Crime and Courts Bill [HL]

Lord Elystan-Morgan Excerpts

Tuesday 30th October 2012 Lords Chamber

[Baroness Warnock]

My Lords, I hope that the Government will pay attention to everything that has been said today. There seems to be a total confusion about the meaning of the word punishment and the adjective punitive. The meaning of these two words has separated over the years. Punitive suggests something quite alien from the notion of punishment, which is what is handed down when someone has been convicted. We know that vengeance does not work and that punitive sentences are not necessary. The whole point of punishment is to prevent further offences. We know now that community sentencing does, relatively speaking, work in the way that short prison sentences do not.

I beg the Government to concentrate on what is intended by punishment and to go on the evidence that community sentencing, with good support from the probation services, can work and that this is the intention. The adjective punitive seems to me to be completely out of place in this discussion altogether. I believe that the Government must listen to what has been said today.

[Lord Elystan-Morgan]

My Lords, I agree wholeheartedly with the remarks made by the noble Baroness, Lady Warnock. In relation to the past 30 years or so, Governments of every hue must stand in the dock and answer the accusation that they went out of their way to curtail the discretion that otherwise would have been vested in a judge or magistrate. Practically all Governments have done that and some of them more shamelessly than others. I am sure that anyone who has served in the courts in a judicial capacity, however senior or however humble, must be very aware of that.

The proposal that the Government are now putting forward in relation to the punitive approach is one of the most far reaching in that context. If it should be the case, as I assume it to be the Government’s case, that one-third of community orders which are made without a punitive element according to their definition must in all cases be dealt with in a different way, save for a very minuscule minority that is exceptional, then it is a very far-reaching and drastic proposal.

I fully accept that the Government are talking not so much about punishment in the sense of the disposal of a case of a person who has committed a crime but about something else, which connotes the idea that the experience of the defendant should be painful. My Latin is not all that good but does the word punishment not come from punitas? Is punitas not one and the same thing as pain? It is poen in Welsh and pain in English. Is that not really what the Government are after?

However, I think that the argument put forward by the Government, which has been described as offensive by the noble and learned Lord, Lord Woolf, and alarming by the noble and learned Baroness, Lady Butler-Sloss, is highly offensive. The 2003 Act had a vast range of community disposals. In many ways, they were imaginative, flexible and double-banked. The sentencer had a huge armoury at his or her disposal.

As I understand it, the Government are now saying that that failed to achieve its purpose. The people who were charged with imposing sentences missed the whole point. At some time after 2003, tens of thousands of sentences every year which should have involved a punitive element did not achieve their purpose because that element was missing. That statement is either correct or incorrect. If it is correct, it must mean that many people sat in judgment as magistrates, circuit judges and recorders who should never have been there. They were missing the whole point. However, if that statement is incorrect, it is one of the most unjust indictments of the administration of justice that there could ever have been. It is one or the other.

I ask the Government: where is the evidence that in tens of thousands of cases, year by year, at some point in time after 2003, that has been happening? I feel it is a policy and a gesture that is cosmetic rather than real and intended to give the impression of toughness. The greatest toughness to my mind that can be achieved in relation to the administration of justice is doing that which is right, that which you know to be just and that which you consider to be proper by society, irrespective of whatever prejudices tabloid editors might have against you. That is the toughness that the Government should seek to achieve.

[Lord Marks of Henley-on-Thames]

My Lords, the test for these amendments is whether they work in making community orders more effective and in cutting reoffending as a result. It is quite plain from the debate today that it is common ground in this House that seeking reform and rehabilitation of offenders, while recognising the importance of offering redress to victims, provides a balanced approach, which offers a far greater prospect of cutting reoffending than a programme of increasing prison terms and prisoner numbers.

However, if there is to be a compulsory requirement imposed for the purpose of punishment in community orders—it is noteworthy that the phrase punitive element is not used—it is very important to recognise what is meant by punishment in this context. In an enlightened society, the punishment involved in a prison sentence is the loss of liberty for the offender, not the imposition of a harsh and inhumane regime for prisoners serving their sentences. Therefore, the punishment element in a community order should be reflected in a lesser but none the less significant loss of liberty—the liberty to do as one pleases within the law—by the imposition of some compulsory sanction that restricts that liberty.

It should not follow that the activity that offenders are obliged to undertake by community orders must be unpleasant, degrading or harsh. It is not likely to be helpful to force offenders to do some kind of hard labour for the sake of it, much as some elements of the press would wish us to do so. It is likely to be helpful, however, to oblige offenders to acquire work and life skills that will help them to find work and take their place in non-criminal society. Compulsory training, useful work—particularly work that benefits the community—treatment for addiction and anger management, and, importantly, a significant commitment to compensation, may all have their place in a regime of punishment, as may curfews monitored by electronic tagging that oblige offenders to remain at home for a reasonable number of hours in the day. I reiterate the point made by my noble friend Lady Hamwee that 16 hours hardly seems a reasonable number of hours in a day.

From what I have said, it follows that I welcome the passage in my noble friend’s opening speech that this is how the Government see the punishment provision. But I can foresee the way in which the provision is presently worded leading some to question what is meant by punishment. It is important that it is absolutely clear, as my noble friend suggested, and as the noble Lord, Lord Ponsonby, wanted clarified, that the discretion as to what is the punitive element in a sentence is a discretion to be exercised by the sentencer and that he or she can comply with the requirement in the schedule in a way that he or she reasonably sees fit.

I would add a couple of words about one or two provisions of this part of the schedule, to which the House may wish to give attention next time. The reference to “exceptional circumstances”, as the noble and learned Baroness, Lady Butler-Sloss, pointed out, as being the circumstances required to invoke the exemption from the requirement for a punishment element or a fine in a community order is far too strong. Exceptional is a very powerful word in statute and runs the risk of being more restrictively interpreted by the courts than my noble friend’s speech would indicate that the Government intend.

I also add a minor point that the proposed provision that breach by a contractor of the code of practice for electronic monitoring will not give rise to a civil cause of action may offer contractors, who are likely to be private contractors, an unwarranted level of immunity, and may weaken public confidence in how they perform their duties in respect of an intrusive form of punishment.

I add a word or two about restorative justice. The provisions of Paragraph 5 of the schedule have been welcomed across this House. By bringing offenders into contact with their victims, restorative justice helps them to understand the impact of their offences and assists victims to feel that society cares, understands the ordeals that they have been through and responds to them. For far too long, victims of crime have been treated as witnesses only, and even the introduction of victim support over recent years has failed adequately to address this. I know from my own experience and that of others that an arrest and a flurry of statements following an offence are followed up with a couple of letters offering counselling by way of victim support, when the victims may not need or want such counselling. Then far too often there is a silence, without the victims even being told what has happened because the offender has pleaded guilty so no evidence is needed from them at a hearing. That leaves a gaping hole in the system of providing victims with proper redress, and it needs covering at all stages of the process.

Deferring sentence to allow for restorative justice activities may prove a turning point for offenders and victims, and the evidence to which the noble and learned Lord, Lord Woolf, referred so far supports this. But for all these proposals to fulfil their potential, they must be properly resourced in terms of people, preparation and funding. To improve the effectiveness of community orders in the ways proposed, we will need more people, more money and adequate training. Much will turn—and the noble Lord, Lord Ramsbotham, made an extremely valuable and important point—on the outcome of the Government’s consultation on the probation service. While there may be good reasons for the increasing use of private and voluntary sector providers, as suggested in the consultation paper, it is very important that we do not dissipate or even risk dissipating the expertise that exists within the public sector probation service—and I share the worries of many noble Lords in the Committee. For example, there is a proposal in the consultation paper to allow existing probation services to form separate probation trusts to compete with private and voluntary sector providers for work from the commissioning probation trusts. That seems structurally awkward and doomed to fail. We must find a way to retain what is best in the probation service and not lose the talent that we have.

Resource will also be needed to provide for the restorative justice proposals. Sentencers will need training, and facilitators will need to be available to provide a service during the short periods when sentence is deferred. There will need to be national, not patchy, cover. These are serious challenges; if met, I believe that they offer serious prospects of improvement and, ultimately, savings of resources and great social benefits. But the implementation of these proposals so that they achieve their potential will be a significant challenge.

--- Later in debate ---

[Lord McNally]

Absolutely. We might get on to troikas in a few minutes, but we will wait for that.

I also fully understand the separation of powers in our system. The judiciary and parliamentarians should show due respect for each other, but we should also respect that in the workings of the criminal justice system parliamentarians have a responsibility as well as the judiciary, and they are quite entitled in that responsibility to comment on how the system is working. I have to say to the noble Lord, Lord Elystan-Morgan, that if proposing amendments to the criminal justice system somehow disowns all the decisions that judges have made under previous legislation, it must have been really difficult under the previous Government who, I think, passed a piece of criminal justice legislation on average every year for 10 years. We should not get too thin-skinned about it. I have absolute respect for our judiciary and it is a bit rum to say that we are bullying or being high-handed. One of the key elements of this Bill spelt out clearly our trust in the sentencer to make the crucial judgments about balance in terms of punishment.

Of course we will consult on guidance. When sentencing any offender, courts are under a statutory duty to follow any relevant guidelines issued by the Sentencing Council.

[Lord Elystan-Morgan]

Does the Minister accept the logic of the situation that, if he is right about the one-third of community sentences that according to the government definition do not carry a punitive element, that one-third—amounting to many tens of thousands of sentences each year—would be disallowed and that that is the effect of the situation over the past nine years since the 2003 Act came into force?

[Lord McNally]

I am sorry but I completely failed to follow the logic of this. Parliament is entitled to take another view nine years after a piece of legislation is enacted. That does not mean that decisions taken under the 2003 Act between its enactment and this Bill becoming law become completely invalid, it just means that Parliament has taken another view on this and has given some further guidance as to how the council should carry out its responsibilities. The Government are saying that they believe that the third or so of community sentences that did not have any punitive element would have been better and more effective if a punitive element had been included. We have had a lot of debate about this, but imagining that community sentencing that does not have punitive elements will have public confidence is going too far. I can tell the noble Lord, Lord Reid, that I had a very good example of one of his pieces of handiwork. I went to see a group of young men clearing a patch of derelict land and they were all wearing bright orange jackets. I asked the supervisor, “Do you have any trouble?”, and he replied, “Only that they steal the jackets because they’re quite a symbol to wear at the dances on Saturday nights”. That is the reality at the sharp end.

There is a fear of the word “punishment”, and the noble Lord, Lord Beecham, mentioned some statistics. I have said this at this Dispatch Box before: at one of my first ministerial visits to a young offender institution, there was a group of 16 and 17 year-olds standing around and I said to the person in charge, “What are the factors involved in these guys being here?”. He looked across at me and said, “Most of them have had but a passing contact with our education system throughout their lives, and most of them can’t read or write”. If we have young people, in particular, in our care and custody for a period of time, it does not seem unreasonable to say, “While you’re there, you’re going to learn to read and write”, or, if they are on a community sentence, “While you’re on that community sentence, we’re going to teach you to read and write”. Somebody who may never have got up before noon in his life might classify learning to read and write as a punishment, but later in his life he may classify it as one of the turning points in his life.

I understand some of the concerns but let us not get too worried about some of the presentational aspects; let us dig down into what the Bill is going to do. I think that it will put community sentencing on to the map in a way that will attract public confidence and enable us to take proper action on the rehabilitation of offenders.

I reassure noble Lords that we are looking very carefully at electronic monitoring and we will keep the House informed as we examine the technologies. Of course, we are aware that there will be civil liberties concerns in this area which we will wish to address and on which we will wish to reassure Parliament.

With the leave of the Committee, I shall look through my notes and, where there have been specific questions that I can reply to, I shall do so in writing. However, I know that this excellent debate has fulfilled the first of our objectives. I take on board the concerns that have been expressed about probation. I am a lifelong admirer of the probation service and am in awe of the responsibilities that our probation officers take on. I cannot imagine that any future structure would not draw on the experience and ethos that makes it such an excellent service.