Crime and Courts Bill [HL]

Lord Clinton-Davis Excerpts

Tuesday 13th November 2012 Lords Chamber

[Lord McNally]

Yes, of course, judicial discretion should remain. But what I do not want to do from this Dispatch Box is give the impression that on the one hand we are saying down the corridor and on public platforms that we are going to make punishment a key part of giving credibility to community sentences, and that on the other hand the House of Lords is giving a nudge and a wink that actually the judiciary can do what it wants. That would be wrong. I hope that a learned judge, on seeing an exceptional case that needs that kind of judgment, would exercise that judgment. But I hope also that judges will see it as exceptional and not applying to a third of the cases before them. I hope that that is a sufficient assurance for the noble and learned Lord.

Community orders can, in the right circumstances, be highly effective at tackling the causes of offending. The Government are very clear that we need to build on the reductions in reoffending rates in recent years. That is why the Government are proposing to retain Section 148(2)(a) of the Criminal Justice Act 2003, which provides that the requirement or requirements imposed as part of a community order should be those that are, in the court’s opinion, most suitable for that offender. That should provide reassurance on the point that the noble and learned Lord, Lord Woolf, has just made. I would also draw noble Lords’ attention to Section 177(6) of the Criminal Justice Act 2003, which requires courts to consider, when imposing two or more community order requirements, whether they are compatible with each other given the circumstances of the case. Again, the Government do not intend to change that requirement.

In short, these provisions will not prevent courts from imposing requirements that are focused on the offender’s rehabilitation or from imposing a combination of requirements that is most suited to the offender’s needs. While accepting the spirit in which Amendments 3 and 8 have been tabled, I believe that existing statutory frameworks already provide adequate safeguards.

Amendment 3A would change the nature of the punitive element provision so that the courts would be required only to impose a requirement that delivers both punishment and rehabilitation. It is of course true that many of the community order requirements can deliver two or more of the purposes of sentencing. If a court wishes to impose a sentence that delivers both punishment and rehabilitation, choosing a single requirement that delivers both is one possible option—but so is combining a punitive requirement with an additional requirement, ensuring, of course, that the total weight of the sentence is proportionate to the seriousness of the offence.

The noble Lord, Lord Rosser, made a specific query about the example I gave. In theory, a single requirement, activity or programme along the lines that we talked about could fulfil this duty if a court felt it was appropriate for that particular offender. However, there will also be occasions where the court may decide that a purely or primarily punitive requirement is an appropriate response to a particular offence. We would not wish courts’ discretion to be limited so that they are required to impose both punishment and rehabilitation in cases where they do not believe both are necessary. However, as I previously stated, the Government firmly believe that all community sentences, bar in exceptional circumstances, should contain a punitive element. For this reason, while I entirely accept the point that punishment may often support rehabilitation, I do not believe that this amendment is desirable.

Turning to Amendment 9, a number of noble Lords have asked, both in Committee on 30 October and in today’s debate, which community order requirements courts could impose to fulfil this duty. I refer noble Lords back to the responses we received to our consultation on this issue. Practitioners were clear that, in the right circumstances, all 12 existing community order requirements could be punitive for a particular offender. The Government recognise the force of this argument. The courts are best placed to decide, on a case-by-case basis, what is punitive for a particular offender. That is why the Bill is drafted to give courts the flexibility to impose any community order requirement to fulfil the duty to include a punitive element, so long as they can be confident, on the evidence before them, that the requirement will genuinely prove to be punitive for that offender.

Of course, in practice, there are some community order requirements which courts are likely to make more use of than others. Again, this was a point that sentencers and those working with offenders made very clear in the consultation response. The consensus was that certain requirements, for the majority of offenders, are more likely to be punitive than others. The requirements they most commonly mentioned were curfews, other restrictions on liberty such as exclusion or prohibited activities, and unpaid work. That is why the Government would expect to see an increase in the use of such requirements if this provision is enacted. However, the Bill leaves it open to the courts to decide to impose other types of requirements if they believe, in the circumstances of a particular case, that this would fulfil the purposes of punishment.

Finally, turning to Amendment 11—

[Lord Clinton-Davis]

The noble Lord referred to other provisions. Would he define what he means?

[Lord McNally]

It is difficult. I do not know at what time the noble Lord joined our debate.

[Lord Clinton-Davis]

I have been in and out all the time.

[Lord McNally]

Which particular reference is the noble Lord asking about?

[Lord Clinton-Davis]

The noble Lord referred to other provisions which could be made by the judiciary in relation to Amendment 9.

[Lord McNally]

Well—

--- Later in debate ---

[Baroness Hamwee]

In moving Amendment 15, I will speak also to Amendment 16. Again, I hope to be brief.

This takes us to the provisions about electronic monitoring, the first of which provides in new Section 215A(1) that there should be a code of practice relating to the processing—I stress “processing”—of

“data gathered in the course of … monitoring … offenders under electronic monitoring requirements”.

My amendment would extend this code to the use of data. I hope that it is pretty obvious what that is about. Processing is a mechanical matter. The use of data is how you apply what you have discovered. That takes us into civil liberties areas. I hope that the Minister will acknowledge that this is something more than processing and that we can find a way to cover it.

Amendment 16 provides for consultation in preparing a code. The Secretary of State will have the obligation to issue the code. I remember that in the Protection of Freedoms Act there was provision for consultation by the Secretary of State in developing a code of practice relating to camera surveillance systems. This amendment is very closely based on that provision. I have listed a number of post-holders and organisations that will have a particular point of view on what needs to be considered when electronic monitoring is to be a part of a disposal.

Earlier, the noble Lord, Lord Ramsbotham, told us that he would have to leave. I say in his absence that I am extremely flattered that he has added his name to a piece of my drafting.

[Lord Clinton-Davis]

If the Minister were prepared to give an assurance that consultation will be wide and effectively encompass all the organisations that are listed, would that be satisfactory?

[Baroness Hamwee]

My Lords, I would like to hear what the Minister has to say about each of the organisations. It will not take very much more of the Committee’s time. I do not know whether the noble Lord was trying to save time.

NOMS and the probation service will have views about the impact of monitoring on individual offenders who, as we know, are likely to have very different characteristics. The Lord Chief Justice has a responsibility for the work of sentencers and therefore will, I am sure, wish to make comments to the Secretary of State about how sentencers will use this tool. The police, as the law enforcers, will have a view and the Information Commissioner and the Chief Surveillance Commissioner have important civil liberties obligations and responsibilities. I will listen to what the Minister has to say and I hope to receive some assurances but it is important to put on record why I have chosen this list of candidates, together with, as I say,

“such other persons as the Secretary of State considers appropriate”.

I beg to move.