Offender Rehabilitation Bill [HL]

Lord Marks of Henley-on-Thames Excerpts

Tuesday 11th June 2013 Lords Chamber

Moved by

[Lord Marks of Henley-on-Thames]

24B: Before Clause 12, insert the following new Clause—
“Presumption in favour of community sentence orders
(1) Section 152 of the Criminal Justice Act 2003 (general restrictions on imposing discretionary custodial sentences) is amended as follows.
(2) After subsection (2) insert—
“(2A) Where a court has discretion to pass a custodial sentence or impose a fine or a community sentence, the court must not pass a custodial sentence for a term of less than 12 months unless it is of the opinion that—
(a) the requirements of subsection (2) are satisfied, and(b) there are special reasons which justify a custodial sentence,and has had regard to the provisions of section 256AA.(2B) A court passing a custodial sentence for a term of less than 12 months must state in open court the reasons for its opinion that there are special reasons which justify the sentence.”
(3) In subsection (3), after “(2)” insert “or (2A)”.”

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[Lord Marks of Henley-on-Thames]

My Lords, this amendment, in my name and that of my noble friends Lord Dholakia and Lady Hamwee, builds upon the general principle embodied in Section 152 of the Criminal Justice Act 2003, which is, in the words of the section, that:

“The court must not pass a custodial sentence unless it is of the opinion that the offence, or … offences … was so serious that neither a fine alone nor a community sentence can be justified for the offence”.

That is a sensible principle that is soundly based on the wealth of evidence that short sentences are not only unhelpful but in many cases profoundly damaging. That evidence has been commissioned by the Howard League for Penal Reform and by many others. The findings are well known to the House. Short sentences are disruptive. They cut offenders’ ties with their communities, with their jobs if they have them, and with their families. They introduce offenders, particularly first-time offenders, to a culture where reoffending is the norm.

It is of course to be hoped that the impact of this Bill will reduce the reoffending rates of this cohort of prisoners by introducing periods of supervision, but balancing a hoped for mitigation of damage against the evidence that we have of actual damage still leads to the conclusion that short sentences are to be avoided.

Our amendment goes a stage further than Section 152 and is an attempt to address the risk that was identified by several noble Lords at Second Reading. The risk is that the availability of short sentences of imprisonment that will carry an automatic period of supervision upon release will make short sentences more attractive to sentencers. The point was put succinctly in particular by the noble and learned Lord, Lord Woolf, who said:

“The Bill will create problems, as has already been indicated, as there will be a temptation in some courts to undermine the objective of the Bill by seeing the proposals for dealing with reoffending as justifying short sentences”.—[Official Report, 20/5/13; col. 653.].

A little later he said:

“What can be achieved by a short sentence in prison can always be better achieved, in my experience, by a community sentence”.—[Official Report, 20/5/13; col. 654.]

The existing provision in the Criminal Justice Act deals with the seriousness of the offence or offences. The suggested provision in our amendment would make it very clear to sentencers that the availability of a period of supervision should not lead to or encourage the imposition of short sentences. The court would have to be satisfied not only as to the seriousness of the offence or offences themselves but that there were special reasons to justify a custodial sentence, and those reasons would have to be stated in open court. The principle would be strengthened that short sentences are to be avoided unless they are really necessary in an individual case. I beg to move.

[Lord Williamson of Horton]

My Lords, I have a favourable approach to this amendment, which would be a substantial change in practice. However, it is important that we do not present the question of short custodial sentences and community sentences simply in terms of hard or soft sentencing, although that is what actually happens in the media comment on some of these issues. For me, the real question is what arrangement is more likely to protect the public against continuing crime. That is the issue that we face in this amendment. At present, we have short custodial sentences, which do of course protect the public for a short period, but because the reoffending rate is high we also have periods when the public are not protected because we get a continuation of crime. The question is: can we do better?

The amendment does not take away the power of a court to impose a short custodial sentence where there are special reasons for doing so. Like the noble Lord who presented the amendment, I think that part of it is well drafted and correct and that we should concentrate on the special reasons. Furthermore, it requires the court to explain its decision in such cases. Over a period, such explanations will provide a good basis for assessing the effectiveness of the proposals. It is certainly possible—in my view, probable—that the proposal in the amendment, with a presumption for community sentences, will reduce crime and thus benefit law-abiding citizens. Therefore, I have a favourable presumption for the presumption.

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[Lord Marks of Henley-on-Thames]

My Lords, before my noble friend replies, having been asked direct questions, perhaps I may reply briefly. I envisage that there would be a wide range of special reasons. As the noble Lord, Lord Ponsonby, suggested, they would include a history of breach of previous supervision requirements. However they might also encompass areas of special risk to do with the particular offender. The shortcoming of the Criminal Justice Act 2003 at which this amendment is aimed is that under Section 152 only the seriousness of the offences is taken into account. There may well be reasons to do with the offender that could justify a custodial sentence, but the point of the amendment is to make it quite clear that in the absence of such special reasons, whether they are to do with history, special risk or other reasons, the presumption in favour of a community sentence should apply.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, I have found this to be an extremely helpful debate, and as the movers have indicated that it is a probing amendment, I will take it away to consider, but in my reply I will make it clear that we do not think the amendment is necessary at this moment.

I understand the points that the noble and learned Lord, Lord Woolf, has quoted, and that my noble friend Lord Dholakia mentioned, that the Bill might encourage judges to go for the best of both worlds by passing a short sentence that will immediately qualify for the 12 months of rehabilitation. I certainly share my noble friend Lord Dholakia’s view that short sentences are too short to rehabilitate, but just long enough to disrupt, the life of the person sent to prison and introduce them, perhaps for the first time, to all the bad influences that can be found in a prison. On the other hand, as the noble Lord, Lord Williamson, rightly recognised, we face media and—to a certain extent—public opinion that sees community sentences as somehow softer than prison sentences. Part of the aim of our reforms is to position community sentencing and the rehabilitation process that goes with it more positively in the eyes of the public, so that they have greater confidence in it.

I was grateful for the words of the noble Lord, Lord Ponsonby of Shulbrede, in his intervention, because there are two things that become one. He put firmly on the record that in his experience, judges will not be tempted to go down the road that my noble friends fear. I think that he has said before—certainly other magistrates have—that sometimes for a repeat offender or somebody whose circumstances make setting them back into the community even more dangerous to themselves and the community, a short custodial sentence can be of benefit, so the idea of ruling them out entirely is not the way forward.

As my noble friend has explained, Amendment 24B would create a new clause in an attempt to bolster what is often referred to as the “custodial threshold”: that is, the test set out in Section 152(2) of the Criminal Justice Act 2003, to which my noble friend referred, with which all courts must comply when imposing a custodial sentence.

It is perhaps worth noting again what Section 152 says:

“The court must not pass a custodial sentence unless it is of the opinion that the offence, or combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence.”

It is an onerous test. It means that a court cannot impose a custodial sentence unless the offence was so serious that a fine or community sentence will not do; in fact, it cannot be justified. It is also worth noting that this test has to be read in conjunction with Section 153 of the 2003 Act. That requires a court when imposing a custodial sentence to ensure that the sentence is for the shortest term commensurate with the seriousness of the offence.

My noble friend’s amendment would add to the existing provisions a requirement, where a court intended to impose a custodial sentence of less than 12 months, that there be “special reasons” which justify the custodial sentence of less than 12 months. We have already heard in debate that magistrates and judges do not believe that they impose custodial sentences other than as a last resort. It is natural to ask what are these special reasons or circumstances that are not covered by the original test. Could the special reasons relate to a history of previous convictions? If so, the current custodial threshold test already applies because, under Section 143 of the 2003 Act, a court must consider relevant and recent convictions as an aggravating factor which makes the offence more serious. It is seriousness that is the key driver in determining the nature of the sentence and meeting the custodial threshold test.

I suggest to my noble friend that the special reasons he may have in mind must already be considered when the court decides on the sentence and whether a custodial sentence is merited under Section 152. So although of course I appreciate what my noble friend is attempting to achieve—that is, a statutory presumption against sentences of less than 12 months—I am not convinced that the amendment would actually do what is intended.

Let me make the point that the Government do not intend or expect that sentencers will change their current behaviour in any significant way in response to the provisions in the Bill. We do not expect to see an increase in the number of short custodial sentences. Offenders who do not meet the custodial threshold should receive community orders or fines. I hope that noble Lords and noble and learned Lords who have judicial experience will agree that it would be wrong for any judge, and contrary to the provisions of the existing law, if a sentencer decided to “up-tariff” an offender into custody so that they could receive 12 months of supervision.

I should also deal briefly with the second part of the amendment, which would require the court to give an explanation of the special reasons that merited a custodial sentence of less than 12 months. I point out to my noble friend that the current law already requires all courts imposing any sentence of any length to give reasons for the sentence passed. That is contained in Section 174 of the 2003 Act. Invariably, a sentencer will begin their explanation of a custodial sentence by setting out why the offence is so serious that it merits a custodial term. The further provision is, I suggest, unnecessary. I understand the good intentions behind the amendment. No one in this House wants to see short custodial sentences passed for offences that do not justify them, but that is why we have the current threshold test and a right of appeal against sentence.

We need to provide sentencers with a range of sentences in which they can have confidence. That is why we made the changes to community orders in the Crime and Courts Act 2013. We have to stop offenders reoffending to such a degree that they end up having to be considered for short custodial sentences in the first place. We also have to realise that some offenders will merit short custodial sentences. We need to focus on making those sentences more effective at rehabilitating offenders so that not only are they imposed as a last resort, they should be the last sentence that the offender receives.

I acknowledge the efforts of my noble friend on this amendment, but, although I recognise his intention, I ask him to withdraw it. Given the spirit in which it has been moved, I will discuss the matter further with the Lord Chancellor and others, but I suspect that our position as I have just set out will remain unchanged.

[Lord Marks of Henley-on-Thames]

My Lords, I am very grateful to my noble friend for that detailed and helpful response, and for the indication that he will consider the matter with us. The question really is whether the existing safeguards are sufficient in the light of the additional supervision requirement and whether there is ground for the concern expressed by the noble Lord, Lord Dholakia, and the noble and learned Lord, Lord Woolf, that there might be a temptation for sentencers to err. In that spirit, I withdraw the amendment at this stage.

Amendment 24B withdrawn.

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Moved by

[Lord Marks of Henley-on-Thames]

26: Clause 13, page 12, line 16, at end insert—
“(1A) In giving any instructions to the offender under subsection (1), the responsible officer shall have regard to—
(a) the suitability of any appointments having regard to any caring commitments the offender may have and the compatibility of activities with the offender’s family circumstances;(b) the suitability of activities and place specified under subsection (5) if the offender is responsible for a child and it is desirable that the child accompanies the offender.”

[Lord Marks of Henley-on-Thames]

My Lords, I will speak also to Amendment 30 in the same group. Amendment 26 concerns rehabilitation activity requirements, which are essentially instructions to an offender to attend appointments or to participate in activities. These are imposed as part of a community order or a suspended sentence order by a responsible officer, defined for these purposes as a probation service provider.

This amendment will ensure that such requirements do not conflict unnecessarily with the caring commitments or family circumstances of the offender concerned. That object will be achieved by requiring the responsible officer to have regard first to,

“the suitability of any appointments having regard to any caring commitments the offender may have and the compatibility of activities with the offender’s family circumstances”,

and, importantly, by,

“the suitability of activities and place specified … if the offender is responsible for a child and it is desirable that the child accompanies the offender”.

This may well be the case for people who have responsibility for children, cannot simply leave them and have to take them along to the activity.

Amendment 30 is designed to achieve a similar outcome for any other requirement that might be imposed as a result of such an order. It would amend Section 217 of the Criminal Justice Act 2003. That section currently requires the court to ensure that such requirements avoid conflict with, under Section 217(1)(a), “the offender’s religious beliefs” and, under Section 217(1)(b), the times at which the offender,

“normally works or attends any educational establishment”.

It would be entirely reasonable and desirable to add to that list of matters that are not to be conflicted with a requirement that orders avoiding conflict with the offender’s caring responsibilities. That is what Amendment 30 seeks to achieve.

These amendments are consistent with the Government’s desire to ensure that rehabilitation measures in this legislation are targeted particularly at helping women offenders, who often face particular difficulties within the criminal justice system. They would make the Bill more sensitive to those difficulties and to the demands of family life. The amendments are primarily aimed at avoiding conflict for women offenders who are the subject of community orders or suspended sentence orders, and are designed to enable them to fulfil the requirements of such orders without making it unduly difficult for them to meet the demands of caring for families. However, the amendments are gender-neutral, as you would expect, because many male offenders have similar commitments. It is important that appointments and activities can be arranged in a way that does not interfere unduly with family commitments, be those commitments to take children to school, to be at home when children are at home without alternative childcare or to look after elderly or disabled relatives. The same goes for all requirements, whether unpaid work requirements, curfew requirements or any others. I beg to move.

[Lord Ponsonby of Shulbrede]

My Lords, I support the general thrust of the amendments tabled by the noble Lord, Lord Marks. As he said, they would oblige a responsible officer to have regard to the offender’s caring commitments when arranging a community sentence.

My understanding of the present position is that in probation reports, done by what will be the National Probation Service, probation officers will take into account personal circumstances when making recommendations to the court on the likely sentence. It would be the responsibility of the responsible officer that the sentence is completed as required by the court and in a timely manner.

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[Lord Ahmad of Wimbledon]

My Lords, I thank both noble Lords who have taken part in the debate, in particularly my noble friend Lord Marks for highlighting in his contribution the importance of both family matters and, of course, sensitive issues of faith, which is also relevant to a fair percentage of our prison population.

This group of amendments would place an additional duty on responsible officers instructing offenders under the new rehabilitation activity requirement created by Clause 13, and would also place a new duty on the courts when imposing community orders and suspended orders more generally. To address first the comments of the noble Lord, Lord Ponsonby, about organisations’ or providers’ commercial interests right away, it would be wrong and totally inappropriate for those to supersede any other offender requirements. The whole point of rehabilitation is putting the offender at the centre.

I do not agree with the noble Lord’s three cohorts—the groups he put together. Even the no-hopers are worth a try. We need to ensure, in all the reforms we put forward, that anyone—even people whom society at large perceives as no-hopers—is worth a try. We should seek to assist them to become productive citizens of society.

Noble Lords may also find it helpful if I briefly explain what Clause 13 provides. It creates a new rehabilitation activity requirement that will combine key elements of the existing supervision and activity requirements available under community orders and suspended sentence orders. At present Section 213 of the Criminal Justice Act 2003 provides for a supervision requirement that may be imposed as part of either order. The requirement involves attending appointments during the period of the order with either the responsible officer or another person determined by the responsible officer. Section 201 of the 2003 Act provides for an activity requirement as part of either order. Under an activity requirement, an offender must first, present himself to a person specified in the order for a specified number of days, and secondly, participate in activities specified in the order for a specified number of days.

Clause 13 repeals both those requirements and merges them into a single rehabilitation activity requirement. Under the new requirement, offenders must comply with any instructions given by their responsible officer to attend appointments, participate in activities, or both. These instructions must be given with a view to promoting the offender’s rehabilitation, although they can serve other purposes as well. The effect of the clause is to allow the probation provider who is the responsible officer, rather than the court, to decide the exact details of what appointments or activities the offender should take part in to maximise their chances of turning away from crime.

Amendment 26 would require a responsible officer who is instructing an offender to attend appointments or participate in activities under this new requirement to take account of the offender’s family circumstances and, of course, any caring responsibilities that the offender might have. That would mean ensuring that appointments were suitable, that activities were compatible with the offender’s family circumstances, and that any place to which the offender was sent to take part in activities was suitable if the offender needed to take a child with them.

Amendment 30, although inserted into the clause about programme requirements, would apply to all requirements under any community order or suspended sentence order. It adds to the provision in Section 217 of the Criminal Justice Act 2003 that already requires a court to avoid, as far as possible, any conflict with the offender’s religious beliefs and any interference with his or her work or education. The amendment would add to Section 217 a new duty requiring the court to avoid—again as far as is practicable—any interference with the offender’s ability to carry out any caring responsibilities that he or she might have.

As I am sure that noble Lords will appreciate, the criminal justice system at all points endeavours to accommodate the personal circumstances of an offender. Courts will always sentence an offender in the light of their individual circumstances, together with the circumstances of the offence. Indeed, the law requires, where a court imposes a community order, that the requirements chosen must be, in the court’s opinion, the most suitable for the offender.

In addition to these general requirements, I can assure all noble Lords that there are already important safeguards in place to address childcare and other caring responsibilities where an offender is sentenced by the courts. These issues are covered in the assessments carried out when compiling pre-sentence and other reports that are considered by the courts before sentencing.

Probation staff will also respond to requests by the courts for specific information about family circumstances and courts will sometimes adjourn briefly so that such issues can be considered. If an offender is reluctant to divulge information about their children for fear that they may be taken into care, a post-sentence interview will often elicit the necessary information or the offender might tell their lawyer. If necessary, liaison will take place with local authority safeguarding authorities, or social security emergency duty teams, to safeguard the child or vulnerable person in question. In addition, the Sentencing Council has made it clear in its guidelines that:

“Where the offender is the sole or primary carer of the victim or other dependants, this potentially should be taken into account for sentencing purposes, regardless of whether the offender is male or female”.

Both courts and responsible officers are public authorities within the terms of the Human Rights Act 1998. This means that they are required to balance the need for the offender to attend appointments and take part in activities in order to secure his rehabilitation against his right under the Human Rights Act to respect for his private and family life. This point was well made by my noble friend Lord Marks.

What this adds up to is a clear indication that the courts already take all possible steps to avoid, as far as is practicable, any interference with the offender’s ability to discharge any caring responsibilities that he or she may have. For this reason, I argue that Amendment 30 is unnecessary. With these assurances and clarifications, I hope that my noble friend will be minded to withdraw his amendment.

[Lord Marks of Henley-on-Thames]

My Lords, I am again grateful for that helpful explanation of the Government’s position. The difficulty, as I see it, is something that I hope that we can consider between now and Report. As the noble Lord, Lord Ponsonby, pointed out, we are entering an entirely new era in the provision of probation services. The Minister is entirely right to say that best practice and sentencing guidelines require the courts and responsible officers—who are now in the public sector probation service—to have regard to caring responsibilities. However, there is a risk that in the new regime, which is a new world for probation provision, there will be a departure from best practice or, at any rate, a temptation to depart from it. I hope that, by amending the Bill in a similar way to our amendments, we could send out the message that family commitments have to be taken into account just as faith and education commitments are. In those circumstances, I invite the Government to consider these amendments carefully and sympathetically before we come back. I beg leave to withdraw the amendment.

Amendment 26 withdrawn.