Crime and Courts Act 2013 (Commencement No. 18) Order 2018

Baroness Vere of Norbiton Excerpts

Wednesday 9th May 2018 Grand Committee

Moved by

[Baroness Vere of Norbiton]

That the Grand Committee do consider the Crime and Courts Act 2013 (Commencement No. 18) Order 2018.

Relevant Document: 25th Report from the Secondary Legislation Scrutiny Committee

[Baroness Vere of Norbiton (Con)]

My Lords, the order will allow courts in England and Wales to impose what is called a stand-alone location monitoring requirement as part of a community sentence when it is considered to be proportionate and necessary to do so. In other words, an offender’s whereabouts could, for its own sake and for a specified duration of the sentence, be monitored through an electronic GPS tag fitted to their ankle. The offender’s location would be tracked by satellite using technology similar to that of a satnav or Google Maps. The tag will record the offender’s position and send that data at frequent intervals to a monitoring centre via a mobile network. The location data will be retrospective and monitoring will not be in real time.

The Criminal Justice Act 2003 already allows electronic monitoring to be used as part of a community sentence to manage a curfew or compliance with another requirement of the sentence, such as an exclusion zone. In practice, it has only been used in community sentences to monitor curfews through radio frequency technology; the GPS-enabled tags that are necessary to monitor an offender’s location are not currently widely available. That will change when the new electronic monitoring service that is being developed goes live in 2019 and GPS tags and the monitoring technology become widely available. The new service will begin on a date to be confirmed in the summer, following the conclusion of commercial discussions with providers.

This order, commencing a provision in the Crime and Courts Act 2013 to allow for a stand-alone location monitoring requirement to be imposed, provides courts and probation practitioners with an additional tool to help to manage offenders in the community. The approach that we are taking has been, and is being, piloted in specific geographical areas, commenced through a no procedure statutory instrument. This allows the Ministry of Justice and, separately, the London Mayor’s Office for Policing and Crime—MOPAC—to pilot the use of location monitoring. The Ministry of Justice pilot concluded in March this year and the smaller pilot being run in London by the Mayor’s office will come to an end in September 2019.

Findings from the independent evaluation of the Ministry of Justice pilot that concluded in March will not be available until the summer. Nevertheless, feedback from probation practitioners and offenders engaged in both pilots suggest that standalone location monitoring is a valuable tool. We believe that it will provide offender managers with information that allows more insight into offender behaviour, allowing for constructive conversations to take place to reduce the risk of reoffending, aid rehabilitation and help those they supervise to lead law-abiding lives. Let us say, for example, that a probation officer is dealing with a domestic abuse case where the offending behaviour is linked to gambling or alcohol. The location information may show the offender frequenting alcohol or betting shops and this would enable the probation officer to have a sophisticated and evidence-led conversation with the offender about their behaviour and take appropriate steps to address it.

Stand-alone location monitoring may also help to deter offenders from taking part in criminal activity through the prospect of discovery or by giving the offender an excuse to distance themselves from those with whom they might commit crime. In effect, this can offer offenders a fresh start away from the influences of crime. In some cases, it could also provide enough assurance to enable courts to impose a community sentence as an alternative to custody, leading to many of the benefits of rehabilitation that offenders may get from being with their loved ones or through employment in the community. Prior to the introduction of the new electronic monitoring service, the Ministry of Justice will take into account the lessons learned from the pilots and provide information to sentencers and those that advise them, such as legal advisers and probation court teams, on how to target the new location monitoring capability.

I recognise that during the passage of the Crime and Courts Bill that led to the 2013 Act, concerns were raised in your Lordships’ House about the potential for location monitoring to infringe civil liberties. Let me reassure the Committee that before imposing a stand-alone location monitoring requirement, the court must consider issues of proportionality and necessity, including any interference with Article 8 of the European Convention on Human Rights: the right to respect for private and family life. They must also have due regard to the five statutory purposes of sentencing: punishing offenders; reduction of crime; protection of the public; reform and rehabilitation of offenders; and the making of reparation by offenders. As they do now, the courts will continue to assess the suitability of any requirements for the offender, the seriousness of the offence and whether a community disposal is justified or imprisonment is warranted.

With regard to the processing of the offenders’ data in accordance with the Crime and Courts Act 2013, when commencing the legislation, my right honourable friend the Lord Chancellor and Secretary of State for Justice is required to publish a code of practice that sets out the expectations, safeguards and broad responsibilities for the collection, retention and sharing of information gathered on such orders. The necessary code was published in February this year, prior to laying this order before Parliament and after consultation with stakeholders including the police, probation, the Information Commissioner’s Office and the Investigatory Powers Commissioner’s Office. It has been written with the provisions of the Data Protection Bill in mind and its content will be reviewed once the Bill becomes law. In addition, all offenders who are given an electronic monitoring requirement will receive an induction when they are fitted with a tag to explain what is required and a fair processing notice setting out what will happen with their data.

Standalone location monitoring will provide courts with one more tool to help manage the risk of offenders in the community. The pilots have indicated the operational value that can be derived from location monitoring. When targeted appropriately, it should help rehabilitate offenders, reduce the risk of reoffending, protect the public and, in some cases, provide enough assurance to the court to impose a community sentence as an alternative to immediate imprisonment. I therefore commend the draft order to the Committee and beg to move.

[Lord Thomas of Gresford (LD)]

My Lords, I suggest that it is unwise to introduce this commencement order before the result of the pilots is known. I gather from what the Minister just said that the first pilot ended in March but its findings will not be available until the summer and that there is still a pilot operating within the City of London.

We are familiar with electronic monitoring. It has been used to date to ensure compliance by an offender with the terms of a community order, a suspended sentence or a licence to enable a prisoner to be released. Standalone monitoring of this sort is a significant step further. The proposal is to use GPS tracking to monitor an individual’s movements, not against the prohibitions that will be set out in a court order or on release on parole, but generally. It is therefore highly intrusive, as I think the Minister acknowledged in what she said. It goes beyond what is necessary for rehabilitation or the protection of the public.

That point is perhaps emphasised even more by what we were told: that the monitoring will not be in real time—I think I understood that—but be retrospective. In other words, it is not an immediate form of surveillance but means that a probation officer will look back to see what his client has been doing rather than keep a watch over him. It is perhaps less objectionable if it is not immediate surveillance, but it may be rather more effective to use the resources that will be involved in this new system for rehabilitation rather than for tracking offenders in this way.

If this statutory instrument were brought forward after completion, evaluation and publication of the pilot projects—because we have no idea of the results of those pilot projects—it would be possible to assess whether the right balance has been struck. What are the Government going to do to bring those results before Parliament and give us notice of them? Will they give an undertaking not to seek the approval of both Houses before that is done? Otherwise we are faced with the verdict first and the trial afterwards. We want to know what the trial says so that we can comment on it and see whether this statutory instrument should be opposed when it is brought before the House.

--- Later in debate ---

[Baroness Vere of Norbiton]

My Lords, I thank the noble Lords, Lord Beecham and Lord Thomas of Gresford, for their contributions. They raised a number of issues that I think are pertinent to the order that we are discussing. As I hope I mentioned in my opening remarks, feedback has already been received from the pilots that have already finished, and indeed the one that is ongoing, that the system does work and is useful for the task that has been set for it. The main feature now is for the Government to learn what they can about how the pilot operated and how to put that into the operations of the new system when it comes online next year.

A summary of the conclusions of the pilot will of course be made available. It is important that we look at this because, as the noble Lord, Lord Thomas of Gresford, pointed out, this is not surveillance and it is not real time, which would be far too resource-intensive. It is information that can be gathered and which allows probation officers and others to have a more informed conversation with the offender. The offender knows that they are being monitored. We believe that it will aid rehabilitation and it is my wish and my hope that it keeps some offenders out of prison, because in some cases that is certainly not helpful.

The noble Lord, Lord Thomas of Gresford, also mentioned the issue of timing. I am well aware that the results of the pilot are not available to us now, but we do know that the system works. We also know, as we spent most of yesterday discussing, that we are about to receive a tsunami of secondary legislation. It is therefore the department’s opinion that, if we lay this order before Parliament now, we can be confident that it will go through and become operational and that this is appropriate before Parliament’s mind turns to matters of a European Union nature and we are deluged with SIs from other areas. It also means that if we have an early decision in your Lordships’ House, that will give us plenty of time to liaise with the stakeholders—there are many in this system—and make sure that our plan for delivery is absolutely watertight.