Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Dholakia Excerpts

Tuesday 20th March 2012 Lords Chamber

[Lord Ramsbotham]

In Committee, we had two separate amendments on this issue which was, in a way, a commentary on the fact that the vital issue of women in the criminal justice system was not even discussed in Committee in the other place. I am very glad to have been able to combine the two amendments in one, in the hope that this time we really may get something in the Bill.

I am glad that the noble Lord, Lord Judd, has drawn attention to the need to get something done. Over the years there have been directors of women’s policy, women’s policy units, women’s policy groups, Ministers for Women, Ministers of prisons looking after it, but nothing has happened. Why? Because there has never been anyone who has been the agent for those people, responsible and accountable for overseeing that what is laid down actually happens. I have lost count of the number of times I have said that, but I say it again. The key word “implementation” appears in paragraph (4)(a) of the amendment and the word “delivery” in sub-paragraph (5)(a). With all the wisdom that has gone into this subject from many sources over many years, it is all there. Everyone knows what is to happen. What is lacking now is the drive to get it done. I therefore hope that the Minister will go away from this particular stage and reassure us that this time something will be done to action what is so well known.

[Lord Dholakia]

My Lords, may I first put on record my thanks to the Minister, my noble friend Lord McNally, for a number of changes that he introduced to the Rehabilitation of Offenders Act? I will do so because it has some relevance to the amendment that we are debating, which will assist many women to break the revolving-door syndrome of reoffending. There has been a near-100 per cent increase in the women's prison population in the past 20 years. The Government will find that the single initiative on the Rehabilitation of Offenders Act will help reduce the women's prison population.

I am attracted to at least one element of the proposal contained in the amendment of the noble Baroness, Lady Corston: namely, the importance of the Government publishing a strategy to improve the treatment of women in the criminal justice system. When we debated this in Committee, my noble friend Lord McNally said that the Government’s strategy had been set out by our honourable friend Crispin Blunt in a speech on 20 January. That was a good start, and I certainly welcomed that speech.

My noble friend the Minister then set out a series of measures that the Government were taking to improve the position of women in the criminal justice system. The measures included the provision of resources for diversion schemes for mentally disordered offenders; piloting drug recovery wings in women's prisons; giving women prisoners access to the work programme on release; developing intensive alternatives to custody for women; improving access to the private rented sector for women offenders; and developing support for female offenders who have suffered domestic abuse. No one in their right mind could object to these important and welcome developments.

The occasional speech needs to be crystallised. The published strategy document would start by setting out the Government’s overall objectives: for example, to reduce women’s offending—here I mention the Rehabilitation of Offenders Act; to reduce the unnecessary imprisonment of women; to ensure that every probation area and youth offending team has programmes geared to the special needs of women offenders; to place mentally ill women in appropriate treatment settings; and to increase opportunities for contact between women prisoners and their children.

Since we are all interested in outcomes, the strategy document would then set out the measures that the Government are taking to achieve each objective. Annual reviews would be published, assessing progress against each objective of the strategy. This would enable all concerned with the treatment of women to see that the Government had a thought-out, comprehensive strategy to improve the treatment of women in the criminal justice system. It would also enable the Government to be held to account for progress on each objective of the strategy. Very importantly, it would enable this to be done on the basis of accurate information about the measures that the Government were taking to improve the position.

Far from making life more difficult for the Government, this would help increase appreciation for the range of excellent work that is under way to tackle the injustices suffered by women in the criminal justice system. I therefore hope that the Minister will respond positively to the amendment, and in particular that he will agree to the publication of a strategy on women's offending, followed by annual updates on the progress being made towards meeting each objective of the strategy.

[Baroness Gould of Potternewton]

My Lords, perhaps I may crave the indulgence of the House; I was not here for the start of the debate on the amendment. Unfortunately, noble Lords moved a bit fast and by the time I got back the debate had already started. I hope that I will be allowed to say a few words as my name is on the amendment.

I start by saying that in no way do I question the Minister’s commitment to reducing the number of women in prison, or to extending support in the community for women who need help rather than punishment. However, I question the Government’s ability to make that happen within the present structure. In Committee, the Minister said that,

“we are working across government as well as with the voluntary and community sector”.—[Official Report, 15/2/12; col. 875].

That is fine, but the rest of his response made it clear that there was little co-ordination across the various elements that were working with government.

This simple and no-cost amendment would provide a model to overcome what is clearly a deficit. It would provide the Government with a strategy for women offenders and women at risk of offending, as well as reviewing the impact of government policies on this vulnerable group. It would also be a driver for local policy to provide co-ordinated and effective work to ensure that women offenders receive the right support to stop their offending behaviour. It is a tried and tested model and it works.

The backgrounds of many women offenders are certainly multifaceted. I will not go into the details as I am sure noble Lords have already heard them. If the Government are genuinely serious about trying to reduce reoffending, we need a holistic solution from all the agencies responsible. Most women offenders have children or are the primary carers for disabled and elderly relatives, so there is an enormous effect on the lives of their families. Many women offenders become homeless: imprisonment will cause one-third to lose their homes and other possessions. They are inadequately prepared for release, with little support and advice on how to cope with the future. Is it any wonder that there is such a high level of self-harming among women who have little hope for the future?

There is no question that progress has been made in recent years, and many extremely committed individuals within and outside the Prison Service have been working tirelessly, but it is essential that the momentum is maintained. The responsibility for that is firmly at the feet of the Government. However, it cannot be achieved by tinkering around the edges, but only by having a well co-ordinated strategy and integrated alternatives to custody via an expansion of the network of community centres. Essentially for the Government, this would save money, which could be used elsewhere.

This year the Government will be reporting to the Convention on the Elimination of All Forms of Discrimination against Women—CEDAW—on progress that has been made since the last CEDAW report five years ago, when the committee welcomed the measures that had been taken but expressed concern about there still being too many women in prison. In their report to CEDAW this year, the Government state:

“The UK Government is committed to diverting women away from crime and to tackling women’s offending effectively. It broadly accepted the conclusions in Baroness Corston’s March 2007 report … and is supportive of reducing the number of vulnerable women in prison”.

However, they are going to have to prove that, by the policies and structures that are in place, because at the moment that sentence lacks viability. Contributions from organisations that work in this field will show that that is the case.

If the Government are, as they say, serious about reducing the number of vulnerable women in the criminal justice system, the structures must be put in place to ensure that the needs of these women are prioritised, not marginalised. Only by addressing the issues strategically and monitoring the outcomes of the work effectively will we see a real reduction in the number of women in prison and the level of reoffending.

I do not for one moment question that the Government accept the seriousness of the situation, but I hope that they accept it in the context of this amendment, which will make a great difference by changing the position we have now. I hope that the Government will feel that they can accept this amendment. If they feel they cannot —although I would have great difficulty understanding why not—perhaps they could agree with the principle behind the amendment, of the need for a co-ordinated structure, and come back to us with a new amendment on Report.

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[Lord Woolf]

My Lords, Amendments 152BZZA, 152BZZB and 152BZZC all deal with restorative justice. Restorative justice is one of the areas of good news in the criminal justice system. I should have said—I do so with apologies now—that I have the considerable advantage that the noble Lord, Lord Dholakia, supports what I propose in these amendments. Indeed, the right reverend Prelate the Bishop of Liverpool would also have supported the amendment had he been able to be present today.

The fact is that the benefits of restorative justice are now widely accepted, but its role in the criminal justice system is sadly lacking in statutory recognition. It is essential that it now receives this recognition, and the Bill would be an appropriate vehicle for that recognition to be provided.

In Committee, an amendment before the House sought to give statutory recognition, but the statutory recognition then proposed is very different from what is now being sought. I have to concede that the amendment that was put before the House then was not, even with the skills of the noble Lord, Lord McNally, capable of being tweaked to achieve the purpose needed. Following in the footsteps of the Government in relation to the amendment that we just dealt with, for which the Government should be congratulated on taking such a positive role, the present amendments were drafted at a very late stage at the end of last week. Those amendments followed a similar pattern, although there is a significant difference between restorative justice and the alcohol and monitoring requirements.

The present amendments are to the Criminal Justice Act 2003, which provides the framework for sentencing that is of great importance to courts up and down the land when they come to sentence. In relation to three separate aspects of the statutory provisions they ask no more than that one of the options—one of the menus—that those statutory provisions should include is restorative justice. That is needed, and it is surprisingly lacking.

The amendments would require the Government to take no action and would require them to spend no money, but they would take into account the fact that it has been established as a result of experience that restorative justice has an important part to play in the administration of justice, not only in ensuring that offenders receive the right sentences from the court, but in protecting victims. I would like to stress that aspect of the matter, because the Ministry of Justice, in its admirable consultative paper, Getting it Right for Victims and Witnesses, sets out what a significant role restorative justice can play. Paragraph 114 on page 39 of that document states:

“In partnership with the Home Office we will develop a framework for restorative justice. This will provide guidance to local practitioners and help support them to develop and deliver effective, best practice restorative justice approaches suited to local need”.

That is clearly something that is required. It follows on from the statements in the same publication that in 85 per cent of cases where there has been restorative justice,

“victims who participated in the schemes were satisfied with the experience”.

The document also states that it is estimated that there was a,

“14% reduction in the frequency of re-offending”,

as a consequence of the use of restorative justice.

If the full impact of the amendments now proposed had been delivered in a rather more timely way, there could have been consultation between myself and Ministers so that it could have been explained from the point of view of those who have the task of sentencing in courts just why these amendments are needed and appropriate at this stage. Although the matter was only put down in its current form a late stage, for which I owe the House and the Government an apology, we now have a proposal that fits in with what the Bill is trying to do. I personally can claim very little of the credit for these amendments. They are the product of excellent work by the Prison Reform Trust, of which I declare my position as chairman, the Restorative Justice Council and many others—in particular, Paul Cavadino, whose knowledge in this area is quite outstanding. If the Government cannot accept these amendments today, I urge them to give me and those who support me an opportunity to explain in detail why these amendments are very constructive and have no conceivable downside as far as I can ascertain. I hope the Government will listen and respond to what I have just said.

[Lord Dholakia]

My Lords, it is clear from our debates in Committee that there is agreement in all parts of the House on the merits of restorative justice and the case for ensuring that it is seen as a central and fundamental part of our criminal justice system. I will make five key points. First, it has a salutary impact on many offenders by bringing home to them the impact of their offence on victims. All too often offenders minimise or simply do not think about the effect of their actions on other people. In a restorative justice process the offender has no alternative but to face up to the impact of his or her offences on those at the receiving end. Secondly, restorative justice gives victims much more satisfaction than other ways of dealing with offenders. A lot of research has been carried out on this point. It is clear that victims who have been through restorative justice express satisfaction with that process. It enables victims to tell their story, express their hurt and receive recognition in a way that no other procedure does. It helps to give victims closure, reduce trauma and reduce their fear about the future. Many victims also feel very positive about being involved in a process which can contribute more effectively to the rehabilitation of the offenders. Thirdly, restorative justice reduces reoffending. I have the Home Office research. It found that it did so by around 14 per cent. The process thereby helps to reduce the number of people in the future who would otherwise have suffered loss, distress, injury or damage as a result of crime. Fourthly, restorative justice saves money. The Restorative Justice Consortium has estimated a cost saving of £185 million over two years based on 70,000 cases and a return of £9 for every £1 spent. Finally, a wider use of restorative justice will help to increase public confidence in sentencing. An ICM poll that was carried out last year found that 88 per cent of people wanted victims to have the opportunity to inform offenders of the harm and distress they have caused.

There were a number of speeches in Committee on this matter so I will not repeat all the arguments in favour but I want to put two or three suggestions to the Minister. The noble and learned Lord, Lord Woolf, has tabled these new clauses and I think they require some discussion, even between now and Third Reading. One way is to include restorative justice in the statutory purposes of sentencing. Another is to enable courts to include restorative justice requirements in community orders. Another option that is open is to spell out that courts can use activities to require offenders to take part in restorative justice processes. Any or all of these proposals and approaches would help to keep restorative justice in the minds of sentencers and to achieve the Government’s aim of ensuring that it becomes a central part of the criminal justice system. This is not the time to look at a final outcome but I hope very much that this will open up a discussion with the Government with a view to seeing if they will move on any of these fronts. I support the noble and learned Lord, Lord Woolf, in what he has said.

[Lord Ramsbotham]

My Lords, I rise briefly to support the noble and learned Lord, Lord Woolf. There was an extremely useful conference last week by the Thames Valley Partnership which has been pioneering restorative justice for many years. It was interesting to hear exactly how far the National Offender Management Service has gone in preparing for restorative justice to be administered in every prison and every probation area around the country. Indeed, staff are being trained to do it. In addition, the police have trained the all-important committee supervisors and people who run the committees which make it work. Therefore, it would seem logical if this effort is to be overseen and able to come to fruition that it should be backed up by the statutory recognition in the Bill if at all possible.

--- Later in debate ---

Moved by

[Lord Dholakia]

154MA: Clause 118, page 96, line 11, at end insert—
“(10) The court must specify whether the requisite custodial period shall be one-half or two-thirds of the appropriate custodial term determined by the court.”

[Lord Dholakia]

My Lords, Clauses 118 and 119 deal with the new extended sentence and release on licence matters. I do not question the Government’s intention in what they are trying to achieve, but I do question the discrepancy that these clauses would create. My amendments would give the courts discretion over the release date of offenders given extended sentences. In appropriate cases, courts would be able to retain the current position whereby prisoners serving extended sentences are released after half the sentence. In other cases, where the court considered it necessary, it could specify that the offender will not be released until he or she has served two-thirds of the sentence.

At present, prisoners serving determinate sentences are released on licence after serving half the sentence in custody. This also currently applies to offenders serving extended sentences. Up to now, the point of an extended sentence has not been to increase the period which offenders spend in custody. Extended sentences are currently intended to make sure that when offenders who pose a risk to the public are released, they are subject to a longer period than usual of post-release supervision on licence. This means that they are subject to restrictive conditions and controls at the same time as receiving constructive rehabilitative help from the probation service. If offenders breach the conditions of their licence, they can be recalled to prison. This is a very useful provision which means that society maintains control over these offenders’ behaviour for a long period. However, the Bill would increase the time which an offender given an extended sentence spends in prison by stipulating that all extended sentence prisoners will not be released until the two-thirds point of their sentence.

When we debated this matter in Committee on 9 February, my noble friend Lord McNally explained the Government’s view that this would be appropriate for some prisoners who would now be given IPP sentences. However, the change in the Bill will not apply only to offenders who would now receive an IPP sentence. It will also apply to people who would currently receive an extended sentence. In future, these offenders will also have to serve longer in custody if this provision in the Bill remains unchanged. The Government have produced no explanation to demonstrate why it is necessary to change the rules for prisoners of the type who would now receive an extended sentence.

As the Bill stands, a court wishing to impose an extended period of post-release supervision will be able to do so in future only if it passes a sentence which also increases the length of time spent in custody before release to two-thirds of the sentence. If a judge does not want to increase the time that the offender spends in prison but simply wants to make sure that he or she has an extended period of supervision on release, why should he not be able to order this as he can under the current provisions for extended sentences?

When I moved a similar amendment in Committee on 9 February, my noble friend Lord McNally said:

“I listened to my noble friend’s idea about discretion … I will ponder this one between now and Report”.— [Official Report, 9/2/12; col. 467.]

That is the stage we have reached. These amendments give my noble friend the opportunity to let us know the result of his thinking on my suggestion. I beg to move.

[Lord McNally]

My Lords, I was teased earlier in the day about my Labour and trade union past. One quote that sticks in my mind is from the great TUC general secretary George Woodcock, who once said that good trade unionism is a serious of squalid compromises. Sometimes law reform or criminal justice reform is a series of compromises. The noble Lord, Lord Bach, shakes his head. Of course it is. We have to carry Parliament with us, we have to carry the various parts of the coalition Government with us, and we have to carry public opinion with us. Reflecting on my noble friend’s amendment, when we announced our decision to reform the Rehabilitation of Offenders Act, one of the campaigning groups rang up and said, “But you have not gone as far as Labour promised in their 2002 White Paper”. That is true, but we were reforming the Act for the first time in 37 years. Labour had talked big and done nothing.

A key element of our IPP replacement regime is the new extended determinate sentence for dangerous offenders. On this sentence, the offender will always serve at least two-thirds of the custodial term in prison. In the most serious cases early release will be at Parole Board discretion. This means that offenders stay inside until the end of that term. My noble friend has proposed that the court should have a discretion as to whether the minimum time in prison offenders on the new extended sentence should serve is one-half or two-thirds of the custodial term. He has explained that one of his key concerns is that there should be an appropriately long licence for the offender without the need to increase the period spent in prison. I have written to my noble friend to address the point regarding the licence.

The new extended licence consists of a custodial term set by the court, during which—or at the end of which—release will occur. This must then be followed by an extended period of licence, which is also set by the court, and may be up to five years in length for a violent offence and eight years in length for a sexual offence. The courts will base the custodial term on seriousness and factors relevant to that. The extended licence period will address risk. As the proposals stand, the court should be able to impose a sentence that will require a suitably long period of licence regardless of when during the custodial term the offender is released. Therefore, I do not think there is a problem with licence, but if there were I am not sure that this amendment would be the solution. It would be entirely possible for a serious offender to remain in prison until the end of the custodial term regardless of the point at which he becomes eligible for parole.

I also note that this would be a new decision for judges, and it is not clear on what basis they would make it. Seriousness and risk management are already addressed by the decisions the court will already make in relation to the sentence. Asking them to decide additionally between different sentence formats would seem to make this a very complex sentencing decision.

Finally, as I have said before, in June last year the Government committed to introducing a tougher determinate sentencing regime to replace IPPs. A key part of that tougher regime is that those on public protection sentences, now that they are no longer liable to receive IPP sentences, will spend more of their determinate sentence in prison. We think this is needed to enhance public protection and deliver public confidence. It will provide more time for offenders and the National Offender Management Service to work towards rehabilitation. I know that my noble friend and his friends in NACRO will continue to campaign on these issues and it is right that they should do so. However, I hope that my noble friend will feel able to withdraw his amendment.

[Lord Dholakia]

My Lords, I thank the Minister for his explanation. I am delighted with the information he has given. It is always nice to niggle him from time to time so that we can hear some lovely anecdotes. As long as he keeps bashing the Labour Party, I have no reason not to withdraw the amendment.

Amendment 154MA withdrawn.