremental rollout that allows us to respond to learning from early deployments and further findings from the pilots if necessary, alongside opportunities to prepare stakeholders and inform decision-makers appropriately, with ensuring that the tool is available across England and Wales as quickly as possible. We estimate that when the requirement is fully rolled out and in use nationally, in around 2023-24, some 2,300 people will be sentenced to these orders each year. This will mean that approximately 400 orders will be active at any given point in time.

The order’s requirement imposes an alcohol ban of up to 120 days, while continuous monitoring provides assurance regarding compliance with the sentence of the court. We believe that the introduction of this measure strengthens the community sentence response to alcohol-related offending and is a powerful message that we are tackling this issue. We should not lose time in introducing a new measure which means that our courts can directly address a driver of crime and stop the drinking of those who cause misery, damage and fear by their behaviour, for up to four months. We strongly believe it is in the public interest to introduce this measure. I beg to move.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, there is widespread agreement that a great deal of crime is related to and fuelled by alcohol. Indeed, Members of your Lordships’ House have been saying for many years, in debate after debate, that much offending in this country is related to excess alcohol and drug abuse, so the passage of Section 76 of the LASPO Act was unsurprising. There is also widespread agreement that we all should support measures to reduce the consumption of alcohol in relation to crime, and thus alcohol-related crime.

The alcohol abstinence and monitoring requirements, which I shall call simply alcohol monitoring requirements, use electronic tagging technology to ensure that offenders reduce or eliminate alcohol consumption for a period. The essential elements for the application of Section 76 of the LASPO Act are: first, that the offences concerned are alcohol-related; secondly, that during the period of the order the offender will take no alcohol, or alcohol reduced to a specified level; thirdly, that the consumption of alcohol will be electronically tagged; fourthly, that the period of the requirement will not exceed 120 days; fifthly, that it can be imposed only together with a community order or suspended sentence; and finally, that a breach of the requirement is punishable by a sentence for that breach.

The Committee has heard from the Minister that there have been two pilots. The London pilot ran from 2014 to June 2018, while the Humber, Lincoln and North Yorkshire pilot—which I shall call the northern pilot—ran from after the 2017 election until April last year. There were different methodologies. The London requirements were imposed on a stand-alone basis, whereas the northern pilot imposed the orders together with community orders, while monitoring and fitting of the tag was carried out by probation staff. In addition, the northern pilot included domestic abuse offenders whereas the London pilot did not.

The only question that warrants the Committee’s attention at this stage is whether enough evidence has been gleaned from the two pilots that alcohol monitoring requirements are or will be effective to justify Parliament’s commencing the section now and rolling out alcohol monitoring requirements. Your Lordships’ Secondary Legislation Scrutiny Committee clearly concluded that there was not. Central to its view was that the results of the northern pilot had not been published, although we have heard from the Minister that they have been now; that was predicted for this month. But published or not, it follows from their recent nature that the results cannot have been publicly evaluated.

The Ministry of Justice sought to justify its position in its Explanatory Memorandum at paragraph 7.3, which bears reading because, I suggest, it is unconvincing. It says that the evaluation of the northern pilot

“is not due until February 2020 but sufficient learning has been shared with the department, through ongoing involvement with the pilot and its evaluation, to indicate findings consistent with, and complementary to”,

the London pilot, and that:

“In addition, the department conducted a proof of concept for using the alcohol monitoring technology for suitable offenders released on licence. This has provided considerable insight into how alcohol monitoring can support the management of risk and rehabilitation. On this basis, we consider that we have a good evidence base around the utility and practice”


of alcohol-monitoring requirements

“which has informed our plans for England and Wales roll-out.”

What the Ministry could not assess was the impact of alcohol monitoring requirements on reoffending. Indeed, paragraph 29 of the committee’s report quoted the department’s response to Questions. It said:

“Reoffending findings will be available well in advance of commencing roll out and will inform the delivery of AAMR. However, it is our view that the findings we already have from the”


pilots

“indicate that AAMR is an effective sentence option. It is the department’s intention to assess impacts much more substantially, including to inform the better targeting of resources to address alcohol harms, when we roll out AAMR.”

The reality is that assessing the effect on reoffending will have to await medium-term evaluation of the behaviour of offenders who have been placed under these monitoring requirements. The Government appear to have accepted that in their impact assessment.

--- Later in debate ---

[Lord Keen of Elie]

I am grateful to noble Lords for their contributions to this debate. I will address a number of the points that have been raised. First, the results of the second pilot in Humberside were known to the ministry as it brought forward this order. The results have now been published and they are quite compelling. We are talking about a compliance rate well over 90% in both pilots. Indeed, it was 98% in the case of the London pilot and 97.4% in respect of Humberside. They were carried out over different periods and applied in the context of different offences. That gave us a spectrum of results, but all were very encouraging. Of course, we should consider not only the immediate importance and impact of the orders—because they stop people taking alcohol for a period of up to 120 days—we should like to be informed whether there is an ongoing impact. In the Humberside pilot, about 81% of those who had undergone such an order were contemplating either stopping taking alcohol or reducing their alcohol intake at the end of the period. It was clearly having an impact, therefore, on people’s intentions—but they were only intentions, of course.

As regards reoffending, it will take time to go through that process. As the noble Lord, Lord Marks, himself said, that is something for the middle term, not something we can immediately analyse. As the noble Baroness, Lady Chakrabarti, said, the primary legislation was enacted in 2012. The pilots were completed only last year. For how many more years are we to analyse the data before we commit to rolling out what appears on the face of it, and on the basis of the pilots already carried out, to be a very successful programme?

On the issue of resuming alcohol consumption, raised by the noble Lord, Lord Marks, yes, that is always a risk, but there are two benefits. First, there is the immediate benefit of taking someone off alcohol for a period after they have committed an offence, one that may well have been induced by excessive alcohol consumption. Secondly, there is the potential for them to learn from the experience that they do not wish to imbibe alcohol to excess in future, in order to modify their behaviour. However, I accept that you cannot guarantee that.

The noble Lord, Lord Beecham, raised the question of medical assistance. Let me be clear: an order of this kind will not be made where an individual is alcohol dependent. It is difficult to see how you could bring in and use doctors in the context of someone who is not alcohol dependent but is being taken off alcohol for 120 days because of a violent crime committed under the influence of alcohol. I find it difficult to understand what their contribution would be. On the other hand, in cases where someone is alcohol dependent, provision is made through the Community Sentence Treatment Requirement Programme for Health and Justice partners to work together to deal with such dependency, be it on alcohol or drugs.

At the end of the day, we have to bear in mind that we intend to roll out this programme on the basis of the probation areas, so we will learn even as we roll out the programme between now and 2023 how effective it is being. But we have already seen the results of the original pilots, and I suggest that they really are impressive. In the circumstances, we consider that now is the time for us to respond to the issue of alcohol-related offending and alcohol-related violent crime by taking the steps proposed in the order. It is in these circumstances that I commend the draft instrument—

[Lord Marks of Henley-on-Thames]

My Lords, before the noble and learned Lord sits down, is it intended that the alcohol monitoring requirements be imposed as a generality in the first stages of the rollout, together with rehabilitative requirements, so that the probation service will be involved, or is the stand-alone imposition of alcohol monitoring requirements likely, as in the London programme? It seems to me that there may be a substantial difference in the effect on future behaviour.

[Lord Keen of Elie]

My understanding is that the monitoring will not be carried out by or related to the probation service; it will be carried out independently. But clearly, the justice system will have an overall picture because, where someone is in breach of the order, that individual will be brought back to court.

May I just clarify a point I made earlier? The period 2023-24 is when we intend to reach steady state and to have completed the rollout. The rollout itself is intended to take place over the next 12 months. I hope that assists noble Lords.

[Lord Beecham]

What does the Minister envisage the role of the probation service to be under this new arrangement?

[Lord Keen of Elie]

Clearly, probation staff will have access to the monitoring data and will therefore use it to inform their supervision of individuals who are under licence, for example.

[Lord Beecham]

Has the matter been discussed with the probation service, and does it have the resources to do this? It is very stretched, and this will be an additional responsibility, presumably. The question therefore arises: can it meet it?

[Lord Keen of Elie]

There is no suggestion that it will not have the resources to address this matter. It will receive data in circumstances where there will be some 400 active monitoring requirements at any one time. That, I respectfully suggest, is not an overwhelming imposition in addition to the demands made upon the probation service.

Motion agreed.