Crime and Courts Bill [HL]

Debate between Lord Rosser and Lord Woolf

Monday 10th December 2012 Lords Chamber

[Lord Rosser]

My Lords, we have an amendment in this group. It is interesting that the Government’s response to the consultation on effective community sentences states:

“We will legislate to place a duty on courts to include in the community order a requirement that fulfils the purpose of punishment for the offender. The court will be able to exercise this duty by imposing a fine instead if it considers that to be appropriate. While we will not specify what requirements courts should impose, on the basis that what is punitive for one offender may not be punitive for another, our expectation is that these would generally be restrictions of liberty that represent to the public a recognisable sanction (such as curfews, exclusion, or community payback). The duty will provide for an exemption in exceptional circumstances where it would be unjust to impose a punitive element”.

The Government’s response refers to restrictions of liberty such as curfews, exclusion or community payback. The use of the words “such as” implies that a court could impose other requirements that would be regarded as restrictions of liberty. Can the Minister confirm if that is the case? What might the other restrictions of liberty be that would be regarded as punitive? Will he also confirm that if a court imposed as a punitive element something other than a curfew, exclusion, community payback or a fine, that would not be regarded as acting outside the terms of this Bill?

The Government’s response to the consultation on effective community sentencing also refers to a punitive element being a restriction of liberty that represents, to the public, a recognisable sanction. Who is to determine what represents to the public a recognisable sanction? Will it be for the court to decide? If it decides that a punitive element is something other than a curfew, exclusion, community payback or fine, will the court, whether the original court or an appeal court, be regarded as having acted outside the terms of the Bill?

Even the Government’s own response to the consultation states that nearly all respondents indicated that offenders with mental health issues should be excluded from a mandatory punitive element and that many suggested that offenders with learning difficulties, those unable to carry out a punitive requirement because of poor health or addiction, those with personality disorders and young adults with low maturity should also be excluded. Does the Minister also hold that view, and would the number of such offenders exceed the 5% that it has been widely suggested would be the percentage the courts might feel able to regard as covered by the definition of “exceptional circumstances” laid down in the Bill and thus exempt from the Government’s definition of a punitive element?

One rather assumes that the Government’s approach is conditioned by the kind of recent statement made by the Secretary of State for Justice, that he shares public concern that offenders given community sentences often feel they are getting away with it; that they have been slapped on the wrist rather than properly punished. However, if that is the case, who is it giving that impression to the public other than politicians who make statements like that rather than spelling out just what a community sentence is? Two-thirds already include a punitive element, on the Government’s apparent definition.

Published research on short custodial sentences found that many prisoners preferred short sentences over community sentences because they found the latter more challenging. Does the Minister agree or disagree with those findings by the Howard League? Why does he take the view that a rehabilitation element in a community order cannot be at least as challenging to an offender, if not more challenging, than the Government’s version of what constitutes a punitive element?

For someone who has an addiction, learning difficulties or low maturity, or has led or been allowed to lead a thoroughly dysfunctional and disorganised life, having to face up to the realities of their lifestyle or situation through a challenging programme that they have to attend at specific laid-down times as instructed and co-operate with, or else risk being taken back to court and sentenced in another way, is at least as difficult as doing community payback or paying a fine related to their means. Yet that apparently is not the view of the Minister. Perhaps he could explain why that is not his view. I hope that he will be able to get a bit further than telling us it is because that is not the view of the tabloid press.

If the current position were changed and virtually all community sentences included a punitive element along the lines that the Government appear to be trying to enforce, does the Minister accept that that could be at the expense of rehabilitation elements in a community order? If a punitive element had to be included in an order that currently incorporates what the Government regard as only a non-punitive element, will the Government be providing additional resources to the probation services to cover the cost of this additional requirement, or will probation service budgets be left as they are so that, in order to remain within budget, those services may have to drop the rehabilitation element from the order to enable the cost of the additional punitive element to be paid for within the laid-down budget? What reassurances can the Minister give that this will not happen? The loss of the rehabilitation element in the order where deemed necessary will not contribute anything towards reducing reoffending.

The fact that the Minister does not appear to regard community order requirements involving challenging programmes for rehabilitation as at least on a par, in terms of restrictions on liberty and difficulty for offenders, with unpaid work in the community, a curfew or a fine—which are about the only things the Minister regards as in any way imposing a restriction on liberty—is a step backwards and simply seems to confirm, not challenge, the view that community orders are “soft”. Where unpaid work, a curfew or a fine is appropriate, that is what the offender should be given, but not where it would be inappropriate. The reality is that the Minister has decided that in some 95% of cases involving a community order as a sentence, unpaid work, a curfew or a fine is appropriate. It is usual to hear the facts of a case before coming to a conclusion on what is the appropriate sentence, but that is not what the Government are doing as they seek to specify what must be included in a community order in 95% of cases.

The Government appear to have lost confidence in the courts at a time when crime is falling, without explaining why, other than their own unwillingness to challenge the perception they believe the public hold that current community orders are soft. The reality is that the most important thing the public want to see delivered by a sentence is a reduction in reoffending, and an end to reoffending by the offender. I hope that even at this late stage the Minister will be prepared to change his stance, or at least review it, and support my amendment, which includes a range of existing programmes and orders as being within the Government’s punishment requirement in the Bill.

[Lord Woolf]

My Lords, I have difficulty with these provisions, for very much the same reasons as my noble friend Lord Ramsbotham and the noble Lord, Lord Rosser.

I have put forward amendments myself because I feel that if we are not going to have the clean solution proposed by the noble Lord, Lord Ramsbotham, of just getting rid of these provisions—which would certainly achieve everything I want—we have to try more delicate and specific surgery to produce something that the courts can apply practically. To an extent, the amendment in the name of the noble Lord, Lord Rosser, helps in that regard, so as an alternative I would be prepared to accept that.

To clarify my reasoning, proposed new subsection (2A) of Section 177 of the Criminal Justice Act 2003 reads:

“Where the court makes a community order, the court must … include in the order at least one requirement imposed for the purpose of punishment”.

Whether the requirement is imposed for the purpose of punishment or for some other purpose is presumably to be decided by the judge. Under our law, once a person has been convicted, it is the judge’s task to decide what punishment is appropriate. If he comes to the view that it does involve punishment, I would like the Minister to confirm—if I am correct—that the view of the judge will be respected and it is not suggested by the Government that that is a matter with which a higher court would interfere. On the other hand, if that is not so and the decision as to whether the requirement has been imposed for the purposes of punishment is to be made objectively, I would like the Minister to assist me as to what criteria it is to be judged by. If I were that judge, my ordinary reading would be that as these community sentences are imposed as part of the sentencing process, they are all part of the punishment that the court considers appropriate.

My general contention is that we have to have clarity as to what is to happen. Assuming what I have said is not right, who determines the punishment? Does the defendant who is banned from attending a football match determine it or does the court? I am happy to see that the Minister may well be agreeing with me—at least on that matter—but if it is the court, that must be clearly set out.