Crime and Courts Bill [HL]

Debate between Lord Lloyd of Berwick and Baroness Linklater of Butterstone

Tuesday 30th October 2012 Lords Chamber

[Baroness Linklater of Butterstone]

My Lords, there have been some very important contributions to this debate. I have agreed with pretty well every word. I therefore ask the House to forgive me if there is some repetition of what has been said.

We must be clear about what we want from the courts in terms of community sentencing and what we expect from those who deliver sentences. Above all, we must be clear about the values that inform the process. In introducing himself and the Government’s proposals, Chris Grayling announced that he is going to be a “tough Justice Secretary” because he believes that greater toughness and more punishment is what the people of this country need and want. I wonder. A lot depends on interpretation and what is meant by and expected from this new emphasis on punishment as an additional element in all community sentences. I question whether what he is proposing will indeed be a positive way forward.

The greatest proportion of all those coming before the courts receive community sentences, which have already proved to be significantly more effective than prison in reducing reoffending by more than 8.4%. Of course, they could and indeed should be still more effective, focused and robust, particularly if better resourced, and I hope that the Government will do just that. Like others, I pay tribute to the probation service in particular for its role in providing an infrastructure and effective programmes with experience and skill all around the country.

The purposes of sentencing as set out in the Criminal Justice Act 2003 and revised in 2007 remain, I assume, the agreed framework. Very importantly, the five elements are interdependent and must be applied in equal measure. They are: reparation, rehabilitation, punishment, crime reduction and public protection. However, the Government want to alter this balance and prioritise punishment, assuming that the sanctions currently available are in some way too soft. This also begs the question of why some people break the law, whether those involved in low-level reoffending are thinking of potential sanctions they might face if they are caught, and whether punishment per se will have a significant effect anyway.

The Government say that they want more punishment in every order and that this would generally mean,

“restrictions of liberty that represent to the public a recognisable sanction”.

As has been said, these are curfews, exclusion or community payback. The Government also say that,

“what is punitive for one offender … will not necessarily be punitive for another”,

recognising that all disposals must be relevant to the individual offender. Clearly, community sentences should challenge in ways that will effect change, especially in reoffending, and the public need to be confident that this is happening. However, typically the needs of such offenders are significant, particularly in terms of mental health, lack of education and school exclusion, low IQ, domestic violence, unemployment, homelessness et cetera. Unless the sanctions of community sentences take these into account and support needs are met, they are bound to fail.

It is unhelpful and misleading to attempt to separate the punitive and non-punitive elements of an order. This is because they are interconnected, and the chances of breach and reoffending are high if this is ignored. It also risks—as we have heard it so eloquently put by my noble hero—constraining judges and magistrates, who must take into account the individual offender’s circumstances as well as the offence. I suggest that successfully preventing reoffending matters more than being punitive for its own sake and should remain the ultimate goal of sentencing.

The National Institute of Economic and Social Research has done some very interesting work for the MoJ on punitive sanctions and found that unpaid work alone—that is, a “punitive requirement”—had no impact at all. It found that a lot depends on the needs of the offender, and the best chances of punishment having some effect are when it is added to supervision and a programme. This indicates more clearly than ever that punishment has an effective place in the sentencing armoury only in combination with other interventions relevant to the individual. I urge the Government and my noble friend, when he is in his place, to look closely at their own good research on the place of punishment in what they hope to achieve in reducing reoffending.

The Government are quite rightly concerned about public confidence and the confidence of the courts in the effectiveness of community-based sentencing. This hinges on a combination of knowledge, understanding and experience and, where community sentencing is concerned, a great deal more is required. Community justice is an area where public confidence is not high because so little is generally known of the reality of sentences and community sanctions. This is hardly surprising because they do not take place in a public arena and you cannot see or hear what a curfew or an exclusion order or tagging entails. Even community payback is rarely publicly visible either, let alone the reality of specific programmes for drug or alcohol abuse, mental illness et cetera.

An extremely effective programme run by the Magistrates’ Association in conjunction with the probation service, Local Crime Community Sentence, aims precisely to close this gap in awareness and knowledge of how the whole process works by taking audiences through real cases and making them act as sentencers. The resulting growth in understanding and confidence in the process on the part of participants is palpable and measurable. We need much more of this kind of initiative and much more information.

Another piece of important work recently carried out by Victim Support and Make Justice Work—mentioned by the noble Baroness, Lady Hamwee—has demonstrated how much the public, especially the victims of crime, want to have more information at every stage of the criminal justice process. They want to be involved by having their views heard and then being kept in the loop with the outcomes of sentencing. Crucially, the overriding response from victims, as we have already heard, is the need to be reassured that what they have experienced never happens again to anyone. This is a far stronger feeling than any retributive response, which the Government should heed. Victims want to know, too, what community penalties consist of, and so they should. I believe that, if they did, they would be encouraged by much of what they found and thus be more confident. Their voice must be heard and the Government must have ears to hear. The Government should develop more programmes and information dissemination to make these realities more visible and available to victims in particular.

This need extends to sentencers, too. As chair of Rethinking Crime and Punishment, I saw the effect of visits that we arranged for judges and magistrates to programmes available to them in their area to see work being done by the probation service and local voluntary agencies. It was like an epiphany to many, because judges do not normally get out and about that much to make such visits. Sentencers must know more about the disposals available to them. Magistrates, too, no longer have basic travel expenses paid for such visits and have difficulty in many areas staying in touch with local provision. There is no substitute for first-hand visits and discussion. “I never knew it was like that”, was often the refrain after these visits. I hope that the Government, with their enthusiasm for community penalties, will look again and restore this very modest but potentially transformative practical support.

Finally, I shall say a quick word on restorative justice. The proposal that it should be readily available to the courts, victims and offenders is an enormously important move. It represents the embodiment of the same principles of effective justice that I have already discussed—namely awareness, knowledge, understanding and meaningful engagement with the participants, particularly victims. I have supported these principles and the work of the Restorative Justice Council for years. I welcome these proposals as having the best possible potential for enabling positive outcomes following the damage of crime.

My caveat is that it will take a great deal of time and large investment to provide adequate numbers of suitably trained and accredited facilitators, who are key to the process. Sentencers who would be initiating the process currently have no established tradition in the use of RJ. They would need training as well as convincing. The whole process will be extremely complex and expensive, and it will be vital to ensure that the quality of delivery is of the best and not rolled out in a piecemeal fashion. It would be a disaster if expectations were raised without adequate quality delivery. That would destroy confidence and set the programme back for a long time. The Government must clarify not only how much they are planning to invest in training, promoting and delivery but the estimated timescale for the rollout of RJ. I cannot imagine that it will become widely let alone generally available for some considerable time, even with the expert advice and support of the Restorative Justice Council and other agencies. I look forward to hearing the Minister’s reply.

Positive change does not happen through negative strategies. Punishment will fail unless it is married to positive strategies geared to the needs of each individual —victim and offender alike. The research confirms this. I urge that that should be our goal.

[Lord Lloyd of Berwick]

I support the amendment moved by the noble Lord, Lord Ramsbotham. I had not intended to speak so will do so briefly.

I particularly wanted to say how much I agreed with the speech made by the noble Lord, Lord Rosser. What we are engaged on here is taking another step down what has become, recently and most unfortunately, a well-trodden path: you create a new offence carrying a mandatory sentence; you then allow the court not to impose the sentence if there are exceptional circumstances that would make it unjust to do so. My first observation on that, of course, is that it is a complete misuse of the word mandatory. The word mandatory should be confined to cases that are really mandatory, like the mandatory sentence of life imprisonment. However, there is a worse objection. It seems to me that it creates confusion. Of course, it has every advantage from the Government’s point of view, because it enables them to say that they are being tough on crime. At the same time, however, they can say that they are not leaning on the judges—oh no, no—to impose a sentence that they would not otherwise impose since courts never impose a sentence that they do not regard as just. That point was made very eloquently by the noble and learned Lord, Lord Woolf.

The Minister must say in reply which of the two ways he intends to have it. What do the Government really mean? What do they really want? In legislation, especially in criminal matters, clarity is of the first importance. Absence of clarity, such as I think one will find in the working of Part 1 of the schedule, has bedevilled criminal legislation, especially in the area of sentencing, in recent years.

Legal Aid, Sentencing and Punishment of Offenders Bill

Debate between Lord Lloyd of Berwick and Baroness Linklater of Butterstone

Wednesday 15th February 2012 Lords Chamber

[Baroness Linklater of Butterstone]

My Lords, I shall speak to Amendments 186 and 187 which relate to Clause 128, which seeks to extend mandatory prison sentences to children under 18 who carry or threaten with a knife, except in exceptional circumstances.

There are two main underlying questions here which must be addressed. The first is whether mandatory prison sentences for children are the proper tool for sentencers in terms of proportionality or appropriateness. The second is what are the likely outcomes of such a proposal. For example: will these sanctions actually deter children who carry knives from carrying them; will imprisonment today prevent further knife carrying tomorrow; will our streets be significantly safer in the future; or will they help to address the issues which lead children to carry knives in the first place?

Mandatory sentencing for certain types of offence for children is, to quote the Justice Secretary,

“a bit of a leap for the British judicial system”,

a remark that has more than a touch of irony in it. The essence of appropriate, proportionate, constructive sentencing, particularly where children are concerned, is the ability of the sentencer to look at all the circumstances which lead a child to offend in a particular way, and in this specific context mandatory sentences would seem to run contrary to good sentencing practice. Furthermore, when sentencers are considering their decision in such cases, deterrence is not one of the statutory purposes of sentencing for juvenile offenders under the Criminal Justice Act 2003.

However, it should give comfort to an anxious public that sentencers in fact already have powers to imprison children convicted of carrying a knife in a public place for a maximum of two years. The point at issue here is that the crucial change this clause would make is to remove the discretionary element for the sentencer. This, I believe, is simply unjust where children are concerned, and is something no sentencer wants. Indeed, the chairman of the youth courts is on record as saying that he is not in favour of this proposed change.

We know from the most recent MoJ statistics that 85 children were given an immediate custodial sentence for offences involving possession of a knife or offensive weapon in the third quarter of last year. Custody consistently accounts for roughly 9 per cent of all disposals. In other words, the courts already have the necessary powers to deal with the problem and are using them, and they must be able to take into account all the circumstances of a child’s offence, and his or her needs, as well.

Children are not small adults and must not be treated as such. This is where the skill, knowledge and understanding of sentencers are extremely important. In fact, the number of children committing possession-related offences is going down, which suggests that the current sentencing framework is working appropriately, combined with knife-prevention programmes and the like. Therefore, it is clear that the proposed mandatory sentences for this type of crime where children are concerned are both unnecessary and inappropriate. In fact, despite public anxieties about the growth of possession of knives, the statistics issued by the MoJ also show that last year between July and September there were 904 offences involving possession of a knife, which was down 48 per cent on the same period three years ago. This suggests that, once again, the current sentencing framework is getting it right.

The riots of last year were and are a cause for real concern. We still do not really have a proper understanding of what lies behind those extraordinary events, which are mercifully atypical of public behaviour in this country. Those pockets of inner-urban areas where there is an undue amount of trouble, which buck this overall trend of falling knife crime, are now the subject of debate. I am always impressed by the skills of the police and other agencies in dealing with the issue, and we must work with them to deal still more effectively with it. But the figures overall simply do not justify a knee-jerk response of the introduction of mandatory imprisonment for children as a response to exceptional events like the riots, by simply changing the law as is proposed. Any change of any kind should only be the result of careful, thoughtful inquiry and discussion.

Equally important for society is to consider what in fact the outcomes of such sentencing are likely to be where children are concerned. Professor Ashworth put it quite bluntly in 2010, when he wrote that the evidence of any deterrence value of mandatory sentences of imprisonment for 16 and 17 year-olds is “non-existent”. The Halliday report back in 2001 equally found that there is no evidence to suggest that, for children, there was a link between sentence severity and deterrence effects. Rather, it is the risk of being caught that is most likely to affect behaviour. Indeed, Frances Done, the distinguished chair of the Youth Justice Board, said that the risk of being caught is,

“about twice as important as the punishment”.

A range of other studies has also come to the same conclusion.

The fact is that young children are often not capable of looking ahead and assessing the likely long-term effect of carrying a knife, or what that might mean to them and their families. Understanding consequences requires a degree of maturity that such children often simply do not have. Nor do they have independence of mind when they may be surrounded by others who are older who carry knives. Furthermore, there is a consensus among those who work in the field that what are referred to as fear and fashion have a great impact. I declare an interest as a trustee of the Esmée Fairbairn Foundation, which has funded work in this field that has been highly relevant and effective.

Three-quarters of the number of children who carry knives do so to protect themselves rather than to use them aggressively on another person. They do so because they are scared. It is a really sad thought that children should feel that way in this country. The corollary is that it becomes as fashionable to carry a knife as it is to have the latest mobile phone or iPod.

Complex social problems underlie knife carrying, and we must continue to do more to address them. That involves a lot more education and awareness-raising about the consequences. Mandatory four-month prison sentences involving two months in custody and two in the community on licence will do little to deal with those problems. That will achieve a purely punitive response. Although punishment is one element in the armoury of the sentencer, it must be balanced with the other purposes in sentencing for children, as every judge or magistrate knows.

I reiterate that short mandatory sentences for carrying or threatening with a knife is punishment as political gesture, which has little chance of achieving anything positive. Difficult as I know it is for him, but in the interests of justice, I urge my noble friend to look again at Clause 128. I beg to move.

[Lord Lloyd of Berwick]

My Lords, I support the amendment moved so well by the noble Baroness, Lady Linklater, but I would like to go further than she has. If the Committee accepts her amendments, as I very much hope that we will, we might as well go a little further and get rid of Clause 128 altogether, because it serves no useful purpose.

I start with subsection (1). Carrying an offensive weapon in public has been an offence under the Prevention of Crime Act since 1953—a long time ago. It carries a maximum sentence of four years. Incidentally, those were the days when the whole of one year's legislation could be included in a single volume of ordinary size, which one could read in bed, if one was so disposed. Compare that to what we have today: eight enormous volumes which one can hardly lift at all. That is by the way.

In 2003, the Court of Appeal issued some guidance in which it said that if the offensive weapon is used to threaten someone, the sentence should be at the upper end of the scale, approaching four years. I ask a simple question. What can be the purpose of creating a new offence of threatening with an offensive weapon when it is already adequately covered by the Prevention of Crime Act 1953 with exactly the same maximum sentence? Surely a sound principle of legislation in the criminal field, as in other fields of life, known as Occam's razor, is that offences should not be multiplied without good reason. I can think of no good reason for enacting Clause 128(1). If the noble Lord can think of some good reason, I hope that he will let us know what it is.

Exactly the same applies to subsection (2). Carrying a knife in a public place or on school premises has been an offence since the Criminal Justice Act 1988. It also carries a maximum sentence of four years. Again I ask: what can be the purpose of creating a new offence of threatening with a knife when it is already covered by the 1988 Act with exactly the same maximum sentence?

It would surely be fanciful to suppose that by the addition of the words “threatening” or “threatens” in the description of the offence anybody is going to be deterred in real life. In real life, those who carry knives do not pay much attention to what we say here in Parliament. The courts already have ample powers under the existing law to deal with those who threaten with knives. Let us leave it to the judges, because nothing more is needed.