Offender Rehabilitation Bill [HL]

Lord Marks of Henley-on-Thames Excerpts

Wednesday 5th June 2013 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

13: Clause 3, page 3, line 38, after “may” insert “if satisfied that the interests of justice so require”

[Lord Marks of Henley-on-Thames]

My Lords, I will speak also to Amendments 16 and 17 in this group. All the amendments are in my name and in the names of my noble friends Lady Hamwee and Lord Dholakia. Our amendments concern sanctions for the breach of supervision requirements. Clause 3 deals with such sanctions. Noble Lords will have seen that failure to comply with supervision requirements may lead to information being laid before a justice and to the issue of a summons, with or without an arrest warrant, as appropriate. On proof of a breach of supervision requirements without reasonable excuse, it is proposed by new Section 256AC(4) that the court may do one of four things. First, it may impose a sentence of 14 days in prison or in a young offender institution, as appropriate. Secondly, it may impose a fine. Thirdly, it may impose an unpaid work requirement. Fourthly, it may impose a curfew requirement. The clause is permissive, so it would be open to a court also to take no action. However, as drafted, the clause establishes no test for when action is or is not appropriate.

As has been pointed out, the Secretary of State very helpfully attended a meeting of all Peers yesterday and explained the purposes of new Section 256AC(4). The first purpose was, effectively, punishment. He explained that because this section is concerned with offenders who have been sentenced to prison and who then on release are subject to supervision requirements, it should be made clear that if the offender does not comply with those requirements, there will be a penal sanction. That effectively is why the four sanctions that I listed—imprisonment, a fine, unpaid work or a curfew requirement—are penal in nature.

The second purpose he outlined was personal deterrence. He explained that offenders should not think that the supervision requirements are in any sense voluntary, and that if they choose to ignore them or fail to comply with them, nothing will happen. He might have added that there should also be an element of public deterrence, so that the world will know that if offenders disobey supervision requirements, they will be liable to penal sanctions.

Those propositions may be sound; I do not dissent from them. However, they do not advance rehabilitation, which is the purpose of the Bill. Furthermore, offenders on release from short sentences are, as the Government and many noble Lords have pointed out, particularly fallible. It may be that in many cases a court would take the view that instead of imposing one of the four penal sanctions, it would be better in the interests of rehabilitation for the supervision requirements previously imposed by the Secretary of State to be varied. It may be that they should be varied to stronger requirements or to requirements that are better targeted to the particular needs of the offender, which may have been revealed by the breach of the requirements that had been imposed earlier—or by the proceedings taken after the breach and the investigation before the magistrates in court when the breach was looked at.

The possible requirements that can be imposed are to be found in Schedule 1. They cover a broad range and are very flexible. It is right that an offender may start with a very relaxed regime but a court may take the view on investigation that although the breach of those requirements justifies the imposition of a much tighter regime, it does not require one of the four penal sanctions. Amendment 16 would allow the court to recommend to the Secretary of State that the requirements be varied. Why should they be varied on the Secretary of State’s recommendation? It is because the notice imposing requirements comes from the Secretary of State by virtue of new Section 256AA. I accept that it is therefore right that the court’s power should be to make a recommendation for the Secretary of State to vary the requirements rather than to make an order imposing such a variation. The proposed scheme allows the court much more flexibility than it has under the Bill as drafted. That flexibility would both be useful and advance the cause of rehabilitation.

Amendments 13 and 17 are designed to ensure that the courts have some guidance about the proper response to a breach. Noble Lords will remember that at Second Reading, concerns were rightly expressed by a number of Peers, including the noble Lord, Lord Beecham, and the right reverend Prelate the Bishop of Newcastle, that the purpose of the Bill, which is rehabilitation, might be frustrated by the excessive imposition of sanctions for breach. As the Bill is presently drafted, the court has no indication as to when it ought or ought not to impose a sanction. Amendment 13 would give a clear direction as to what should be the court’s approach to a breach of supervision requirements. It would impose a threshold test so that the power to impose sanctions would be exercisable where the court was satisfied that the interests of justice require a sanction to be imposed. While I accept that it may be said that that can be inferred from the permissive nature of the power, it seems to me that the purpose and the test should be expressed on the face of the Bill. Amendment 17 would help to secure some policy consistency and uniformity in the imposition of sanctions by requiring that the Sentencing Council should publish guidelines in respect of the imposition of sanctions for breach of supervision requirements.

These amendments introduce flexibility to allow for the appropriate treatment of individual offenders and individual cases of breach. They are in the interests of rehabilitation which the Bill is designed to promote. They do not undermine the policies which the Secretary of State outlined yesterday and which he rightly wishes to implement in pursuit of that policy. I therefore invite my noble friend the Minister and his department to consider them on that basis. I beg to move.

[Baroness Howe of Idlicote]

My Lords, my Amendment 14, which is very similar in many ways to the amendment moved by the noble Lord, Lord Marks, would help to ensure that the purpose of the new supervision period is primarily rehabilitative by removing custody as a sanction for technical breach of requirements. It would retain the sanctions available to the courts of imposing a fine or a supervision default order imposing either an unpaid work requirement or a curfew requirement. The option of recall to custody for breach of conditions during the licence period is unaffected.

The Prison Reform Trust—it is good to see the noble and learned Lord, Lord Woolf, in his place—has had many tributes paid to it to which I add my own for the invaluable work it does in the whole of this area. It is particularly concerned that, without additional safeguards, the proposals will result in an increase in breach and recall to custody, which will drive up the short sentenced prison population. As the Transforming Rehabilitation consultation acknowledges, many people serving short prison sentences have complex and multiple problems, including homelessness, unemployment, drug and alcohol addictions, mental health needs and learning disabilities. This in turn increases the likelihood of breach and recall to custody if sanctions imposed for non-compliance are too onerous or the period of licence or supervision is too long.

By limiting custody as an option for breach, the amendment should help to reduce the costs of extending statutory supervision to short sentenced prisoners. The risk of breach and recall to custody is acknowledged but not quantified in the impact assessment. It states:

“There will be court costs associated with breaches of this provision and costs of providing sanctions for these breaches. These will include additional pressure on the prison population arising out of offenders being recalled to custody and further electronic monitoring starts. Initial estimates of these costs are of the order of £25 million per year”.

In addition, the impact assessment states:

“There may be an additional burden to the police from extending supervision in the community to offenders released from custodial sentences of less than 12 months, as police time will be needed to deal with offenders who fail to comply with the conditions of supervision. Our initial estimate is that this could cost up to £5 million per year”.

The rise in the number of recalls has been identified by the Ministry of Justice as a key driver of the growth in the prison population over the past two decades. The recall population has grown rapidly since 1993, increasing by more than 55 times. The recall population increased by 5,300 between 1993 and 2012. Growth in the recall population began in 1999, reflecting the change to the law in 1998 which extended executive recall to medium-term sentences—12 months to less than four years.

--- Later in debate ---

[Baroness Hamwee]

My Lords, before my noble friend responds, I should deal with the terrible slur from the Front Bench about the narrowness of my bedtime reading. In fact, my bedtime reading at the moment consists of Caroline Shenton’s book, The Day Parliament Burned Down—a wonderful book that the Minister himself recommended to me.

[Lord Marks of Henley-on-Thames]

My Lords, first, I am grateful to my noble friend for indicating that he will consider Amendment 16 and come back to the House on it at a later stage. I am also grateful for his assurance that he has great confidence that the Sentencing Council will indeed publish the guidelines, and I quite understand his reason for not wishing that to be included in the statute because of the danger of compromising that body’s independence.

As to the lead amendment in the group, while I completely appreciate the Minister’s position that “may” is discretionary—I have no doubt that my noble friend Lady Hamwee, notwithstanding her additional bedside reading, will confirm my view when she has considered the response—I still feel that setting a test for the use of discretion might be helpful. Perhaps the Minister will consider that also. I beg leave to withdraw the amendment.

Amendment 13 withdrawn.