Crime and Courts Bill [HL]

Lord Rosser Excerpts

Tuesday 30th October 2012 Lords Chamber

[Lord Rosser]

Today, as the Minister has said, is in fact a Second Reading debate on the Government’s latest additions to the Crime and Courts Bill. The new schedule and clause, entitled “Dealing non-custodially with offenders”, cover a number of proposals and changes—namely, a punitive element to every community order, restorative justice, pre-sentence information sharing, information on offenders’ assets and financial circumstances, the removal of limits on compensation orders for adults and location tracking for the electronic monitoring of offenders, although the reliability, effectiveness and cost of using the equipment involved for such location tracking is as yet far from clear. On the other side of the coin, the Government’s proposals are either silent or relatively so on the provision for young adults, women and vulnerable offenders. No doubt at some stage the Minister will explain why this is the case.

I want to direct most of my comments to the introduction of a mandatory punitive element in every community order. The Government’s heavily trailed proposals for “tougher” community sentences have been delayed even longer than anticipated by the departure of Mr Clarke as Secretary of State at the Ministry of Justice and his replacement by Mr Grayling, a person adjudged to be more in tune with the heartbeat of Conservative Members of Parliament and Peers on law and order issues.

What, then, do the proposals add up to? Put simply, that appears to depend on the extent of the freedom, or lack of it, that courts are given to decide how to interpret them if they become law. The Government are seeking to make it mandatory for a court to impose at least one punitive element or a fine or both when sentencing an offender to a community order. For example, a punitive element could be unpaid work or electronic tagging and a curfew.

Having made it mandatory in one part of their proposals, in the next part, the Government then say that does not apply where there are “exceptional circumstances” relating to the offence or to the offender which would make it “unjust” in all the circumstances to impose a community order with a punitive element or fine. It is a bit like having an each-way bet. It seems that guidance on what is meant by “exceptional circumstances” will be given, among others, to the Probation Service, which draws up reports for the courts with recommendations on sentencing offenders who are being considered for a community order. It is not clear who will be drawing up this guidance, how prescriptive it will be or what will be the size of the Secretary of State’s personal footprint that will be stamped on the guidance. I hope that the Minister will be able to enlighten us on these points when he responds.

The Government say that they do not want to tie the hands of the courts. Clearly, at the very least, they want to give the appearance of telling the courts that they have often got it wrong up to now in their community order sentencing and how they must act in future. Currently some two-thirds of community sentences provide for what is considered to be a punitive element and often a rehabilitative element as well. The remaining third provides for measures designed to help rehabilitate an offender and/or for supervision by the Probation Service, but do not contain a punitive element because the courts have not considered that appropriate. Victims and communities, say the Government, want to see a punitive element in any community sentence, and that is why they are proposing to put a mandatory requirement, except in “exceptional circumstances” on the courts to impose a punitive element, or a fine, or both, in any community order.

Can the Minister confirm that this means that he and his ministerial colleagues in the department are telling the courts that in nearly a third of cases involving a community order they have been getting their sentencing wrong? Or is it the Minister’s view that things will continue much as they are now because “exceptional circumstances” may well continue to be found by the courts in almost a third of cases?

Most surveys show that the main thing most victims and communities want is some assurance that action will be taken to minimise the likelihood of the offender reoffending. On that score, the Government’s proposals contain very little. There are plans to extend restorative justice which we support, but this is dependent on the victim or victims and offender agreeing to such a step, which may or may not lead to a lesser penalty being imposed by the court. It would be helpful if the Minister could say what increase the Government are expecting in the number of cases dealt with in this way, what resources will be made available and at what cost, since disposal effectively of cases in this manner is likely to be resource-hungry.

The new Secretary of State has made it clear that his proposals for mandatory “tougher” community sentences, which can already be imposed by the courts, if they think fit, under existing powers, are not intended to be used as an alternative to short prison sentences of a few months. All the evidence shows that those are the least effective sentences in terms of reducing reoffending, which is what victims and communities really want to see achieved. So it would appear that the Government’s proposals will not reduce costs or the prison population, but rather, with the emphasis on extended mandatory requirements, would, if actually implemented, increase costs without necessarily impacting positively on reoffending.

One question is whether the Government’s real intention with the amendments is to impose tougher sentencing on the courts for community orders with the emphasis on a mandatory requirement on punishment and very little said on rehabilitation. Alternatively, is the intention to give the impression that this is the case for the benefit of the Conservative right wing and the right-wing media, while in reality continuing to leave it to the courts to decide the appropriate balance between punishment and rehabilitation in a community order, as they do now? No doubt, the Minister will clarify the position on this point, as that is surely one question to which the noble Lord must know the answer.

When considering community orders, a further issue is the role of the probation service in the management and supervision of offenders. What role do the Government see the current probation service playing in the future and in what format? In what areas of activity will the probation service continue to undertake the work itself and in what areas of activity will other organisations in the private and voluntary sectors be taking over the responsibility?

The new Secretary of State has come from the Department for Work and Pensions, which seems quite keen on the commissioner-provider split. Is that now the road that the Secretary of State intends to go down with increasing vigour as far as the management and supervision of offenders, and the future role of the probation service, are concerned?

We know that the Government lay some emphasis on what they describe as payment by results as an approach to engaging organisations in work with offenders. There is a danger that there is a lot of payment and not much in the way of results. Pilot exercises have been undertaken and perhaps the Minister could talk about the outcomes of these exercises and whether they have been completed as intended. If the Government’s view is that the courts have not been sentencing appropriately in one-third of community orders because no punitive element has been concluded, what benefits do the Government see arising from a punitive element now having to be imposed?

Most offenders have one or more issues that need addressing or taking into account in sentencing, ranging from mental illness or disorder of varying degrees of seriousness to significant housing, drug, substance or alcohol problems, learning disabilities and low educational achievement, being stretched financially or having primary care responsibilities. In a number of cases, these problems, allied to considerations of the circumstances and nature of the offence, may make a punitive element inappropriate. Based on their own research, what view do the Government have of the percentage of cases involving community orders that might be covered in future by whatever definition the Government intend of “exceptional circumstances”? Is it the Government’s view that a punitive element in the third of community order cases that currently lack such a provision will reduce reoffending in these cases or is this new provision being primarily designed to meet the Government’s view of what victims and communities want? As it is, we now already have a new requirement that where a community order is made by a court, a £60 victim surcharge will also be payable by the offender.

Debates in Committee and on Report will provide an opportunity to probe in more detail the thinking, reasoning and hard evidence behind the Government’s proposals and the impact that they are likely to have on reoffending, victims, the prison population and costs. The proposals indicate a considerable lack of confidence by the Government in the judgment of the courts to get the balance right between punishment and rehabilitation when imposing community orders. The mood music of the proposals on community orders, taken as a whole, is that of a one-club approach of being more punitive in future with new mandatory provisions, in contrast to the relative lack of emphasis, and certainly no mandatory requirements, in relation to rehabilitation.

If that is the Government’s instruction, through this Bill, to the courts, the outcome may well be less provision in community orders in future on rehabilitation or non-punitive elements as a means of reducing reoffending. Perhaps the Minister would confirm that such a development would be in line with the Government’s thinking on community orders in future. Many who appear before the courts need to be punished in clear and unequivocal terms for the offences they have committed. Equally, for others, that may not be the appropriate road to go down when there is evidence that the prospects of reducing reoffending would be maximised through addressing the causes of their offending with challenging sentence requirements. We will keep an open mind at this stage on the Government’s proposals, which have only recently been published, and we wait to see if the Minister can address some of the concerns expressed.

--- Later in debate ---

[Lord McNally]

All is now clear. Yes, we have to accept these amendments but they are then subject to amendment at the next stage. They have to be in the Bill to allow us to proceed; otherwise we will still have a blank page.

[Lord Rosser]

As long as we are clear—I think we are; and I am not accusing the Minister of being otherwise —that, whatever happens now, if the amendments are in some way agreed, it will be open to us to have effectively a Committee stage next month where amendments to these government amendments can be put down, debated and voted on, if votes are called.

[Lord McNally]

I can absolutely give those assurances. The clerk advises me, and I am sure she is right, that if we did not move the amendments we would have a blank page. Your Lordships will then have something to put amendments to, so that we can have a proper Committee stage with amendments.