Victims of Domestic Violence and Abuse

Lord Ponsonby of Shulbrede Excerpts

Thursday 6th June 2019 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I too pay tribute to the noble Baroness, Lady Newlove. I particularly agree with her opening point on the inappropriateness of using police requisitions rather than police bail when one is dealing with domestic abuse cases. This is something that I see quite often and it is of great concern. I also agree very much with the comments of my noble friend Lady Armstrong and the noble Baroness, Lady Burt. We sit on the Joint Committee for the draft DA Bill and it has been a pleasure and a privilege to serve with them both. I sit as a magistrate in London, in Westminster magistrates’ court in the Specialist Domestic Abuse Court, and I will concentrate my comments on the way we work in that court.

I have been a magistrate for about 14 years now, and in that time we have seen a development of the recognition of domestic abuse as a pervasive ill in our society. The courts have adjusted procedures and sentencing practices and we are still looking at ways to hear cases fairly and reduce the very high drop-out rate of cases coming to court.

I will make a brief comment on family courts. Some 70% of all cases in the family courts have a DA element to them. Of course, that needs to be recognised when we are finding suitable long-term arrangements for children. That is a separate subject and I will not dwell on it now, but I think that the Government’s three-month review of the role of the family courts is inadequate. It is a very complex matter and one of the most difficult things that I have to deal with, so a more in-depth study would be appropriate for the work of the family courts.

The figures for domestic abuse in England and Wales are in the briefing note that we received from the Library. It is clearly a gendered crime in that the vast majority of victims are women, but other groups such as disabled people and elderly people are disproportionately vulnerable. It is also a hidden crime in that it occurs mainly in private, in the home. It is also—this has been touched on in today’s debate—difficult to define what domestic abuse is. The perspective of domestic abuse has evolved in the time that I have been aware of it over the last 14 years.

I shall say something more about the work of Westminster magistrates’ court. It is supported by a charity, Standing Together. Complainants are supported through the court process. This time-consuming work is done so that women—and it is usually women who are the victims—understand the process and the likely outcomes of the court’s sentences. Another important factor is that the court will be better informed when making bail decisions. Bail is very often one of the most difficult decisions one has to make in court. The additional information we get as magistrates means that we can make better decisions. All this extra, non-statutory support that we get in Westminster magistrates’ court is paid for by the local authorities—Hammersmith and Fulham and Westminster councils.

I shall go through the extra support we get from the co-ordinators who work in the court. First, the complainants’ wishes are much better understood by the court than may normally be the case outside a domestic abuse situation. Secondly, there is a far fuller understanding of ongoing proceedings in other jurisdictions, other matters that may be coming to court and previous hearings. Thirdly, and equally importantly, the co-ordinator will liaise with social services to understand issues in the family background and the housing status of the men and women involved. Fourthly, we get additional police information—namely, callouts to the home. That can, and sometimes does, colour our decision on bail. There is also better tracking of cases. There is liaison with local authorities through the MARAC procedure, which is the complex recording and research of difficult cases, and with police community safety officers and witness care.

It is evident to me that, while these courts play a central role in ensuring that the guilty are brought to justice, they are, and must be, only one part of a wider co-ordinated community response to the complexities of domestic abuse. Ongoing support of DA victims not only supports better outcomes in court but means that victims will feel better able to leave abusive relationships and live safe, violence-free lives. The management of specialist DA courts is done by the normal court listing process, but we have 10 agencies that regularly sit in on meetings as we review procedures and listing patterns.

As a magistrate, I do not get involved in looking at conviction rates. Magistrates leave that to the CPS and literally leave the meeting when that subject is talked about. Our concern as magistrates is just that the case gets on so that we can have a fair hearing of the matter before us. I know that the Government are sympathetic to the work of these courts, and we have benefited greatly from the non-statutory support of the specialist co-ordinators. However, I believe that, even without that support, the court could do better in addressing the procedures and levels of co-ordination with other agencies to get better outcomes for domestic abuse cases. The statistics in Westminster show that the number of defendants is increasing, the conviction rate is increasing and the number of hearings per completed case is decreasing—all of which helps to give proper support to specialist domestic abuse courts.

Offensive Weapons Bill

Lord Ponsonby of Shulbrede Excerpts

Report: 1st sitting: House of Lords
Tuesday 26th February 2019 Lords Chamber

[Baroness Hamwee]

My Lords, I am speaking partly as a member of the Joint Committee on Human Rights. I am not going to read all the letters that the committee has written to the Minister, and I know that she will respond to the committee, but I thought it appropriate to let the House know that the committee has raised concerns, having identified seven rights that are engaged by these proposals. As one might expect, the concerns are about the possible criminalisation of children who have no previous criminal convictions, for breaching requirements which could be imposed in ways which prevent them conducting a normal life.

The committee also asked whether the regime for gang injunctions, which the noble Baroness has just mentioned, might be applied in a similar fashion. They can be applied only to persons aged 14 and over, and a breach is a civil contempt of court, not a criminal offence. For those under 18, breaches are dealt with by way of a separate statutory scheme, with a maximum length of detention of three months. Therefore, the committee has asked the Government to explain why a similar regime has not been proposed to tackle knife crime. The committee has also asked for early sight of the proposed guidance, so that it can be scrutinised when the Bill returns to the Commons.

The amendments on piloting—which are amendments to government Amendment 52—were tabled before yesterday’s round-table meeting with the Minister for Crime, Safeguarding and Vulnerability, which has been referred to, to probe how the pilot proposed by the Government will operate. What is “purpose” in this context? The pilots are to be for a specified purpose, and one needs to understand “purpose” before one asks about specified purpose. I would have assumed that it is to prevent knife crime, but there must be more than that. In Amendment 56, we take a shot at this issue by listing various categories of order.

We are also seeking to obtain assurances that the objective of the pilot is to evaluate, learn and adjust, so in Amendment 57 we refer to the criteria to be used in evaluating and collecting the data about numbers, including age and ethnicity; data about the conditions applied by the court, since it is important to know in practice what happens; and, of course, data about consultation. We have also raised the issue of areas, although since tabling this amendment I understand that it is not proposed that the pilot—or the first pilot, maybe—will necessarily be a whole-force area; for instance, within the Met it may be two or three boroughs and if we are to have these orders, that seems to be right for the purposes of comparison.

In Amendment 107, the noble Lord, Lord Kennedy, has been far more straightforward than my rather convoluted attempt at ensuring that the regulations will be made through an affirmative SI—not just the initial pilot but the full rollout. I hope that the Minister will not analyse my drafting but confirm that that is what is intended.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I rise to speak against the Government’s proposals. I remind the House that I sit as a magistrate in London. In fact, earlier today I was dealing with knife-related offences at Highbury magistrates’ court. The noble Lord, Lord Paddick, summarised very fully the case that I was going to put forward so I will try to put forward different points, which were covered earlier in Committee.

The Government’s case is that the KCPO is aimed at filling a gap which is not covered by existing preventive measures, such as gang injunctions and criminal behaviour orders. The Minister has argued forcefully that the potential benefit of preventing knife crime through KCPOs outweighs the potential disbenefit of criminalising children who breach such an order. In essence, that is the argument which we have had a number of times over the last few weeks. She will be aware that many groups have advocated against these KCPOs, for the reasons that we have heard this evening.

Yesterday, I too attended the round-table meeting with the Minister in the Commons, Victoria Atkins. When I asked her for the difference between a KCPO and a conditional caution, I got a better answer than I was expecting because she said that the KCPO would provide a wraparound approach. I was a bit surprised by her words. Earlier this evening we heard from the noble Lord, Lord Hogan-Howe, about hoping to replace inadequate parenting with a more caring—I think that was the word—approach, so that parental care may be approached somehow through these KCPOs. That is absolutely great and I would support it as a good thing, but the reality is that there is no new money available. As far as I can see, the only difference between a KCPO and a conditional caution is at the level of entry into either the order or the caution.

As we have heard, the KCPO has a lower requirement. It is a civil standard, based on the suspicion of a police officer. I remind the House what the requirements for a youth conditional caution are. First, there may be a clear admission of guilt. That is one option but there is a second which is not normally remembered and where there does not need to be any admission of guilt. If the officer believes that there is sufficient evidence against the young person, they can choose to place a conditional caution even when there is no admission of guilt. Of course, all the conditions, as far as I can see, can be exactly the same either in the KCPO or the conditional caution. I do not see how the laudable aspiration of providing wraparound care or some form of parental guidance—or however one chooses to phrase it—would be better met with a KCPO than with a conditional caution.

There is the other effect, the one that we have been talking about, of net-widening when having the lower standard of proof. The people who have advised me are confident that that will bring more young people into being criminalised, which I would regret.

The Minister gave a very strong speech earlier this evening, but the reality is that there is no more money available. That is much more important than however many pieces of legislation that this House chooses to pass. I hope that the Minister will say something encouraging about putting more money into youth services for young people, because that is the true answer to this problem.

[Lord Ramsbotham]

I rise to oppose the KCPO proposal, as I did in Grand Committee. I shall not repeat all the arguments that I raised then, because other noble Lords have already mentioned them. However, I ask the Minister: who dreamed up these KCPOs? Were they a Home Office invention? It appears that the Youth Justice Board, the Children’s Commissioner and local government services were not consulted. The Magistrates’ Association, the Association of Youth Offending Team Managers, the Local Government Association, The Children’s Society and the knife crime APPG are all opposed to it. We hear from the noble Baroness, Lady Meacher, that the police and crime commissioner in Durham is also opposed to it.

I am glad that the noble Lord, Lord Ponsonby, mentioned the cost, because there is no reckoning or details of the cost available to Members of this House. I question the pilot and am also worried about Amendment 63, because that seems to click in only if the KCPOs are approved. I hope that the House will not approve them.

Children and Families Bill

Lord Ponsonby of Shulbrede Excerpts

Wednesday 16th October 2013 Grand Committee

[The Earl of Listowel]

I rise briefly to support these amendments and to make three points. First, above all, children who have experienced trauma—indeed, all children—need parents who stick with them through their lives. Children who have experienced abuse over periods of time need carers who stick with them over the years and who are reliable and consistent.

Last night, I was at a meeting and met psychiatrists from all over the world who have just published a book on the mental health of looked-after children. The final point in the editor’s chapter in the book was that he encouraged all clinicians always to remember that the most important thing to help these children recover from past trauma is to enable them to have relationships with people who care about them and stick with them. Family relationships—long-term committed relationships—are what they need. If they cannot find that at that particular time in their lives then, as a clinician, you need to equip them to be able to make and keep those kinds of relationships. It seems to me that that is much more likely to happen in these kinship care models than in foster care, although it often happens there too.

Secondly, good social care interventions can make a difference. The most popular intervention that foster carers talk to me about is support to understand how they manage the behaviour of their young people. All young people can, at different times in their lives, be difficult to manage, but young people who have been traumatised, abused or neglected will often display very difficult behaviours. In fact, in 2004 a report from the Office for National Statistics on the mental health of looked-after children highlighted that those in foster care had, I think, a 40% rate of mental disorder compared with, I think, a 5% rate in the general population. The rate for those in residential care was 70% or so. A very high percentage of those mental disorders are conduct disorders, things such as troubling behaviours from young people. Carers need support to understand and manage those behaviours, and they tell me they really appreciate it.

They also need to be connected with other carers with the same experience. When foster carers are helped to connect regularly with other foster carers in the same position and the same job, they value being part of a community of carers and being able to share experience and learn from it.

Finally, I take this opportunity to highlight the letter sent to me by the noble Lord, Lord Nash, regarding the recruitment and retention of child and family social workers. It is key to this area, to trafficked children and to children returning from care. In this brief debate, we have heard examples of poor and variable practice in child and family social work. I know that several noble Lords trained and practised as social workers. It is enormously encouraging that, in recent years, in the previous Government and in this Government, there has been a real commitment to raising the professional status of child and family social work—to raising entry requirements and training standards. In his letter, among several other things, the Minister drew my attention to a review by Sir Martin Narey commissioned by the Government into the initial training of social workers, which is being published in January, and to new data-collecting on social workers on the front line in local authorities, so that we will have a better understanding of how well we are retaining the new social workers that we are recruiting. I draw that to your Lordships’ attention because I think it is important.

I also want to commend the Government for taking this consistent stance towards social work, which in the past has been far too neglected. One of the key ingredients for getting better outcomes for children, whether they are in kinship, foster or other settings, is to get support from the right professionals, and I hope we are moving in that direction now. I strongly support these amendments.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I wanted to speak briefly in support of these amendments. My noble friend Lady Massey has set out the framework and how important it is statistically, but I was sitting as a family magistrate only last week and I thought it might be interesting for the Committee to hear the decisions that we were invited to make as a court. The scenario was of a two year-old boy in a successful fostering arrangement. His uncle had come forward with his wife. They already had three children and they were willing to take on the boy. That would put them in the situation of having four children under the age of six in a two-bedroom flat in London. All parties supported the arrangement that was to be made by the court and the decisions that we were invited to make as a court were to finalise the financial arrangements between the local authority and the carers. There was a bit of brokering and toing and froing on what those payments were to be. As far as I know, they were discretionary but nevertheless they were offered. As I say, it was a bit of a haggle but a figure was agreed for the kinship arrangements to go ahead.

The second decision we were asked to make was whether to put in place a special guardianship order. This was opposed by the local authority but we decided to put it in place in any case, very much for the reasons that my noble friend has said. We believed that it would help the carers to have the support of the local authority for the first 12 months. That was no reflection on their ability to be good parents—in fact, we were sure they would be—but we wanted to help them. So we went against the local authority’s wishes on that particular decision. The other decision we made was to put in place the contact arrangements for the mother. The mother was a recovering drug addict. She was in court and we wished her well. We arranged that she would have contact on a yearly basis and that can be reviewed in due course.

Another issue that we were invited to address was the housing arrangements of this family. As I said, they would have four children in a two-bedroom flat. There was really very little we could do about that other than include a sympathetic paragraph in the judgment, urging local authorities to review their situation sympathetically. Realistically, they were looking at a two or three-year wait for a transfer. Nevertheless, that was something we put in the judgment. The final thing we put in, which we thought about very carefully, were the transfer arrangements. As I said, this particular little boy had been in a successful fostering arrangement where he had blossomed for two years and now he was moving to another arrangement. Obviously, however well-meaning everyone was, it would be a difficult transition arrangement for the boy.

The point that I wanted to make is that all the parties supported this. The local authorities put extra money in and the mother agreed to the arrangement, even though she was losing her boy and the kinship carers would have to take the child on. This is a good solution for all concerned, and if it can be put on a more statutorily substantial footing, I think that that will be to the benefit of all concerned.

[Baroness Northover]

My Lords, I thank the noble Baroness, Lady Massey, for her amendments, which cover support and services for family and friends carers. I commend her for the motivation behind the amendments.

We fully recognise the valuable contribution made by family and friends in caring for children who cannot live with their parents. We owe them a great deal, as the noble Baroness so eloquently showed. We have heard a great deal about the potential benefits of family and friends carers not only from the noble Baroness, Lady Massey, but from the noble and learned Baroness, Lady Butler-Sloss, the noble Lord, Lord Northbourne, the noble Baroness, Lady Drake, and the noble Lord, Lord Ponsonby.

I found myself thinking that sometimes women like me are described as the “sandwich generation”. We look after our children and our parents, but if our children then come back and bring their children for us to look after, that perhaps makes us a double-decker sandwich generation. I hope that my children do not do that.

Noble Lords will be aware that family and friends care, or kinship care, covers a wide range of legal arrangements and, where appropriate, as we have heard, assessments are already in place for putting in the appropriate financial or practical supports. The Children and Young Persons Act 2008 amended Section 17 of the Children Act 1989 so that local authorities could provide regular and long-term financial payments to families caring for children where they judged this to be appropriate. This provision, passed under the previous Government and made discretionary, came into force in April 2011.

In order to clarify the role of local authorities, the Government released statutory guidance on family and friends care, and this also came into force in April 2011. It aims to ensure that children and young people receive the support that they and their carers need to safeguard and promote their welfare.

We are aware that family and friends carers often struggle, as we have heard, to obtain information that will assist them in their caring role, particularly when they have taken on the care of a child in an emergency. That is why the family and friends statutory guidance makes it clear that local authorities have a duty to ensure that their family and friends policy supports the promotion of good information about the full range of services for children, young people and families in the area and highlights the availability of advice from independent organisations.

However, we are aware that the quality and quantity of local authority policies in this area are not at the level they should be. That is why we currently have a programme of work to reduce the variation in practice within and across local authorities. This includes sector learning days for local authorities that will support the development of local policies and guidance as well as clarify the primary legislation and how it is being implemented.

I thank the noble Earl, Lord Listowel, for commending this Government and the previous Government for their support for the vital social work profession.

It is also very important that family and friends carers understand what support services they are entitled to, so the department will be developing an information resource containing the basic facts, entitlements, services and advice that are available to them. This resource will not only increase the knowledge base of carers but will raise awareness of front-line practitioners, such as GPs, and those in education and childcare settings, who are often the first point of contact for new family and friends carers.

Crime and Courts Bill [HL]

Lord Ponsonby of Shulbrede Excerpts

Monday 2nd July 2012 Lords Chamber

I have no doubt that any reasonable magistrates’ court looking at the situation would inevitably take into account those three elements spelt out in the amendment, if it was doing its duty, as I am sure it would do. What is wrong therefore in spelling them out at this stage, especially since Clause 20 is drawn in such wide terms? It would mean that, once that sum of money had been added to the fine, all the sanctions which would have been appropriate in relation to the fine would be relevant in relation to the added amount.

[Lord Ponsonby of Shulbrede]

My Lords, I support my noble friend Lord Touhig in the detail of what he is proposing. I agree that when costs are added they should be means-tested as were the original fines when they were put in place.

I want to raise a separate issue which I raised also at Second Reading, and this is probably the best amendment with which to do so. When magistrates impose new fines, they very often do not know the level of the outstanding fines. It is not unusual for a magistrates’ court to go through hundreds of cases in a day when they are dealing with small matters and to put on hundreds of fines. They will never know, in my experience, what the level of outstanding fines is. This is clearly unsatisfactory because it can, and in many cases does, force people into an unstable financial situation. If the courts had known the level of the outstanding fines, they might have looked at other sentencing alternatives which were more appropriate for the person who is unable to pay their fines.

I have raised this issue with colleagues who are magistrates. It is feared that, if this provision were made mandatory, the administrative procedures would be brought to their knees because, as I said, literally hundreds of fines can go through in a single sitting. The administrative system should be set up so that magistrates and judges can get information on the level of outstanding fines in reasonable time before they go ahead and sentence. As I said, this is a slightly different matter from the burden of the amendment, but it goes to the heart of practicality of imposing fines.

[Lord Beecham]

My Lords, in speaking to my noble friend’s amendment, I shall deal also with my opposition to the question that the clause stand part. Before I do so, I am sure that your Lordships would wish to join me in extending to the noble and learned Lord, Lord Mackay of Clashfern, who is not in his place today, congratulations on his 85th birthday. It would be good to see that in the record of the House.

I support the amendment moved by my noble friend Lord Touhig and have little to add to it, save that the Minister will have received a letter from Mr Paul Nicolson of the Zacchaeus Trust which was sent to my noble friend and copied to a number of your Lordships. It illustrates the nature of the problem that my noble friend has addressed, but with particular reference to the outsourcing of the collections enforcements system under Clause 20(2). This proposes an amendment to the Magistrates’ Courts Act which prescribes that:

“All functions of fines officers may be contracted-out”;

my opposition to stand part refers to this.

Mr Nicolson’s letter sets out a case for doing that. The amendment went down before I had heard from him, so we were of a like mind without knowing it at the time. One of the concerns that he expresses—which has been touched on by my noble friend—is that the cost of enforcement is likely to rise significantly to the extent that it is contracted out: courts officers do not, of course, charge the same amounts as bailiffs. The Minister will have seen from Mr Nicolson’s calculations that whereas court costs and a fine officer might add £135 to a fine of around £200, where bailiffs are involved, that figure could rise very substantially indeed because they charge a great deal more. I will be moving an amendment in relation to bailiffs a little later.

The letter suggests that the privatisation, if you will, of enforcement is likely to aggravate the problem. It says that contrary to the Government’s view—and I do not know if the Minister will be able to comment on this—

“fines officers do make judicial decisions”.

If they were privatised, that would be effectively privatising an element of judicial discretion. The letter goes on to say that, at present:

“The magistrates will set the level of the fine and then issue a collection order. It is then the fines officers’ duty to collect the fine. They decide: a) the weekly/monthly level of payment; b) whether it should be changed if there has been a change of circumstances; c) to send out bailiffs to defaulters”,

and, importantly,

“d) whether to send the case to the magistrates for reconsideration”,

if it is found that the defaulter is vulnerable or the fine is disproportionate and should be reconsidered.

Mr Nicolson supposes that the Government will argue that these are purely administrative tasks; I do not know whether the Minister will be advancing that argument. However, from his point of view, and I guess that of the Zacchaeus Trust, these are effectively part of the judicial functions of the court and should not be privatised, with all the additional costs to defaulters that that would involve.

I therefore support the amendment. My opposition to clause stand part is designed to invite the Government to explain the rationale for further contracting-out of this function, how it might operate, and to what extent it is expected that this service will be privatised and at what cost to the public purse and to debtors. I hope that the Government will perhaps reconsider this. We may otherwise have to revert to it at Report. It seems a step too far in terms both of the burdens it will impose, and of the principle of contracting out a significant role like this beyond the court system.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Ponsonby of Shulbrede Excerpts

Tuesday 7th February 2012 Lords Chamber

[Lord Woolf]

I would be bold beyond my own abilities to be bold if I were to try to attribute responsibility between the various players in our society as a whole. I think that we all contribute to the present situation. Judges cannot hide behind the media; magistrates cannot hide behind the media; and I certainly would not have sought to shirk the responsibilities I had by hiding behind the media. Nothing would please me more than if the media could learn the wise lesson that the noble Lord, Lord Judd, was suggesting that they should learn.

The noble Lord is absolutely correct. Sentencing is a lonely business. When you are put under considerable pressure in trying to determine the right sentence, you try to put out of your mind what you read daily in the media, but sometimes it is a very difficult thing to do. But it can just make the difference that I have said is so important between taking the decision of imposing a short sentence and taking the much more sensible course of imposing a positive sentence—one of the sentences that the noble Baroness, Lady Linklater, wants the courts to be aware of—which can so much better be imposed of service in the community.

[Lord Ponsonby of Shulbrede]

My Lords, I had not intended to intervene in this debate but it has been so important that I felt that I really had to.

Some noble Lords may know that I sit as a magistrate so it is with some trepidation that I follow the noble and learned Lord. I sit as a very junior magistrate in central London and I sit on a probation liaison committee. That committee is of huge importance, both to me personally and to all my colleagues. Of course, we become aware of the sentencing options. It is a training event that happens regularly—it happens every Thursday as well as more substantial training events—and I and my colleagues regard it as extremely helpful to be brought up to date on a continuous basis with all the community sentence courses that are available.

I very much support the first amendment of the noble Baroness, Lady Linklater. It is of huge importance. It is particularly important that it is on a statutory basis because that will recognise the importance of that work in giving magistrates confidence in the community sentences so they can go ahead and issue them. That is an absolutely central point, about which I can talk from my own experience.

I also take the point made by the noble Lord, Lord Ramsbotham, about programmes sometimes being too long to fit in with the length of the community sentence. I have come across this issue several times. One needs to have a real faith and trust in the probation reports that one is given in order to come up, if you like, with the minimum time realistically to achieve the elements within those sentences. Again, that comes down to a question of professional trust between the different elements in any court.

Even though I agree with the general views on minimum sentences, I am rather less enthusiastic about the noble Baroness’s second amendment which concerns them. In my experience, some 90 to 95 per cent of the short-term sentences that I have given have been for people who have broken their community orders. I understand that that is not an attractive argument but that is the reality of my sentencing experience here in London. Of course we constantly look at the alternatives. No one wants to give short-term custodial sentences. I understand that they are very often ineffective, but the reality is that very often the people to whom one gives those sentences have already failed on their community orders.

[Lord Woolf]

My Lords, does the noble Lord not think that the amendment clearly covers that case? It allows a short sentence to be imposed when there is no other appropriate way of dealing with the offender. If you have imposed a sentence and the offender has not complied with it, surely that is a classic example of a situation where there is no other appropriate method of dealing with the offender. I say that with diffidence because I appreciate how difficult it is for magistrates to deal with the sort of offender the noble Lord has just described.

[Lord Ponsonby of Shulbrede]

The noble and learned Lord, Lord Woolf, is of course correct. Magistrates already give their reasons and say why it is so serious that only a custodial sentence will do. I was really addressing the speech made by the noble Baroness, a substantial part of which was against short sentences per se. I understand that the amendment does not make that point, but, because of her speech, I felt duty bound to point out that the reality is that we are very often sentencing for breaches of community orders. Nevertheless, this is an important debate and I am happy to support both amendments.

[Lord Beecham]

My Lords, I defer to the huge wisdom and practical experience of all noble Lords who have spoken in this debate. In particular, I congratulate the noble Baroness, Lady Linklater, on the clarity with which she developed her arguments in respect of both amendments. Like her, I am indebted to the Prison Reform Trust for its briefing. I should say that I am a member of an advisory group on young offenders that is run by the Prison Reform Trust.

On the first amendment, clearly it would be helpful to everyone involved in the system for the maximum degree of information to be available to those who are charged with the responsibility of sentencing—and in so doing, to take advantage of the work of the Local Crime: Community Sentence initiative which is run by the Magistrates’ Association and the Probation Association and has been endorsed by the Lord Chief Justice. This is in part to assist magistrates in coming to their decisions, but also in part to ensure that the public are aware that community penalties can be and often are an effective alternative to imprisonment. But there is a feeling that, perhaps due to pressures on the probation service in particular, there has been a reduction in the degree to which the two are working together and communicating effectively in practice. It is no easy task to deal with the volume of cases that come before the courts, either from the standpoint of the probation service or, indeed, from that of the magistracy and those who provide advice to magistrates. This amendment certainly offers an opportunity to develop what has been good practice and ensure that it is spread more widely.

--- Later in debate ---

[Baroness Linklater of Butterstone]

My Lords, I thank all noble Lords who have taken part in this extraordinarily interesting and well informed debate, which is really important for how we will take things forward in future. I will whizz through some of the very helpful comments that were made.

The noble Lord, Lord Judd, is always very wise. He said such nice things about me that I could only cap them with my endless admiration for him. He pointed out how important the individual is—the hand held out to lead somebody out of a dark place where we have possibly stuck them. Sharing experiences is of unbelievable importance. I must get the Dickens quotation from him. I know exactly what he means about the press exacerbating the problems of crime.

The noble Lord, Lord Ramsbotham, is the voice of such wisdom and experience. The idea of a prospectus across the services is very good. Is it not interesting that we do not have such a thing? If sentences were linked to behavioural progress, that would make those kinds of targets meaningful instead of being independent of each other.

The noble and learned Lord, Lord Woolf, is my hero. He said that he knew that sentencing was not working well when he was in charge. That showed great honesty and insight. Of course, we both agree that there are times when certain sentences, including custody, are the one appropriate disposal. We accept that. The idea that some of these arguments could make a difference is a wonderful and extraordinary thing. I hope that everybody heard the range of the arguments we have had today.

I thank the noble Lord, Lord Ponsonby, for what he said. I am not sure that I entirely approve of the idea of using custody as the appropriate sanction for a breach. If a community sentence is not working, maybe the community sentence could be reviewed rather than saying, “This has not worked; we must go for breach”.

[Lord Ponsonby of Shulbrede]

I certainly think that community sentences can be reviewed and beefed up in some way. We have very clear guidelines on that point. The only point I made was that the vast majority of short custodial sentences that I give are for breaches and maybe multiple breaches. That was my only point.

[Lord McNally]

My noble friend Lady Linklater was on the point about community sentences made by the noble Lords, Lord Ramsbotham and Lord Ponsonby. Probation staff can take back to court offenders who have made significant progress on their requirements in a community sentence. Provision in Clause 62 clarifies the position when community orders come to an end and requirements have been completed. It is already there for community sentences. As I said, we will also consult more on making community sentences effective.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Ponsonby of Shulbrede Excerpts

Tuesday 7th February 2012 Lords Chamber

Moved by

[Lord Ponsonby of Shulbrede]

177DA: After Clause 78, insert the following new Clause—
“Youth rehabilitation order: restorative justice requirement
(1) In section 1(1) of the Criminal Justice and Immigration Act 2008 (youth rehabilitation order: requirements), after paragraph (o) insert—
“(p) the court may include in a youth rehabilitation order a restorative justice requirement.”(2) Schedule (Restorative justice requirement: Criminal Justice Act 2003) shall have effect.”

[Lord Ponsonby of Shulbrede]

My Lords, this group of amendments seeks to address an opportunity to introduce restorative justice into the Bill. Indeed, in the previous group of amendments, the noble Baroness spoke of the Government’s enthusiasm for restorative justice and the amount of money that they are investing in it. Restorative justice was referred to in favourable terms in the original Green Paper. The noble Lord, Lord McNally, has spoken, too, with real strength of feeling on restorative justice. He has said:

“Restorative justice is not a soft option. Facing up to wrongdoing can be a difficult and unpleasant process”.

I agree with that, but I add for myself that I think that it is a necessary part of the restorative justice process. I take it as read that all parties are in favour of adding a restorative justice provision to the sentences tool kit.

My Amendments 177DA and 177G specifically address youth sentences. Magistrates in youth courts need to have confidence, of course, that non-custodial alternatives to custody will work, and restorative justice, including conferencing, has a definite place in the right circumstances. If it were a specific requirement of a youth rehabilitation order, which is the burden of my amendments, it would emphasise its value and ensure that restorative justice is at the front of the sentencers’ minds when they come up with the sentence. The whole principle of youth sentencing is that youths often lack the maturity of adults and, in particular, may well not have considered the effects of their behaviour on their victims. It is true and proven that restorative justice can bring this home in a powerful way.

I accept that at present a restorative justice requirement could be requested as part of a supervision requirement or activity requirement. These obviously already exist, but the advantage of introducing a specific restorative justice requirement would be to keep that option at the forefront of magistrates’ or judges’ minds when they are sentencing.

The amendments tabled by the noble and learned Lord, Lord Woolf, take a more ambitious approach, in that he specifically addresses the question of remand and having a pre-sentence restorative justice programme which would form part of a pre-sentence report. Presumably—although the noble and learned Lord will speak to the amendment himself—the sentencing bench would take into account how effective that pre-sentence restorative justice programme has been.

In conclusion, I regard restorative justice as an effective tool in the box. There is a substantial body of evidence that it works. I have made the point before, but I shall make it again, that judges and magistrates see the consequences of these community sentences when they fail. We see the failures, because it is the job of magistrates and justices to come up with further sentences when people fall down on their community sentences, whether in the youth or the adult courts. But I believe that restorative justice has a proven benefit and that this group of amendments presents an opportunity to put it into the heart of this Bill. On that basis, I beg to move.

[Lord Woolf]

My Lords, it may be appropriate if I speak now to Amendment 177DAA, which is in my name. Your Lordships will see that the amendment is supported by a trio of very distinguished names. Perhaps I may say a word about the right reverend Prelate the Bishop of Liverpool, who cannot be here today. Unfortunately, he has been ill but I know he was very anxious to be here to support the proposal in any way he could. The other distinguished name which I mention with deference is that of the noble Lord, Lord Hurd. He is the president of the Prison Reform Trust, and I am proud to indicate that I am its new chairman. The Prison Reform Trust and the Restorative Justice Council are very enthusiastic about these proposals.

I was grateful for what the noble Lord, Lord Ponsonby, said in regard to his own amendments because I certainly endorse what he said about their virtues. He also indicated that my amendment perhaps goes a bit further. That is true but although I claim no credit for this, because others more able than I played a part in it, I draw attention to the fact that the amendment proposes, first, to give the court discretion as to whether it remands,

“the case in order that the victim shall be offered the opportunity to participate in a process”.

Because I know that the issue of costs will be high in the minds of those who appear on behalf of the Government, I also draw attention particularly to the proposal that the,

“court may not remand the case for the purpose specified … unless it is satisfied that arrangements for a process of restorative justice can be or have been made in the area where the offender will reside”.

This proposed new clause is really meant to cover the situation which I believe we are in.

The virtues of restorative justice are becoming more widely known because of the hard work that has been done by various organisations in different parts of the country. I was pleased to hear what the noble Baroness said about the Government's intention on restorative justice. I am of course aware that the Minister has also spoken in its favour. Regarding this amendment, I urge that it can do something very positive. It can put the stamp of approval on restorative justice into a statutory form. It can then allow the process that has already started to continue, and as and when the positive aspects of restorative justice can be brought into practice in different areas, arrangements can be made. In this way, there can be a growth of the use of restorative justice which is in keeping with the nature of the exercise.

In appropriate cases, it very often has a most markedly positive effect, first of all upon the victim. When we are dealing with criminal justice, it is important that we should not neglect anything that might be positive for the victim, and I am sure that the Government do not intend to do so. The other aspect is that it helps the process that, as I understand it, the Government propose to adopt and will ease the exercise that needs to be performed.

--- Later in debate ---

[Lord Ponsonby of Shulbrede]

I thank all noble Lords who have taken part in this debate. I particularly thank the noble and learned Lord, Lord Woolf. He emphasised an important point which I forgot to emphasise, which is the importance of victims and how restorative justice can be of benefit to them. I also thank my noble friend Lord Judd. His central point was the importance of bringing restorative justice into the mainstream of sentencing—a point on which all noble Lords who spoke tonight agreed.

The noble Lord, Lord Dholakia, gave some statistics about victim participation rates. I found them surprisingly high—much higher than my own experience of restorative justice in youth courts, where our main problem is getting victims to agree to participate. That is a substantial problem that I have come across, but if the noble Lord has other experiences, I am encouraged to hear that.

The noble Lord, Lord Ramsbotham, gave his cautionary tale. I am afraid that I can give cautionary tales as well. Nevertheless, restorative justice is a good thing to aim towards and to try to implement. I was amused that the noble Lord, Lord Carlile, predicted extremely accurately what the Minister’s response was going to be to this group of amendments.

Having said all that, I am encouraged by the noble Baroness’s response and I beg leave to withdraw the amendment.

Amendment 177DA withdrawn.

--- Later in debate ---

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, intimidation of witnesses is itself an offence, so one has to put these things into perspective.

The noble Lord mentioned a Keeling schedule. I note the point that he has made and shall take advice on it.

I am slightly amazed that either Justice or the noble Lord has cavilled at this proposal. It is said that decisions regarding remand and about sentences are completely separate. So they are, as the law stands; the question asked by this government proposal is whether they ought to be.

The Government consider that, in general, defendants should not be remanded in custody where it is apparent to the court that there is no real prospect of their being imprisoned if convicted. Let me be clear: this is not any Alice in Wonderland idea of sentence first, verdict afterwards. The court will not engage in a sentencing exercise in advance of the trial. The provision affects only cases where it is clear at the outset that the alleged crime is not serious enough to warrant a custodial sentence. Where that is the case, remanding the defendant in custody is generally disproportionate and not a sensible use of prison space. That sort of defendant will not pose a serious threat to public safety. Those defendants who pose such a threat will not pass the “no real prospect” test and so will still be liable to be remanded in custody.

Some respondents to the Green Paper argued that special considerations might apply where offences are committed in a domestic setting, in that an offence that does not require custody might nevertheless imply a risk of domestic violence if the defendant were bailed—the noble Lord raised that issue. We recognise the force of that argument, and have taken account of it. The provision incorporates a special exception to deal with that sort of situation. However, remand places are too expensive to waste on defendants who do not need them. We want to ensure that they are used only where it is necessary to protect the public.

I take note of what the noble Lord has said. I will consider and reflect on it but we believe that this is one simple way of stopping the use of scarce prison accommodation for people who, once they are tried and sentenced, are not going to be sent to prison. Clause 83 and Schedule 11 should stand part of the Bill.

[Lord Ponsonby of Shulbrede]

What would the noble Lord say to the case of failure to surrender? It is very common in magistrates’ courts to get people who repeatedly commit low-level offences and have no regard for court orders. They just do not turn up to court. Is the noble Lord really saying that there should be no threat of keeping them in custody until their trial?

[Lord McNally]

They can be tried in their absence and of course they can be picked up and put into custody. We are trying to deal with a very large number of people who go through our court system, are held in custody—taking up valuable prison space—but who from the very beginning it is clear will not receive any kind of prison sentence. If people do not turn up, of course they are in danger of being either tried in their absence or picked up and held in custody. If people try to intimidate witnesses, they commit a further crime for which they will undoubtedly end up in custody. In many ways, both Justice and the noble Lord are straining at gnats here. We are trying to deal with the very bottom end of cases. I will reflect on what he said, particularly on the Keeling schedule, and come back on Report.