Criminal Justice Act 2003 (Suitability for Fixed Term Recall) Order 2024
Debate between Lord Ponsonby of Shulbrede and Lord McNally(8 months, 3 weeks ago)
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Lord McNally (LD)
My Lords, apparently it is my turn. In a way, this is a continuation of the Question put by the noble Earl, Lord Attlee. The Minister knows the crisis in our prison system. That crisis has been made partly by legislation that we have passed in this House over the last decades.
I remember that, when I went into government with the noble Lord, Lord Clarke—Ken Clarke, who I still consider my friend—we had some ideas about reducing the prison population, which had then crept over 80,000, double what the noble Lord had experienced 20 years before when he was Home Secretary in the early 1990s. We sent a little package across to the No. 10 Politburo, but the message came back: “Not politically deliverable”. That has been the problem with Governments of all shades over the last 20 years: not being able or willing to try to bring down our prison population.
The noble Baroness is right that this is gesture politics, but it is a gesture in the right direction and therefore we support it. There is a concern that it is another example of central government moving responsibility to local government and local voluntary services, which then find themselves under pressure. If more probationers are in society and still needing supervision, will there be any more help for the voluntary services?
Apart from pointing out the ridiculous idea of putting in prison too many prisoners who do not need to be there and could be better managed in society, my argument, going back to the Question put by the noble Earl, Lord Attlee, would be to look at the whole process of managing the way out for prisoners at the end of their sentences, which is expensive, difficult and almost impossible in an overcrowded prison. It came up in that Question—and the Minister indicated that it may already be happening—that some of the experience and wisdom of prison officers towards the end of their careers could be used in a management and mentoring role. Otherwise, we give this SI our support.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I apologise for arriving late for the Minister’s introduction of this SI. We too support the SI as far as it goes, but I agreed with the noble Baroness, Lady Jones, when in the first part of her speech she pointed out quite rightly that, on the one hand, here we are reducing prison sentences while, on the other hand, other legislation down the other end of the corridor is increasing prison sentences. Of course, we have the overarching problem of a Prison Service running at capacity while the Government are struggling to build new prisons. That overarching problem will confront whichever party is in government; I need to acknowledge that.
The central point is about support for prisoners as they come out of prison, so that we do not have a revolving door. As the noble Lord, Lord McNally, said, various charitable and voluntary organisations working with local authorities can properly support prisoners as they come out of prison. As we also know, the most difficult cohort is prisoners who are on relatively short sentences; they are the prisoners most likely to reoffend.
As the Minister knows, I myself am a sentencer. I do short sentences—that is part of our bread and butter within the magistrate system—and it is always with great regret that I give an offender a short custodial sentence, but the reality is that we have found ourselves in a position where we have no alternative. Very often those offenders have been on multiple community sentences beforehand, so we as sentencers feel we have no choice.
Judicial Pensions (Remediable Service etc.) (Amendment) Regulations 2023
Debate between Lord Ponsonby of Shulbrede and Lord McNally(10 months, 4 weeks ago)
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Lord McNally (LD)
My Lords, it is a great pleasure to follow the noble and learned Lord, Lord Bellamy. I held his position in the Government between 2010 and 2013. I became Minister of State at Justice with the now noble Lord, Lord Clarke—Ken Clarke—as Lord Chancellor. One of our first visits was to go across Parliament Square to pay a courtesy call on the Supreme Court. He was, of course, in his element as a QC and a former Home Secretary, but I was filled with trepidation when soon after we arrived three Supreme Court judges bore down on me, clearly to seek some discussion on some high point of law—some difficult and abstruse point. I need not have worried: what they wanted to press me on was judicial pensions. There was some passion in that. I remember one of the first stages in the coalition Government, which probably ended up in the 2015 Act, was to try to address the various anomalies and uncertainties in judicial pensions, so it is with a sense of closure that I come this afternoon to support what the noble and learned Lord memorably described at an earlier stage as
“44 pages of the densest technical complexity one could imagine”.—[Official Report, 15/6/23; col. GC 375.]
Why am I not surprised that that should be the legislation dealing with judges’ pensions?
I am sure that we share with the Minister the hope that this is the final tweak to the regulations. In voicing our support from these Benches, I ask him how the regulations fit in with the more general objectives of judicial reform. Will we see a judiciary—particularly a senior judiciary—more diverse in social, gender, ethnic and educational background than hitherto has been the case? Does the Minister agree that it is important that our legal system should as much as possible reflect the society it serves? There is much to admire in the intellectual quality, integrity and independence of our judiciary. Its members are most certainly not “enemies of the people”, but they must not be seen as a Brahmin caste, separate from society as a whole.
The direction of travel in recent years has been slow but steady. I hope that a sensible and secure pension scheme will underpin the flexibility and social mobility necessary to retain confidence in and respect for our judiciary.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I too remember when the noble Lord, Lord McNally, had his time in office as a Minister of State.
Lord Ponsonby of Shulbrede (Lab)
Well, one of my roles is to be a lot of trouble—although I will not be a lot of trouble in this particular debate.
The noble Lord spoke about the Supreme Court judges talking with passion about judicial pensions. As a lowly magistrate, I have sat in magistrates’ retiring rooms with district judges, and I can say that they talk with equal passion about judicial pensions—I have heard about it for a number of years. A number of them are of course part-time district judges, and the matter is of great importance to them.
The noble Lord said that he approaches this debate with “a sense of closure”. I think that everybody hopes for a sense of closure on this issue, so the first question that I put to the Minister is: are we right to think that this is the last time that we will hear about this issue? It would be interesting to hear his reflection on that.
Previously when I have taken part in these debates, I have had sitting behind me my noble friend Lord Davies of Brixton, who is an actuary and an expert on these matters. The particularly interesting question that the noble Lord, Lord McNally, raised was on how these pension reforms will fit in with the wider objectives for the judiciary as a whole in building diversity and flexibility and other desirable objectives, which will affect pension entitlements, one way or another. If the Minister could say something about this in the wider context, that would also be of interest.
I have a further question about the likely timetable for implementing this remedy. Is it already under way and when might it be complete? A final question is on whether any judges would need independent advice on whether they should accept these proposals. Is it their responsibility to get their own independent advice? I do not know how that works. Is there an expectation that judges should take independent advice before receiving these pensions?
Other than that, we clearly support the measures as far as they go. I look forward to the Minister’s response.
Children and Families Bill
Debate between Lord Ponsonby of Shulbrede and Lord McNally(11 years, 1 month ago)
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Lord Ponsonby of Shulbrede (Lab)
My Lords, I am not briefed by the NSPCC but I have a brief from the Magistrates’ Association, which makes it clear that it also supports the 26-week time limit but also agrees that there should be specific extensions for eight weeks where people can apply to the court. It would probably be most helpful if I raised the questions that the Magistrates’ Association has raised in the brief that it sent me. Before I do so, though, I want to make the point that the examples of exceptions that my noble friend Lady Jones gave are very far from theoretical, because two of those examples I personally dealt with in the past month. They were very real examples of something that I understood very clearly.
The first of the questions that the Magistrates’ Association raised in its brief to me is really a concern that an application for an eight-week extension should resist that extension being a contested hearing, and obviously the decision of the court should be final. If there is to be a contested hearing on an eight-week extension, though, it should be as short and focused as possible. The second point that the Magistrates’ Association made was that it is not clear, from the association’s understanding, that there is any limit to the maximum number of successive extensions. The association’s final point is to ask whether there is any right of appeal if a lower court—although perhaps “lower court” is not the right expression—decides not to grant an extension. Is there any right of appeal to a higher jurisdiction?
Lord McNally
My Lords, I am grateful to the noble and learned Baroness, Lady Butler-Sloss, for her intervention in support of these proposals—I am also grateful for my momentary promotion. It gives me an opportunity to pay tribute to the work of Lord Justice Ryder when he was with the Family Division. He did a lot of ground-clearing in this area, not least bringing in some very useful comparative statistics which allowed us to see the variety in performance of courts, which was affecting children at a vulnerable time of their lives. When this exercise started, it took more than 60 weeks in some cases to come to a decision. The tri-borough project also demonstrated in advance of this legislation that this could be done more quickly. Certainly, the robust leadership that Sir James Munby has given in implementing the Norgrove proposals has meant that, as the noble Baroness, Lady Tyler, said, a culture of delay has been replaced by a culture of urgency. That is much to the credit of what we are proposing.
We all agree that delays in decision-making, whether by local authorities or in courts, can be very damaging. They can add to emotional insecurity and affect children’s prospects for returning to or finding a permanent loving home. Introducing a 26-week time limit for care and supervision cases will send a clear and unambiguous statement to all parts of the family justice system about the need to reduce delay. Removing certain cases from the ambit of the 26-week time limit at the outset, as proposed by Amendment 62, would undermine this effort.
I recognise that these cases deal with important and complex issues and not all will be able to be completed within this timeframe. The court will therefore have the discretion to extend the time limit in a particular case beyond 26 weeks if that is necessary to resolve the proceedings justly. The clause carefully strikes the necessary balance between putting in place a maximum 26-week time limit to tackle delay in all cases and allowing sufficient judicial discretion to extend time where necessary to resolve the case justly, having explicit regard to the child’s welfare.
Requiring extensions to last for a maximum of eight weeks at a time will help ensure that the court is focused on resolving cases as quickly as possible. To allow the court to grant an extension without imposing any limit as to the length of the extension, as proposed by Amendment 63, would potentially allow cases to drift. This could undermine the aim that we all share, of reducing unnecessary delay. There will always be some very complex cases which it may not be possible to complete within 26 weeks. Where that is the case, the court will be able to extend time, where necessary, to resolve proceedings justly. It is important, however, that we keep a clear focus on resolving cases as quickly as possible, and specifying a maximum eight-week limit on the length of extensions will ensure that this happens. There is, however, no limit on the number of extensions that can be sought.
I recognise the concerns of the noble Baronesses and have seen how successful intervention models such as the Family Drug and Alcohol Court approach can be. That is why I am very pleased that the Government are continuing to provide funding of £150,000 in each year of 2013-14 and 2014-15 to continue the development and rollout of the FDAC. As part of our funding of FDAC, we are proposing to continue work that will enable this model to meet the 26-week time limit in most cases. Proceedings in the FDAC model currently take the same time on average as standard care proceedings, and we believe that the 26-week time limit can be applied successfully in most cases.
I think I have just answered the point raised by the noble Lord, Lord Ponsonby. The noble Baroness, Lady Jones, asked about the Family Procedure Rule Committee. On the basis of its specific expertise, the committee has been invited to consider whether to further elaborate on the matter to which the court is to have regard in order to support Clause 14, and we await its response. The court rules may set out the matters to which the court must, may or may not have regard when making the decision whether to grant an extension to the time limit. It is, rightly, the remit of the FPRC to consider whether to make court rules under the clause; it is a statutory independent non-departmental public body responsible for making these rules of the court. Before making the rules, the FPRC must consult such persons as it considers appropriate, and we will update the Committee on the FPRC’s work before Report.
I am not sure whether there were any other matters that were specific to this; the questions come thick and fast. Yes, there was one: the noble Baronesses, Lady Jones and Lady Benjamin, raised the question of whether the 26-week time limit would impact on kinship care and whether it would be shoehorned into a one-size-fits-all solution. We are aware that, in spite of everyone’s best efforts, occasionally relatives are not identified until late in the proceedings. However, the 26-week time limit should not impact on kinship care. It is not for the courts to decide whether it is Granny who the child goes to; rather, it relates to the choice of the permanence plan being a relative if possible, followed by adoption or long-term foster care. After all, the court does not decide which adopters the child goes to when it agrees to a plan for adoption. We are continuing to use programmes such as family group conferences before proceedings start in order to identify family members from the onset of cases. In addition, we are working in partnership with the Children’s Improvement Board and the College of Social Work to support the continuing improvement of social work practice. Of course, the court retains the power to extend the case for longer consideration if necessary.
The public law measures in the Bill will tackle the damaging delays that exist throughout the system. These delays can deny children the chance of a permanent home and have a harmful long-term effect on a child’s development. The measures will also refocus the system so that the child’s best interests are part of the process. Our measures strike the necessary balance between tackling delay and allowing sufficient judicial discretion to resolve proceedings justly, and I hope that noble Lords will agree to withdraw these amendments.
Offender Rehabilitation Bill [HL]
Debate between Lord Ponsonby of Shulbrede and Lord McNally(11 years, 6 months ago)
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Lord Ponsonby of Shulbrede
My Lords, in moving Amendment 1, I shall also address Amendments 3, 5 and, in passing, Amendment 3A. Amendments 1 and 3 are designed to give greater flexibility to a sentencing court. As the Bill stands, everyone sentenced to a period of custody of one year or less will be given a period of 12 months’ supervision from their day of release. This, of course, is something that we welcome as a useful addition to the armoury of the probation service. However, there will be cases where this period of supervision is excessive, disproportionate and unnecessary. A court imposing a short custodial sentence of, say, 29 days or fewer will be well aware of the alternatives available—namely, a community order, which could itself have been more punitive and more rehabilitative. If, nevertheless, the court decides on a short custodial sentence, I would argue that it can be safely assumed that no rehabilitative action was required and therefore it should not be unnecessarily imposed on the offender.
Amendment 5 addresses the same point and is also designed to reduce the burden on the probation service. It provides that a court can direct, on advice from the probation service, that there need be no period of supervision. I should say that this would be in exceptional cases. The sort of cases that I am thinking about relate to the one-off nature of an offence where the offender is of previous good character, there were physical or mental health issues, or the offender is extremely old. Another factor might be the length of time that has elapsed between the date of the offence and the date of conviction where there had been no offending during the interim period.
The purpose of the amendments is to give the courts greater flexibility and prevent disproportionate and unnecessary supervision. As we heard from the noble Lord, Lord Ramsbotham, in the previous debate, yesterday we were fortunate enough to meet the Justice Secretary. The argument he advanced in response to these amendments was that there needs to be a stable cohort of offenders who are to be managed by the private probation providers. He went on to say that the new group of offenders who are to receive this new supervision need to be a stable group so that a proper assessment of reoffending among this group can be done on a year-on-year basis. The purpose is to make an accurate calculation of the payment by results of the private contractors and, most importantly, to assess the success or otherwise of the additional supervision to be provided.
I completely understand that argument. In my professional life I have done many similar calculations and I know it is very useful to have a stable cohort when making those calculations. But I would argue through these amendments that that simplicity and clarity of calculation should not be set above the interests of justice of the offenders themselves and, however low the level of supervision which will be imposed on these people, there will still be an additional cost. In the interests of justice for the offenders and a reduction in costs, I have tabled these amendments.
I turn briefly to Amendment 3A in the name of my noble friend Lord Beecham. A number of amendments address the transition of offenders from under 18 to over 18. The object of all these amendments is to try to maximise the input of the YOT service and to work flexibly with the probation service. This issue may be addressed in Clause 6(4), which will introduce new Section 106B(4)(b), and may well cover the points raised in this amendment. Nevertheless, I hope the noble Lord will address this point about maximising flexibility for the YOT service and enhancing its ability to work constructively with the private probation providers. I beg to move.
Lord McNally
My Lords, I am very grateful to the noble Lord, Lord Ponsonby, for the way in which he moved that amendment. During Second Reading, the noble Lord, Lord Ponsonby, told us about his experiences as a sitting magistrate and the frustration that magistrates often feel when they see offenders with long histories of offending coming before the court time and again. The noble Lord told us how magistrates genuinely feel that they use custody as a last resort. In all the discussions that I have had with anybody who has had an experience of the magistracy, that emphasis has been made. The Government share the frustration of the magistracy. They seem to be almost forced into successive custodial terms because of the cycle of repeat offending. That is exactly why we have brought forward the Bill. It is why Clause 1 extends release on licence and why Clause 2 tops up that licence with additional supervision.
The Government believe that the only way we can break the high level of reoffending among this group of offenders is to end the current position whereby they walk out of prison after half of their sentence with no support and no incentives to seek support to change. That is why Clause 1 applies licensing conditions to all custodial sentences of more than one day. I will explain why in Clause 1 licences apply to a sentence of more than one day, before I turn to the Amendment 1 of the noble Lord, Lord Ponsonby. First, there is a practical consideration. The headline sentence imposed by the court is, as the House knows, halved. It is not possible, nor practical, to halve a half day of custody. It is also the case, as the noble Lord, Lord Ponsonby, will be aware, that there are some minor cases in which the court decides that an offender could serve their sentence by spending a day sitting in the court. So, for practical purposes and to retain the power of the court to sentence to a day in court, we applied the licence and the new top-ups of this supervision to sentences of more than one day.
Amendment 1 would raise that minimum period to sentences of 29 days or more. In other words, a sentence of 28 days or less would result in unconditional release with no licence conditions, no top-up supervision, no power to recall the offender and no way to rehabilitate the offender other than the hope that they volunteer for support. A significant number of offenders who the noble Lord and his fellow magistrates sentence to custody receive a sentence of 28 days or less. The latest statistics from 2012 suggest that around 13,300 adult offenders received such a sentence. The reason why many of those offenders receive sentences of 28 days or less is that their history of offending makes the offence more serious, therefore justifying a custodial sentence. It is exactly because these offenders have failed to break their cycle of offending that they received the short custodial sentence in the first place, and it is because they have been released from short sentences with no support that they continue to offend and receive yet more short prison sentences. This is exactly the group that we should be targeting for supervision. It is a group of offenders for whom we should do everything possible to help them face up to the issues that have caused them to offend. Some of them will reoffend when under supervision and some will not comply with the licensed conditions, but that has to be better than the current position, where they are simply imprisoned and released, only to reoffend and be imprisoned again.
I understand why the noble Lord tabled this amendment but, given that it will not provide the courts with more discretion and will leave a significant number of offenders without support, I hope that he will consider withdrawing it. As the Secretary of State explained at our meeting last night, the intention is to have flexibility and common sense in terms of the treatment that is applied during that period of supervision. By the way, that was not a secret meeting—all noble Lords were invited and I was very grateful to those who did come along to hear him. At the very beginning of this debate, I would also make the point that we must not think of the period of supervision as punishment; it is a period of help and support, which we hope will help people to avoid reoffending.
I now turn to Amendments 3 and 5, in the name of the noble Lord, Lord Ponsonby. These relate to the top-up supervision covered by Clause 2, which will introduce a new Section 256AA, applying supervision to all offenders with a sentence of,
“more than 1 day but less than 2 years”.
That means that the period of licence will be topped up with additional supervision so that the two, taken together, amount to 12 months. Amendment 3 essentially follows from Amendment 1. If Amendment 1 was adopted, those serving 28 days or fewer would have no licence, and Amendment 3 would mean they would have no top-up supervision either. I have already said why the Government disagree with Amendment 1, and it follows that we would not support Amendment 3 for the same reason. It is a small point, and I do not want to labour it, but I assume that the noble Lord, in Amendment 3, meant to refer to more than 28 rather than 27 days, since his Amendment 1 related to sentences of less than 29 days—that is, 28 days or fewer. In other words, a sentence of 28 days would fall between the two.
Amendment 3A, in the name of the noble Lord, Lord Beecham, seeks to amend the categories of offenders who receive top-up supervision under Clause 2. Amendment 3A would exempt offenders sentenced in the youth court when they were under 18 from receiving top-up supervision, even if they were 18 when released from custody. I note that the amendment does not seek to extend this exemption to those sentenced when under 18 in the Crown Court. I understand the concerns, which my noble friend Lady Linklater has also raised, and we will return in later amendments to the question of supervision for those released from custody who have reached 18. However, I would say now that the Government believe that our commitment to provide 12-month supervision should apply to all those aged 18 and over, when they reach the point when they would be released from custody. We of course recognise that young offenders who have just turned 18 can have different needs from older, adult offenders, and we will expect providers also to recognise this difference and to tailor their supervision to the particular needs of this group.
Crime and Courts Bill [HL]
Debate between Lord Ponsonby of Shulbrede and Lord McNally(12 years ago)
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Lord McNally
If the noble Lord is going to help me, I will certainly sit down.
Lord Ponsonby of Shulbrede
Yes, I was going to help the noble Lord. There are nine listed in that list whereas there are 12 possible as part of the community order. Maybe that is what the noble Lord, Lord Clinton-Davis, meant: the additional three that are not listed.
Lord McNally
I will take that lifeline gratefully, but if there are other matters I will write to the noble Lord. I still cannot find the exact line.
It was requirements other than unpaid work, curfews or exclusions. I am now back on track. That takes us back to the point—we are now going full circle. Obviously, the concept of punishment is more likely to mean curfews, unpaid work, exclusions et cetera but, as we discussed earlier, it may be that there are other impositions which, for that particular offender, would be seen as a punishment. The court would have that flexibility to so define them. I hope that helps and I am sorry that I lost the thread. I am assured that I am on page 8. These notes are extremely useful.
I apologise to the noble Lord, Lord Clinton-Davis, for implying that he had not been an assiduous attendee. That was cheap. He asked a good question and I hope that I have now clarified it.
The point was that I was referring to the research that we had done. The consensus was that for the majority of offenders certain requirements are likely to be more punitive than others. As I said, the requirements they most commonly mentioned were curfews, other restrictions on liberty such as exclusion or prohibited activities, and unpaid work. That is why the Government expect to see an increase in those measures.
Finally, on Amendment 11, I am happy to reassure noble Lords that it is not the Government’s intention to detract from the court’s existing obligation to have regard to the five purposes of sentencing currently set out in Section 142(1) of the Criminal Justice Act 2003. If these provisions are agreed by both Houses, courts will continue to be required to have regard to all five purposes, whether that is punishment, rehabilitation, reparation, and so on. It will continue to be a matter for courts as to what weight they place on each requirement when sentencing a particular offender.
I remind noble Lords, though, that some purposes are likely to be more relevant than others for particular sentencing powers. For example, courts’ powers to discharge offenders absolutely or conditionally are predicated on the assumption that, in the circumstances of the case, it is inexpedient to inflict punishment. Similarly, while a fine can punish and deter an offender, it may do little towards the purpose of public protection. At the other end of the scale, I am sure that noble Lords will agree that for any offender, the deprivation of liberty that results from an immediate custodial sentence remains and represents a punishment.
In these examples, the nature of the sentence being considered may draw courts’ attention to some purposes of sentencing over others, but courts are still bound to weigh the relevance of all five purposes of sentencing. The same is true of these provisions. While courts will be required to determine whether the circumstances of the offence and the offender justify imposing a requirement for the purpose of punishment, they will still have to weigh this against the relevance of other purposes when determining the overall sentence. Nothing in this requirement prevents a court imposing a single requirement that fulfils multiple purposes of sentencing or imposing multiple requirements to meet multiple purposes.
I hope I have been able to reassure the noble Lord, Lord Rosser. I will of course read these debates carefully. I hope that noble Lords will read them, too, because they will find a recurring theme of flexibility and trust in the judiciary and its judgment which should deflect some of the worst fears that have been expressed about our intentions. Our intention is to carry forward a rehabilitation revolution and put effective community sentencing at the heart of that. I fully appreciate that this House, particularly in these two debates, has done its proper job of fine-toothed combing what we propose and seeking assurances about our intentions. I hope that, on reflection, noble Lords will feel that, as it will work and with the flexibility we are building in, some of their concerns are not justified. I hope that the noble Lord will withdraw his amendment.
Crime and Courts Bill [HL]
Debate between Lord Ponsonby of Shulbrede and Lord McNally(12 years, 5 months ago)
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Lord Ponsonby of Shulbrede
My Lords, I rise to support this group of amendments. Essentially, they are about monitoring the outcome of what has been the largest overhaul of the courts system for a long time. Many courts have closed and some have opened. Last Thursday, I went to the opening of the new Westminster Magistrates’ Court by the Lord Chancellor. It is a magnificent building and I hope that it will be a centrepiece of London justice for the next 100 years. While this is set for London, over the whole country—including London—there have been many closures of smaller courts, which mean we are moving away from the principle of local justice which is administered locally. The reasons for these sweeping changes should be monitored and that is the main purpose of this group of amendments.
I will now move to the idea of a single family court with a single point of entry. I understand that this change is generally welcomed by all those involved in the family court system. I will repeat a point that has been made before, that lay magistrates are looking for reassurance that they will continue to play an important part in the family proceedings courts. When I have raised this issue before, that reassurance has always been forthcoming from Ministers. I repeat that request today, although it will be in the details of the proceedings of the courts themselves—which I understand will be a separate Bill at a later stage—where the lay magistrates’ concerns will be most likely to get their reassurance.
Amendment 68A states:
“There shall be no restriction on the number of days that a family magistrate may sit in the family proceedings court”.
That is to meet the recommendation of the Norgrove report, as my noble friend Lord Beecham said. As the noble and learned Baroness, Lady Butler-Sloss, said, the main purpose is to increase flexibility and case continuity for repeat hearings. It is my understanding that it is for the Lord Chief Justice and Lord Chancellor to determine both the maximum and minimum amount of sittings by magistrates, and it is not a matter for primary legislation. I would argue that it is important that lay magistrates maintain their activities outside court and are not professionalised through excessive sitting. It is right that the route to appointment as a lay family magistrate is through the adult criminal lay Bench, as it is today. That should continue. I acknowledge that it is a conundrum to meet the needs which the noble and learned Baroness, Lady Butler-Sloss said, while at the same time maintaining a lay Bench which is genuinely lay.
There is an answer. These matters could be determined locally by bench chairmen and I understand that experienced family magistrates can choose to give up their adult criminal work, with the approval of their bench chairman. There are ways round these problems which can be administered locally. The purpose of this group of amendments is to look at the many changes and be reassured that the Government want to review them, write reports about them and keep an open mind about what they are introducing. I wholly support this aim.
Lord McNally
My Lords, I am very grateful for the opportunity to discuss these proposals. I should put on the record that Manchester United is in the borough of Trafford. It is very dangerous for people such as the noble Lord, Lord Beecham, to wander west of the Pennines with football knowledge: they are just not up to it.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Ponsonby of Shulbrede and Lord McNally(12 years, 8 months ago)
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Lord McNally
I wonder whether one reason why the Magistrates’ Association found itself alone on this is that most other penal reform organisations welcomed a proposal that will prevent people being sent to jail. One of the big arguments that we have had about the inexorable rise in our prison population over recent decades is over whether as a society we are too quick to send people to jail. The no real prospect of custody test simply asks, “If you are not going to imprison a defendant if he is convicted, why should you be able to do so before he has been tried?”.
The noble Lord, Lord Ponsonby, tabled amendments that would remove the no real prospect of custody test from some, although not all, of the places in Schedule 11 where it appears. Amendment 152JA would remove the amendment to Section 7 of the Bail Act, which applies to the test to bailed defendants who have been arrested for absconding or breaking their bail conditions. Amendment 152JD would remove the amendment that applies the test to defendants who have committed offences that merit summary imprisonment. However, for some reason the paragraph in Schedule 11 that introduces the no real prospect test for indictable offences is left undisturbed. Amendment 152DA removes the definition of custodial sentences that is relevant to the no real prospect test, but Amendment 152JB appears to remove a consequential amendment that is not directly related to the test.
The noble Lord spoke of the risks to the safety of the public, but how much of a risk is a defendant for whom it can be said that there is no real prospect of custody? We also heard about intimidation. However, as we mentioned, intimidating witnesses is an offence in its own right that is not only imprisonable but likely to result in a custodial sentence. A defendant who is not facing custody for their original offence would be foolish to put themselves at risk of receiving a far more serious sentence by trying to interfere with a witness.
We recognise that special considerations may apply where the circumstances of the offence suggest that there may be a risk of domestic violence. That is why we have included an exception designed to protect those who might be vulnerable in this way. This exception in new paragraph 15 of Schedule 11 would in fact be removed by Amendment 152JC. I do not understand why.
The noble Lord asked me a number of specific questions about the August riots, curfews and the need for sufficient information to be given. It would be fun for me to try to reel off answers from the Dispatch Box, but it would be better, and certainly safer for me, if I wrote to the noble Lord and made that reply available in the Library of the House. He can then contemplate what he will do at Third Reading.
I am not sure that the Magistrates’ Association is on the right path here. We think this is a sensible proposal for keeping people out of prison when it is not strictly necessary for them to be there. I will try to give the noble Lord answers to his questions, but in the mean time I ask him to withdraw his amendments.
Lord Ponsonby of Shulbrede
I thank the Minister for that response. I make the point that the Magistrates’ Association and every magistrate I have ever sat with do not want to put people in custody, and the whole purpose of my speech was to point out inconsistencies and a lack of clarity in these proposed changes. Nevertheless, I thank the Minister for offering to respond to my specific questions, and I beg leave to withdraw my amendment.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Ponsonby of Shulbrede and Lord McNally(12 years, 10 months ago)
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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.
Legal Aid, Sentencing and Punishment of Offenders Bill
Debate between Lord Ponsonby of Shulbrede and Lord McNally(12 years, 10 months ago)
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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.