Legal Aid, Sentencing and Punishment of Offenders Bill

Lord McNally Excerpts

Tuesday 7th February 2012 Lords Chamber

[Lord Beecham]

My Lords, we on the opposition Benches support both amendments and congratulate the noble Lord, Lord Wigley, and his cosignatories on bringing them forward. I have not the slightest doubt that any court presided over by the noble Lord, Lord Faulks, would not only know what to do but actually do it. However, that is not necessarily universally the case, and the Justice Select Committee in July 2008 raised concerns about the fact that pre-sentence reports were not requested frequently enough. It also raised doubts about the adequacy of those reports when they were presented; so there is clearly a problem in some courts some of the time, and it is sensible to make provision along the lines of both amendments.

An amendment precisely along the lines of the second amendment was moved in the Commons by Helen Goodman MP. It is surely essential for the courts to give due consideration to the effect of sentencing on dependants, not only from the point of view of those dependants but—given that we are necessarily talking about costs all the time—to avoid the costs that may arise from, for example, having to take children into care or the long-term damage that may be done to families, particularly but not exclusively in the context of mothers being sentenced to imprisonment.

The noble Lord, Lord Wigley, rightly referred to the fact that there is a high suicide rate among women prisoners. There is also an alarmingly high rate of self-harm. After all, one-third of women prisoners are single mothers; only 9 per cent of children with mothers who are serving custodial sentences are looked after by their father. That is not to say that there may not be other family members who take care of some children in those circumstances, but it is clearly a material factor.

It is of great concern that more than half of women prisoners suffer from severe mental illness, and half have suffered from domestic violence. They are clearly very damaged women. One might feel that children in that family are already vulnerable and exposed to risk. Notwithstanding the experience of my noble friend Lord Clinton-Davis, it is clear that women are not treated in exactly the same way in sentencing, as a higher proportion of first-time offenders among women are sent to prison than men and a higher proportion of women are sentenced for non-violent offences—both significant differences. There is a problem about sentencing of women, and we will be considering that under later amendments. Bearing in mind the higher proportion of those women who have dependent children, the amendment is extremely timely.

The noble Lord, Lord Howarth, raised an issue about the practicality of the situation and cited the experience of last summer, with courts sentencing people to custodial sentences in the middle of the night. It may be that custodial sentences were required. The question arises whether it was necessary for those sentences to take immediate effect without proper inquiry into the background circumstances. I would argue that that was not necessary, whatever the ultimate sentence may have been.

My noble friend Lady Corston has reported extensively on the position of women prisoners. Her report will no doubt be touched on in conjunction with later amendments. The spirit of that report should surely inform the Government’s attitude to these two amendments, which we heartily commend.

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

My Lords, this has been an extremely useful debate and one that has not necessarily followed previous structures where the Minister sits there under fire from all parts of the House. It has been interesting to hear the various experiences, particularly of noble and learned Lords and their opinions on whether the amendments are necessary or add to present practice.

The Criminal Justice Act 2003 sets out when a court must or should request a report. Amendment 175 does not address those provisions, which relate to the duty to explain a sentence after it has been decided. A pre-sentence report is designed to inform the judge or magistrate before they decide on a sentence, while the clause relates to duties to explain the sentence that is being imposed.

Nevertheless, under the system now in place, a pre-sentence report to the court by the probation service sets out a recommendation for sentence based on the background and the risk posed by the offender. The report will set out any factors relevant to the offending. That will include a history of alcohol or drug dependency or any home life factors that might be relevant. That report is, in effect, what one would understand by the term “social history”. Of course, the court would also have in front of it a print-out of previous convictions and it would decide which of these were relevant to the case.

--- Later in debate ---

[Baroness Farrington of Ribbleton]

My Lords, looking at public expenditure, sending a woman to prison and putting her children into care is an extremely expensive option, but in many cases the resources are not available for the alternative treatment that I know speakers in this debate and other noble Lords regard as a preferable option. The problem is that those who have to deal with a particular incident or the result of a series of incidents often cannot use that judgment. It demands lateral thinking to transfer resources from one course of action to another.

[Lord McNally]

I could not agree more with the noble Baroness. That was very much the thrust of the Corston report and of what the Government are trying to do in carrying through their justice reforms, particularly in the treatment of women offenders.

[Lord Thomas of Gresford]

I am concerned about the instructions given to probation officers who carry out pre-sentence reports. Will my noble friend look into the matter before Report and find out in what circumstances it is acceptable for a probation officer to fashion a pre-sentence report based simply on a videolink and ticking boxes on a form on the other side? When is that permitted and what particular guidance is given to probation officers in those circumstances?

[Lord McNally]

One of the reasons why I am always at a disadvantage when dealing with my noble friend is because he usually has some recent case in which he has personally participated that proves the case he is making. I have noted what he said and will check whether that is regular practice. As I said, the Appeal Court has made it very clear that if reports are not asked for or are deficient, that in itself could be grounds for an appeal.

[Lord Elystan-Morgan]

Further to the point made by the noble Lord, Lord Thomas of Gresford, is it not the case—I will be grateful if I am wrong—that under the Criminal Justice Act 2003, there is a requirement on the court in all cases to have a probation report in writing, save when the court sees it entirely proper to relax that rule, but not when a person is under 18? There is one other exception that I cannot remember, but it is quite substantial. In other words, will the Minister look not just at the amendment but at the parent provision, as it were, in the 2003 Act?

--- Later in debate ---

[Lord McNally]

Certainly, but the noble Lord, Lord Elystan-Morgan, makes my point. There are responsibilities already in previous legislation that make these amendments unnecessary. As always, I will check. I am sure that his memory is accurate, but if not I will write a correcting letter. In the mean time, with the offer of some talks on the amendment, I hope that the noble Lord, Lord Wigley, will withdraw it.

[Lord Dholakia]

Will the Minister consider the possibility of a code of practice on how such reports are produced and give some guidance to the probation service so that this matter can be resolved without necessarily any recourse to legislation?

[Lord McNally]

That is an interesting and helpful intervention from my noble friend, which I will take away and consider.

[Lord Wigley]

My Lords, the Minister said in his opening remarks that he was in an unusual situation in that he was responding to a debate that had not overtly attacked the Government or him. I am in a novel situation as well, having had the Minister’s response. I thank everyone who has taken part in this short debate. It has been very worth while. I pay tribute to the work undertaken by my noble friend Lady Howe in this whole area, but particularly in the context of today’s report on stalking. I am very grateful for her comments.

The noble Lord, Lord Clinton-Davis, has doubts about whether the amendments add very much to the law. The pressure that we have had as the tablers of these amendments has come from professional probation workers, who are at the sharp end and feel that a change is necessary. Whether that change is correctly encapsulated in these amendments may be another question. It may be that further guidance can be given to meet some of these points, but an issue certainly arises, otherwise there would not have been the wealth of examples. I could have quoted a dozen or more most moving examples that need the attention of Parliament.

Today’s report on the reform of the law on stalking by the independent parliamentary inquiry contains five recommendations that are directly relevant to the points covered by these amendments. I was grateful to the Minister for saying that he will give further thought to the amendments in the context of the debate we had last night as well as in that of the report, which add up to a need to give attention to this.

The noble Lord, Lord Thomas of Gresford, gave a very graphic example from direct personal experience. Quite clearly there needs to be some guidance to avoid some of the dangers he outlined in the context of videolinking. Whether that can be done by law or needs to be done in other ways, it is not a satisfactory situation and I can well understand how he feels about it.

The noble Baroness, Lady Farrington, referred to the severity of events not always being properly taken into full account. I can well understand that. The severity, the incidence and the whole background need to be taken into account before proper judgments can be made.

My noble friend Lord Elystan-Morgan spoke from his immense experience as a judge and a barrister. He emphasised the need for previous history to be available in determining appropriate sentences. Quite clearly, the history is a guiding factor in determining what is or is not appropriate. On dependants, he emphasised the need for courts to consider the totality of the case and the implications that the sentence would have in that totality of circumstances.

The noble Lord, Lord Faulks, questioned whether the courts are neglecting their duties. I imagine that most courts strive in every way they can to undertake their duties and to meet the requirements but, as always, safety nets in law are necessary when there could be courts that fail to do so. I refer to the evidence that has been sent to us by those who are involved in detail on these questions. I am sure that the Minister will take these points on board.

The noble Lord, Lord Howarth, asked me whether the intention is that the amendment should apply to magistrates’ courts. It was the intention that it should apply to both Crown Courts and magistrates' courts, but if there are problems here, by all means let us have a look at them. There might be problems with the workload on the courts and the nature of the courts. That might raise the question of which court is most appropriate for some of these matters. These are questions that no doubt the Minister will be willing to consider.

I thank the noble and learned Lord, Lord Judge, for being a supporter of these amendments. He referred to the need for rehabilitation and therefore for maximum information to be available to facilitate that purpose and minimise future crime. That must always be our objective.

I thank the noble Lord, Lord Beecham, for his support for these amendments from the Front Bench. He emphasised the degree of self-harm among women in prison. This must be very high in our minds as we address these questions.

I thank the Minister for his offer of discussions and further meetings to consider the implications of these amendments in the context of other developments. I am sure that the noble Baroness, Lady Gould, will be delighted to accept that offer, and on that basis I beg leave to withdraw the amendment.