Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Linklater of Butterstone Excerpts

Tuesday 20th March 2012 Lords Chamber

[Baroness Howe of Idlicote]

My Lords, I, too, welcome this proposal. All of us have been talking about this area for so long, it is not true. The point about action now, which was made by various speakers, is entirely right. My noble friend Lord Wigley has quoted a number of horrendous figures, which I will not quote again, but the fact that 5 per cent of women’s children stay in the family home should be enough to indicate just how disastrous the effect of imprisoning women is on family life and on the futures of those children.

I very much hope that the actions already begun by this Government, and those started under the previous Government, to do much more to keep women out of prison will continue, which is entirely the right way to work. There needs to be intensive work and support at differing levels, both at professional and volunteer levels, to see the women out of these crises. Women prisoners outnumber men who self-harm, have mental health problems and so on. The situation is horrendous.

Without overemphasising absolutely everything about this issue, I hope that all departments will come together. I want to see good examples of what can happen in a women’s prison, but I also want to see it as an example of what would be effective for a number of men as well, particularly young offenders. I hope that the Minister and all those involved in this issue will treat it with urgency.

[Baroness Linklater of Butterstone]

My Lords, I add my wholehearted support to what the noble Baroness, Lady Corston, and everyone else around the House, has said. There has been no dissent. How could there be? It struck me that the proportion of women in the prison system is roughly similar to the proportion of children. Those are our two most vulnerable groups and the groups for whom we do least well by and least well for. They are the most vulnerable and the most needy.

It is very nice to see the noble Lord, Lord Warner, in his place, because the previous time we worked together—I imagine that we are together on this—we were fighting to save the YJB. I remember saying then that we must not allow ourselves to think for one minute that children are small versions of adults. Their needs are so different. Women are not other versions of men. Their needs are also extremely different. When the noble Baroness, Lady Corston, was quoted as saying that these prisons were all designed for men, she was quite right; women were in no one’s mind. They suited, and that was where they were coming from. To imagine for one minute that we could stick women into similar institutions and do them any good was absolutely insane.

If we ever get to what the noble Lord, Lord Ramsbotham, suggested and have someone who is in charge of and leads the way in policy, organisation, delivery and practice for women, I hope that that person will be a woman.

[Lord Macdonald of River Glaven]

I rise even more briefly to support the amendment. I do not know of a single lawyer, prosecutor, judge or prison officer who does not believe that women’s prisons are full of people who should not be there and, worse, who are being further damaged by being held there. The scandal is that we have all known this for years. Ministers know it, but nothing is done about it. The amendment is a modest proposal in the right direction, and it has my wholehearted support.

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Moved by

[Baroness Linklater of Butterstone]

151A: Before Clause 60, insert the following new Clause—
“Awareness of sentencing options
(1) The Lord Chancellor shall, by regulation, promote arrangements to ensure that each Probation Trust provides adequate information about community sentencing provision to all magistrates in the area for which it has responsibility.
(2) Regulations under subsection (1) may provide—
(a) guidelines for liaison between magistrates and Probation Trusts;(b) a reimbursement scheme for magistrates expenses under paragraph (a); and(c) such other provision as the Lord Chancellor thinks appropriate.”

[Baroness Linklater of Butterstone]

My Lords, in moving Amendment 151A I shall speak also to Amendment 151B, with which it is grouped.

I am bringing back these amendments following the discussions on them in Committee, both because I believe them to be very important and because the amendment expresses a view shared by noble Lords from all around the Chamber without a single voice of dissent. They were views expressed by people of such knowledge and distinction that there was an obligation to try once more to persuade the Government of the importance of this case.

First, I thank those noble Lords who have added their names to the amendments, in particular my hero the noble and learned Lord, Lord Woolf, who was also poised to add his name to the list but was not allowed to do so. The Public Bill Office informed me that my list was already full—four names were all that were allowed—so my list has lost a little of its potential lustre. I regard the noble and learned Lord as being on my list in spirit if not in fact, and for that I am extremely grateful to him.

Although technically these are amendments they are in fact proposed new clauses, which do not amend but rather underpin the central objectives of this part of the Bill: to reduce the prison population and develop the use of alternatives to custody, and so reduce reoffending. I am a wholehearted and paid-up supporter of the Bill in these key respects, and I have worked all my life to promote the same objectives. They were also, of course, the core objectives of the Government’s policy as set out in the Green Paper. I regard these clauses as enabling ones, which ensure that the Government will achieve their objectives—and without which their success is far from being assured. Indeed, I believe that the Government need these clauses if they are to succeed.

In addition, the magistracy and the probation trusts, the organisations about which I speak, need these clauses as well. They are unequivocally in support of them because they know that if they are to be enabled to achieve their objectives, which are in line with the Government’s own, they too need them. I pay tribute to all the work that they do in their different ways. The magistracy is the bedrock of community-based justice—the representatives of our communities across the land, delivering justice locally. They are hard-working and dedicated, sustaining the peace of the realm within the law and all selfless, voluntary and unpaid. I was a magistrate once and I know how much it takes, in terms of not just time but care and effort, to try to get things right for the victims and the offenders, and for justice to be done. Their task becomes ever harder over time, as our society becomes more complex and difficult to navigate for so many.

By the same token, the work of the probation service has become ever harder but ever more necessary and valuable. As patterns of offending change and prison numbers rise, it has to provide the courts with pre-sentence reports, carry the challenging responsibilities of MAPPA and support offenders in the community, while facing more uncertainties about its own future as yet another review of its work and role is under way, causing anxiety all around. I have also been a fellow social worker—a childcare officer in my far-off youth—and my admiration for the work of probation is boundless. I also declare an interest as a patron of the old Probation Association. I know how much we all need those people, as they work at the interface of the courts and the community, protecting us as they work to reduce reoffending and meet the challenges of offenders.

These are the people who actually deliver the programmes that magistrates need, and they too are solid in support of these proposed new clauses. They know that statutory liaison is necessary to bring about the understanding by magistrates of the intricacy of what is provided in the community for the courts. From the distance of politics or non-penal worlds, it can perhaps be difficult to understand the subtleties of the relationship between these two organisations. The world of the courts is and must be at a certain remove from the day-to-day reality of the world of those who transgress and break the law, but that is where probation also operates. Good and valuable relationships can of course be, and often are, developed between individuals in both worlds. Yet you cannot conduct a system of professional interaction based on the arbitrariness of personal relationships. We discussed at Second Reading examples where we know that good liaison between probation and the magistracy frequently occur. However, we cannot deliver the sort of high-quality, highly professional service we need on that basis alone without communication and co-operation becoming uneven and patchy to the extent that we have seen happen since 2000, when the statutory basis for the relationship was abandoned. All high-quality, professional service must have a high-quality, professional structure within which to work. This is what these professionals want and it is what our communities need.

The magistracy has roughly 29,000 members and probation trusts nearly 12,000 probation officers and probation service workers, though these are slightly old figures—about 18 months old. These are dynamic institutions doing difficult, highly skilled, professional work, where change is an essential part of the progress. They must have a basic statutory basis on which to conduct their business and keep up to speed with each other. To leave it to a voluntary local effort is simply not in the nature of these national bodies. It is important that all magistrates—not just some eager ones—know what their local probation service is doing. Such is the pace of change that contact must be regular in order for everyone to be up to speed. Both parties in this area agree with that. For sentencers, this is important to be able to make properly informed disposals. Custody should never be used because a sentencer is not aware of a programme or a service which could have been a better alternative. This is sometimes tragically still the case today. While the pre-sentence report and information leaflets give a flavour, there is absolutely nothing to match or beat seeing and talking to the providers and the offenders. Quite simply, seeing is believing. This is not rocket science.

In Committee, the Minister said,

“unless we have public confidence in non-custodial sentences we will have criticism of them. We have to win that public confidence”.—[Official Report, 7/2/12; col. 170.]

How right he is. Where do we start? We start with the sentencers themselves, whose use of them will justify and develop confidence. As their own confidence grows, the more they learn. My noble friend also said that he was not aware of any obstacles to magistrates making regular visits. He is quite right; there are no obstacles. However, we need more than a mere desirable aspiration; we need a requirement, if all concerned are to understand the importance of visits and keeping abreast of current provision. I referred to the senior presiding judge’s recently revised protocol in Committee, which sets out voluntary arrangements for probation trusts, courts and magistrates. However, I am told by the Magistrates’ Association itself that, even where relations are very good, the involvement of all magistrates is “rarely achieved” and “aspirational”.

Lastly, magistrates’ expenses have in the past been a thorny issue. Expenses stopped in 2000 when liaison ceased to be statutory. I have already referred to the extraordinary and voluntary commitment of time, effort, skill and responsibility—on every level—of magistrates to their role on behalf of us all. These visits represent training over and above their duties and commitment. It seems petty and short sighted in the extreme to begrudge a bus or train fare, or petrol, to go and learn about a programme, which, if understood and then used, will save the community that proportion of the annual £40,000 cost of each prison sentence and will significantly increase the chances of reducing reoffending at a fraction of the cost while making our communities safer. That is an achievement which I think goes beyond price. My noble friend the Minister told us in Committee that Her Majesty’s Courts and Tribunals Service was “looking at” this issue, which suggests at least a recognition of the right way to proceed and where its duty lies. I hope I am right about that.

I believe that this proposed new clause is what the Bill needs really to succeed in its admirable core adjective. I know that my noble friend is expected to make no concessions beyond those already agreed but I also know that it is possible to keep her heart and mind open to argument—otherwise, what are we all doing here? My case is that this simple new clause is not an amendment to anything already in the Bill but would add something which endorses it and ensures that what it stands for is achieved: namely, a safer, more civilised society with less reoffending as a result of less imprisonment and more community disposals. I commend the new clause to the House.

[Lord Judd]

My Lords, I am very glad to support this amendment. The noble Baroness speaks with real experience because she has done a lot of front-line work in precisely this sphere in trying to bring the probation service and others together with magistrates and, indeed, judges. She is to be commended for that. She speaks in this House having done that.

I am glad that she took the opportunity to say a few words about the probation service. In my younger life, the probation service was one of the hallmarks of a decent society. It was a service in which people either had real, relevant experience of life and brought that to the service or had a good, sound, broad education to a high level and were able to bring that perspective to the work which they did. Ideally, it was a combination of both those things.

I am afraid that the probation service has been subjected to pressures and has been propelled towards becoming a sort of alternative to a custodial sentence. The old probation service concentrated on rehabilitation; it was not solely about punishing people. The sentence is the punishment. The people concerned have been told that they are being punished by society and are reported as such in the press. The task the probation service used to take on was that of helping the people concerned to become positive, constructive citizens. However, the service is now so harassed and pressed that it is very difficult to see how that work can properly be done at all, or whether indeed there is cultural leadership on what the task really is—let us be frank about that.

I cannot think of a more practical, sensible arrangement than to ensure that magistrates are not only encouraged but propelled, as it were, into meeting probation service staff, having discussions with them, obtaining information and seeing for themselves the reality of what the probation service does as part of their preparation for the work they will be doing in magistrates’ courts. Two things about magistrates are relevant in this context. I speak as someone whose mother was a magistrate and loved her work. One is that magistrates live in society—that is a strength—and are therefore bombarded by the popular press and everyone else with all kinds of prejudice and superficial judgments. To withstand that kind of psychological pressure, they need to have real exposure to and a real understanding of what is being done.

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[Baroness Linklater of Butterstone]

My Lords, I cannot thank everybody who has contributed to this debate warmly enough. It debate has raised many interesting, detailed elements; in particular, what the noble Lord, Lord Ramsbotham, was saying about the serious knock-on effect for the old relationship that the probation service had with its community after it came under the umbrella of NOMS. The example of Lindholme indeed merits some careful examination.

I am grateful to the noble Lord, Lord Ponsonby, for making reference to other statutory arrangements. As I understood it, my amendment was to recreate the very effective statutory liaison which existed previously. There was a reality to the liaison until 2000. This needs looking at again. I understand the point made by the noble Baroness, Lady Howe, about the worrying nature of the Carter report. I hope that it has, as it were, melted away. I must, as always, thank the noble Lord, Lord Judd, for his incredibly enthusiastic and good comments on this subject which are very heart-warming.

The Minister made some promises. I do not know to what extent they will make a difference, but just as I have encouraged her to have ears to hear, I had better have some ears to hear myself. I was minded to divide the House at this point but I do not think it would be proper until I have learnt a little bit more about what her promises mean. I will indeed return and look at this again, but for the time being I beg leave to withdraw the amendment.

Amendment 151A withdrawn.

Amendment 151B

Moved by

[Baroness Linklater of Butterstone]

151B: Before Clause 60, insert the following new Clause—
“Short prison sentences
A court may not pass a sentence of immediate imprisonment for a term of less than six months unless it considers that no other method of dealing with the offender is appropriate, and must state the reasons for its opinion in open court in accordance with the provisions of section 174 of the Criminal Justice Act 2003 (duty to give reasons for, and explain effect of, sentence).”

[Baroness Linklater of Butterstone]

I am sorry, my Lords—you must be getting very bored with the sound of my voice. I move on briefly to the second, connected clause, which is about the presumption against short sentences.

The presumption against short sentences carries with it the expectation that low-level offending will receive an effective community sentence which is designed to address the causes of offending behaviour and to emphasise that it is in this category that reoffending is the highest of all. This is the greatest area of sentencing failure in this country today, contrary to the central goal of government policy which is to reduce reoffending. There may, of course, be times when a short prison sentence has a place. An example might be when an offender is constantly breaching a non-custodial order and the magistrates feel that they are left with no option. Or it may give the victim of an offender a brief break from the hell of a violent partner and the chance to make changes to her life in the breathing space. These are legitimate but there should be a presumption against these short sentences which is not the case at the moment, as witnessed by the 38,000 sentences of three months or less in the year up to March 2011. That is an astonishing figure; these cases should be the exception and not the rule.

I suggest that we should follow the example of Scotland, where Section 17 in Part 1 of the Criminal Justice and Licensing (Scotland) Act 2010 is entitled, “Presumption against short periods of imprisonment”. Subsection (3A) states that a court,

“must not pass a sentence of imprisonment for a term of 3 months or less on a person unless the court considers that no other method of dealing with the person is appropriate”.

This is a proper model to follow.

Many of these sentences are for women, as noble Lords mentioned in our debate on the previous amendment. They are just enough to do disproportionate damage to children, families, jobs and housing, and to the ability of chaotic, vulnerable people who commit minor offences to keep their lives together at all.

Imprisonment results in even greater chaos to the community, which then has to manage that chaos and to deal with the inevitable reoffending, whereas preventive, effective work through community disposals is far more likely to effect change and make people face up to the causes and effects on others of their law-breaking behaviour. Short prison sentences do absolutely nothing to address offending behaviour. No provision exists during or after imprisonment—hence the reoffending results, at great and disproportionate cost to the community.

It is also worth re-emphasising that where communities want and need to demonstrate toughness in punishment, community sentences are the tough option—and are seen as such by offenders. It is much tougher to be made to face up to what you have done, and why, than to sleep away your sentence in a prison cell; and to learn about the consequences of your behaviour and be made to put something back into the community, for example by doing unpaid work.

An inquiry chaired by Peter Oborne and commissioned by an organisation called Make Justice Work, which is doing a lot of effective work in this field, highlighted how effective community sentences were seen to be by offenders, as well as how much more successful they were at tackling reoffending. This ties in with my earlier remarks about magistrates knowing what community sentences are like. If properly informed, they will be at the front line of awareness of the quality of the programmes, and of what works and is being well done, which will ensure that standards are high. I greatly welcome the Government’s plans to start a consultation on the effectiveness of community sentences, and I look for reassurance from the Minister that a presumption against short sentences will form part of the framework of their thinking.

The second reason that I return to this subject is the need for sentences to come with an explanation in court of the exact reasons for a disposal—and in particular, where the threshold for custody comes in a case, and precisely why and how the threshold has been passed so that a community penalty has become inappropriate. Perhaps the Minister will confirm, following a letter of 15 March from the noble Lord, Lord McNally, whether under new Section 174, to be imported under Clause 61 of the Bill, the sentencing judge or magistrate must explain to a person sentenced to less than six months in prison that,

“no other method of dealing with him is appropriate, and give reasons, including how the custody threshold has been reached, for that conclusion, whether to him if he is present or under rules made in accordance with government amendment 152ZA”.

I am quoting from the letter. If this is the case, that amendment will be welcome, since previous legislation did not require the degree of clarity and explanation that I sought. I look forward to the Minister’s reply and beg to move.

[Baroness Northover]

My Lords, Amendment 151B, moved by my noble friend Lady Linklater, relates to the imposition of short custodial sentences. It would place a duty on a court to consider all alternatives before imposing a short custodial term. The amendment would also require the court, when imposing a short custodial sentence, to explain why alternative sentences were not considered appropriate.

As my noble friend Lord McNally said when the amendment was debated in Committee, we completely understand the argument of the noble Baroness, Lady Linklater. We agree that short custodial sentences can be less effective than community sentences in tackling reoffending. The Government looked closely at community sentences and intend to consult very soon on ways to build greater confidence in their use. Our payment by results pilots are also looking to support offenders who are released from short custodial sentences.

As the Minister also said, a duty already exists in current law. I urge my noble friend to look at Section 152 of the Criminal Justice Act 2003, which was passed by the previous Government and places restrictions on courts imposing discretionary custodial sentences. It states:

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

That provision applies to all courts that are considering a custodial sentence of any length—not just a sentence of less than six months, to which the amendment is limited. The issue of short custodial sentences has been discussed in Scotland. My noble friend made reference to Scottish legislation. The new Scottish provisions are less onerous on judges than the existing law in England and Wales that I have just explained.

The current requirement on courts considering a custodial sentence is more wide-ranging and onerous than that contained in the amendment. I understand the intention behind it, but I hope that I can reassure my noble friend on this point. I hope that she will feed into the consultation on how to make sure that what is already in law is used as widely as possible. The law is as she wishes it; we need to ensure that it is fully understood and delivered. On this basis, I hope that she will withdraw her amendment.

[Baroness Northover]

I thank my noble friend for those points, and will write to him with details on them. He may wish to feed in to the consultation on the matter.

[Baroness Linklater of Butterstone]

I thank my noble friend for answering my short remarks. I will go away to think a little more. In the mean time, I beg leave to withdraw the amendment.

Amendment 151B withdrawn.

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[Baroness Howe of Idlicote]

My Lords, what the noble Lord, Lord Ramsbotham, has outlined as a beginning is a very important thought for the Minister. I hope that he will be able to adopt it. We all know what goes on in prisons with young people. We all know, and now all pretty well agree, that, early intervention, even in a prison situation, but preferably even earlier so that that does not happen, will in the long run save money. The flexible way in which what is proposed has been outlined allows the Minister to organise it in such a way that it can take account of the actual age of the individual. That will be a very good step in the right direction, whether or not it can be written into law. We have plenty of things to try to add to the law in addition to the ones on the agenda. I hope that it will be taken very seriously and that practical steps will be taken.

[Baroness Linklater of Butterstone]

My Lords, I rise very briefly to endorse every word that the noble Lord, Lord Ramsbotham, has said. How much it resonated with me. The older end of YOIs are famously inadequate and have been so for some time, no doubt partly because they are also a famously difficult group. The noble Lord, Lord Ramsbotham, highlighted the fact that these are very often young people in transition. Transitions are difficult and absolutely awful to go through. I have always said that I am never off my knees in gratitude that I will never have to be a teenager again. There is merit in the idea that they could be, as it were, somehow incorporated—that, if the arms of the YJB became wide enough, they could encompass them in some way. I am not entirely sure how much the YJB is in favour of such a proposition, but maybe there are ways of choreographing that. However, I have simply risen to say that the noble Lord, Lord Ramsbotham, has put his finger on a very real and challenging problem.

The other day, I was visiting Merseyside Probation Trust, which is doing an incredible range of first-class work. Its IACs—intensive alternatives to custody—are particularly impressive. I spent some time with one girl who had been through it. She had form like you had never seen and she came singing the praises of the person from the probation service who had been working with her through this process. It was truly worth while in that case. Maybe it is very expensive—it is certainly very time intensive—but it is something that I, along with what the noble Lord, Lord Ramsbotham, want to endorse.

[Lord Ponsonby of Shulbrede]

My Lords, as I sit as a magistrate in both the youth and adult courts, I make one simple point. In the youth courts, we routinely say to youths, “You must behave. If you do not behave, you may come back to the adult court and of course that is a much more serious matter.” What we do not tell them is that the reason that it is a much more serious matter is because there is much less support for them in the adult court system. Everything that the noble Lord, Lord Ramsbotham, said is absolutely right. We see a huge, disproportionate, number of young men from 18 to 24 years old. There are attendance centres, which do good work. I have been to a number. However, it is very minimal compared with the support that this group needs.