Offender Rehabilitation Bill [HL]

Lord Williamson of Horton Excerpts

Tuesday 11th June 2013 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, this amendment, in my name and that of my noble friends Lord Dholakia and Lady Hamwee, builds upon the general principle embodied in Section 152 of the Criminal Justice Act 2003, which is, in the words of the section, that:

“The court must not pass a custodial sentence unless it is of the opinion that the offence, or … offences … was so serious that neither a fine alone nor a community sentence can be justified for the offence”.

That is a sensible principle that is soundly based on the wealth of evidence that short sentences are not only unhelpful but in many cases profoundly damaging. That evidence has been commissioned by the Howard League for Penal Reform and by many others. The findings are well known to the House. Short sentences are disruptive. They cut offenders’ ties with their communities, with their jobs if they have them, and with their families. They introduce offenders, particularly first-time offenders, to a culture where reoffending is the norm.

It is of course to be hoped that the impact of this Bill will reduce the reoffending rates of this cohort of prisoners by introducing periods of supervision, but balancing a hoped for mitigation of damage against the evidence that we have of actual damage still leads to the conclusion that short sentences are to be avoided.

Our amendment goes a stage further than Section 152 and is an attempt to address the risk that was identified by several noble Lords at Second Reading. The risk is that the availability of short sentences of imprisonment that will carry an automatic period of supervision upon release will make short sentences more attractive to sentencers. The point was put succinctly in particular by the noble and learned Lord, Lord Woolf, who said:

“The Bill will create problems, as has already been indicated, as there will be a temptation in some courts to undermine the objective of the Bill by seeing the proposals for dealing with reoffending as justifying short sentences”.—[Official Report, 20/5/13; col. 653.].

A little later he said:

“What can be achieved by a short sentence in prison can always be better achieved, in my experience, by a community sentence”.—[Official Report, 20/5/13; col. 654.]

The existing provision in the Criminal Justice Act deals with the seriousness of the offence or offences. The suggested provision in our amendment would make it very clear to sentencers that the availability of a period of supervision should not lead to or encourage the imposition of short sentences. The court would have to be satisfied not only as to the seriousness of the offence or offences themselves but that there were special reasons to justify a custodial sentence, and those reasons would have to be stated in open court. The principle would be strengthened that short sentences are to be avoided unless they are really necessary in an individual case. I beg to move.

[Lord Williamson of Horton]

My Lords, I have a favourable approach to this amendment, which would be a substantial change in practice. However, it is important that we do not present the question of short custodial sentences and community sentences simply in terms of hard or soft sentencing, although that is what actually happens in the media comment on some of these issues. For me, the real question is what arrangement is more likely to protect the public against continuing crime. That is the issue that we face in this amendment. At present, we have short custodial sentences, which do of course protect the public for a short period, but because the reoffending rate is high we also have periods when the public are not protected because we get a continuation of crime. The question is: can we do better?

The amendment does not take away the power of a court to impose a short custodial sentence where there are special reasons for doing so. Like the noble Lord who presented the amendment, I think that part of it is well drafted and correct and that we should concentrate on the special reasons. Furthermore, it requires the court to explain its decision in such cases. Over a period, such explanations will provide a good basis for assessing the effectiveness of the proposals. It is certainly possible—in my view, probable—that the proposal in the amendment, with a presumption for community sentences, will reduce crime and thus benefit law-abiding citizens. Therefore, I have a favourable presumption for the presumption.

[Lord Dholakia]

I am delighted to support this amendment, which sets out a new clause before Clause 12 and deals with the presumption in favour of community sentence orders, as has been rightly pointed out. This is very much a probing amendment to see how the Minister will react. I will be brief. My noble friend Lord McNally, the Minister, is aware that every time we have discussed legislation on sentencing, particularly lower-level sentencing, I have advocated a cautious approach in favour of community sentence orders in place of custody.

Prison sentences of less than 12 months are the argument that we are putting forward. We all know that under the present provisions, custodial sentences of less than 12 months achieve very little corrective behaviour. On the contrary, we have seen that the impact on an individual without supervision can be very damaging indeed. We want to avoid this risk. Our amendment would help guard against the risk that the welcome provisions of the Bill for post-release supervision for short-term prisoners could lead to the courts imprisoning more people. At present, courts may decide in borderline cases not to imprison an offender because supervision in the form of a community sentence is more likely to divert him or her away from offending. However, with the new supervision arrangements, the court might feel that by imprisoning the offender for a short period it can get the best of both worlds—both the punitive impact of imprisonment and supervision of the offender when he or she is released.

We have discussed similar provisions in previous legislation. The custody plus provision that we introduced at one stage is history now, but we know what happened to it. This would be a short-sighted view as even a short period of custody can lead to an offender losing accommodation and a job and fracturing family links, all of which make it more likely that he or she will reoffend, which is contrary to the provisions that we will discuss in our debate on rehabilitating offenders. Sentences of less than 12 months are too short for a sustained attempt at rehabilitation in custody but are long enough to damage the community ties which those supervising offenders can build on in trying to prevent them reoffending.

There has been a dramatic increase in the number of options available to the courts when dealing with offenders. We know about simple things, such as matters of conditional discharge and fines. There are also community service orders, probation orders and attendance orders. These are just a few of the alternatives, yet prison remains at the heart of our criminal justice system, with other penalties often referred to as alternatives to custody. I believe that my noble friend Lord McNally is on the right track in the way in which this Bill deals with rehabilitation. He is right in putting the emphasis on society to try and deal with more offenders in the community rather than in prisons. That is not in doubt. We are now seeing the impact, which is less use of prison and a drop in the crime rate—a remarkable achievement by the coalition Government. No longer does the argument apply that prison works.

We are not suggesting that grave offences should in general attract other than long sentences, but past experience has led us to believe in two important principles of sentencing. This is not original, radical or revolutionary. In essence, it fits in with many Court of Appeal judgments over the years. First, the court should send to prison only those whose offending behaviour makes any other course unacceptable. Secondly, those who are sent to prison should stay there no longer than is strictly necessary. The amendment is designed to meet the Government’s objective on matters of rehabilitation. We should do this by avoiding the unintended increase in prison sentences. This would be an important discipline that would help against that unintended consequence. This probing amendment would make it possible for my noble friend the Minister to discuss the merit of our proposal with the Sentencing Council and to examine the possibility of setting up some indicators so that the process is adequately monitored.