Crime and Courts Bill [HL]

Lord McNally Excerpts

Monday 10th December 2012 Lords Chamber

[Lord Rosser]

My Lords, in her report a few years ago my noble friend Lady Corston drew attention to the reality that existing provisions, both in prison and in the community, are largely geared to male offenders and the needs of male offenders. The Corston report called for separate services, locally available, geared to the needs of women offenders in order to reduce as far as possible the disruption to family life and the impact on children The needs of their children and families have a considerable bearing on the ability of women offenders to attend programmes and avoid breaches of the order, and on the effectiveness of those programmes in having a positive impact on reducing reoffending. My noble friend’s report also drew attention to the number of female offenders in prison who had been, or were, the victims of domestic violence and sexual abuse, which are not normally issues that have to be taken into account by providers of services, or addressed by the skills they have to provide for male offenders.

A recent joint inspection report on alternatives to custody for women offenders highlighted the lack of women-specific provision for unpaid work and offending behaviour programmes, though it also said that women-only provision where available was often very successful. Investment in credible and appropriate alternatives to custody for women is essential. Programmes should be specifically designed for female offenders and address their needs. As well as reducing reoffending, community sentences designed specifically for women should help reduce the rate of breach as they should be capable of better fitting with women’s needs and responsibilities.

Schedule 16, dealing non-custodially with offenders, actually makes no specific provision or reference to women. The amendments seek to address these concerns by ensuring that probation trusts are required to make appropriate provision for the delivery of services to female offenders that will include provision for women to carry out unpaid work and participate in programmes designed to change offending behaviour with the particular needs of women in mind. I hope the Minister will accept this group of amendments and recognise the significant gap created by the absence of specially tailored arrangements for dealing with women offenders, most of whom, as has already been said, have committed non-violent offences, and whose sentences if they end up in prison can lead to the break-up of families, with potentially disastrous consequences for all concerned, not least the children who can end up having to go into care.

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

My Lords, we are fully aware of the point that the noble Lord, Lord Rosser, made in closing. One of the special factors about women in the criminal justice system and in prison is that the impact of their incarceration is an impact not only on themselves but also on their children and their families. For that reason, the Government have taken the Corston report of 2007 very much as the template of their approach to women. I have benefited from having a number of conversations with the noble Baroness, Lady Corston, over the past couple of years about the implementation and carrying forward of the report. I know that my colleague Helen Grant has also met the noble Baroness to discuss these issues.

It is interesting to note that the Government accepted 40 out of the 43 recommendations in the Corston report and made a range of commitments across government departments to take them forward. There have been real improvements in the past five years under successive Governments, including significant investment in women’s community centres to address holistically the underlying causes of women’s offending such as drug and alcohol addiction, mental health issues and histories of abuse.

The female prison estate was reduced by 400 places with the closure last year of HM Prison Morton Hall. We have about 4,000 women still in prison. However, the cross-government strategy includes: piloting and, subject to business case approval, rolling out liaison and diversion services in police custody and the courts by 2014; the piloting of drug recovery wings for drug and alcohol-misusing prisoners at three women’s prisons—New Hall, Askham Grange and Styal—and the development of intensive treatment-based alternatives to custody for offenders with drug or mental health problems, including four women-only services at Wirral, Bristol, Birmingham and Tyneside. In addition, there is the implementation of particular provisions in the Legal Aid, Sentencing and Punishment of Offenders Act 2012 with regard to remand and breach, which are expected to reduce the number of women in custody, and the delivery of the Home Office-led Call to End Violence Against Women and Girls, which will address the high levels of abuse experienced by female offenders. The commissioning of women’s services, including women’s community services, has been devolved to local probation trusts to ensure that provision is integrated into local services. This year’s £3.78 million of funding is now embedded in NOMS’ community budget baselines to allow for continued support of provision for women.

As I indicated in Committee when we last considered the issue, I fully agree with noble Lords that it is important that the criminal justice system is properly responsive to the needs of female offenders. I share the view that it is also essential that we take account of women’s experiences and needs. That is why I am pleased that the National Offender Management Service is still rolling out the Women Awareness Staff Programme, currently with a focus on training the trainers, so that they can provide support to staff and voluntary and community sector partners working with female offenders. This covers issues such as self-harm, relationships and abuse, and is complementary to the Women’s Aid best practice framework, Supporting Women Offenders Who Have Experienced Domestic and Sexual Violence.

I am also pleased to confirm that the National Offender Management Service has been working to develop the evidence base around what works with female offenders. Over the coming year, this work will support the strategic approach to female offenders as set out in the National Offender Management Service’s Commissioning Intentions discussion document, published in October of this year. All probation trusts are required by the National Offender Management Service’s Commissioning Intentions document to make appropriate provision for women in the community to address factors associated with their reoffending, using third sector and private sector services, where appropriate.

The National Offender Management Service has also published information on the specific needs of women to support the commissioning of relevant offender services for this group as part of the commissioning round for 2012-13. Already probation trusts across the country are coming up with innovative, new approaches to working with women that reflect the local situation. There are many good examples of women-only provision in the community. For example, Nelson Probation Office in Lancashire has a women-only reporting day. In Durham in the Tees Valley, the trust provides women-only reporting centres in each of the six local delivery units, with community based support and childcare provision located at these points. In Derby, there is a women-specific programme addressing violent behaviour.

--- Later in debate ---

Moved by

[Lord McNally]

113H: Schedule 16, page 255, line 24, leave out from “In” to “before” in line 25 and insert “paragraph 1(5) of each of Schedules 9 and 13 (certain requirements not to be included in orders to be complied with in Scotland),”

[Lord McNally]

My Lords, this group consists of three government amendments that, if not technical amendments, are certainly not controversial. Amendment 114 is intended to remove uncommenced elements of Section 67 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and make a minor consequential amendment to the Criminal Justice Act 2003.

I know that it might seem odd for this House to be considering again a provision that was debated so recently both here and in the other place, but it is right for us to do so. This amendment repeals provisions in the LASPO Act that, if brought into force, would mean that the courts could consider a case where an offender has breached a community order without reasonable excuse and allow the order to continue unchanged.

Having reconsidered their position, the Government do not think that it is appropriate for offenders to breach their community order and not face any sanction at all. We must ensure that both offenders and the public have confidence in community orders and take them seriously. Offenders will not take their order seriously if breaching does not have consequences. If an offender breaches a community order, we believe that a court should be able to take one of the three following actions: make the order more onerous; revoke the order and resentence for the original offence; or impose a fine. The last option allows the order to remain unchanged, while at the same time imposing a penalty for the breach. The courts did not have this power until it was included in the LASPO Act 2012. I am sure noble Lords will be pleased to know that it was brought into force on 3 December.

The Government believe that this revised framework provides the courts with the right options for dealing with failures to comply with community orders. It will still give the courts different options to tailor responses to breaches to individual offenders. However, it will also ensure there is a sanction of some sort for any offender who is found to have breached. Accordingly, on further consideration, we now believe that there is no good case for allowing offenders who fail to comply with court orders without a reasonable excuse to receive no penalty.

Amendment 114 also corrects a technical error in Section 150 of the Criminal Justice Act 2003. This section was amended by the Legal Aid, Sentencing and Punishment of Offenders Act, which prevents a court from making a community sentence where a mandatory minimum sentence for the new aggravated knife possession offences in the LASPO Act apply. The LASPO change inadvertently prevents the court from giving a 16 or 17 year-old a youth rehabilitation order, which is the youth equivalent of the adult community order for these offences. Amendment 114 corrects this technical error so that the new provisions work as they were originally intended to. Without this amendment, were the court to decide to set aside the mandatory minimum, it would not be able to give a youth rehabilitation order and would therefore have no option but to give a lesser penalty such as a referral order or a fine.

Amendments 113H and 113J are of a technical nature. The intention is to allow for the transfer of community orders and suspended sentences to Northern Ireland, where an order containing location monitoring under the new electronic monitoring requirement is made in England or Wales but the offender lives in, or is planning to move to, Northern Ireland. It is already possible to transfer existing orders to Northern Ireland, so this provision merely extends that capability to the new location monitoring provision that we are introducing in the Bill. Although location monitoring is not currently available in Northern Ireland under existing contractual arrangements, this will be addressed in the retendering of the contract in 2013. This provision will therefore enable appropriate cases to be transferred when the operational arrangements are in place in Northern Ireland. The transfer will be possible only where the court is satisfied that the appropriate arrangements are in place. This means that the tag will be capable of being fitted and the offender’s location will then be able to be monitored. If the court is not satisfied that the necessary tracking technology is available, the court in England and Wales will not be able to transfer the order.

Noble Lords will have noticed that the provision covers Northern Ireland but not Scotland. This is because at the moment there is no statutory provision for the imposition of tracking as a requirement in Scotland. If and when the time comes that Scottish courts can impose location monitoring as a requirement, we will bring forward legislation enabling the transfer of orders, including such requirements, from England and Wales to the Scottish jurisdiction. I beg to move.

[Lord Goldsmith]

My Lords, I rise slightly diffidently to ask a question about Amendment 114. I am not sure that I fully understood what the Minister said, though I am sure it is my fault. At one point I thought he was saying that the effect of Amendment 114 was to take out from LASPO an obligation to deal with breaches and insert instead a power to deal with breaches and give the court the opportunity to make its own mind up, but then I thought I understood him to be saying the opposite, that the purpose of this amendment is to ensure that where there is a breach of a community order the court is obliged to impose some penalty. I would be grateful if he would clarify that.

Perhaps the Minister could also clarify how it comes about that we are asked to amend LASPO quite so quickly and whether or not the passages that would be amended—indeed, removed—by this amendment were debated. I have no recollection as to whether or not they were, but it would be good to know if something that was debated, for example, in this House is now being removed in this way at 9.45 pm on the penultimate day of Report.

[Lord McNally]

My Lords, the noble and learned Lord is long enough in the tooth to remember other times when Governments have taken a second look at relatively recent legislation.

To clarify, Amendment 114 will remove uncommenced elements of Section 67 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The provision being removed would have empowered courts dealing with a breach of a community order to allow the order to continue unchanged. Not commencing the provision means that the court must make the order more onerous, resentence for the original offence or fine the offender for breach. In lay man’s language—which is the only language I can use, because I am a lay man in this—in the Government’s opinion, the LASPO Act left an option that they now wish to change, which is that breaches of the order could have gone unpunished. We do not think that that is a sensible way of getting people to take the orders seriously and therefore this amendment empowers the courts to make the order more onerous, resentence for the original offence or fine the offender for breach.

Amendment 113H agreed.

Moved by

[Lord McNally]

113J: Schedule 16, page 255, line 26, at end insert—
“(4) pIn paragraph 3(1) of Schedule 9 and paragraph 6(1) of Schedule 13 (pre-conditions for imposing requirements where offender will be living in Northern Ireland) before the “and” at the end of paragraph (a) insert—
“(aa) in the case of an order imposing an electronic monitoring requirement within section 215(1)(b)—(i) that any necessary provision can be made in the offender’s case under arrangements that exist for persons resident in that locality, and(ii) that arrangements are generally operational throughout Northern Ireland (even if not always operational everywhere there) under which the offender’s whereabouts can be electronically monitored,”.(5) In paragraphs 3(3)(b) and (4) and 13(b) of Schedule 9 and paragraph 6(3)(b) and (4) of Schedule 13 (references to the pre-conditions) for “and (b)” substitute “to (b)”.
(6) In paragraph 4(3)(d) of Schedule 9 and paragraph 9(3)(d) of Schedule 13 (disapplication of section 218(4)) for “subsection (4)” substitute “subsections (4) and (9)”.
(7) In paragraph 17 of Schedule 13 (reference to the pre-conditions) for “and (b)”, in the second place, substitute “to (b)”.”

--- Later in debate ---

What the Minister did say was that the Government aimed to set out a vision for the future system over the next few weeks, which was not the most helpful response to the questions that I had asked. In the light of the Government’s lack of enthusiasm for answering legitimate questions about their intentions for the probation trusts and services—one does not embark down the road of reorganisation and change without having some clear view about where one wants to go and why—it seems perfectly reasonable that it should not be possible for the Government to make any attempt to reduce significantly or change the role of the probation service without Parliament being fully aware of what is going on, without the opportunity for a full debate with Ministers having to justify their proposals to Parliament, and without Parliament having to agree to those changes. This is precisely what is provided for in my amendment, which I move.

[Lord McNally]

My Lords, I am not sure I shall be able to help the noble Lord, Lord Rosser; he asks lots of questions, most of which do not have a great deal to do with the Bill but have a lot to do with the Government’s declared intention to reform the probation service. We have certainly made no secret of that; indeed, he will be familiar with our consultation paper, Punishment and Reform: Effective Probation Services. He will be aware that this was the first step in determining our approach to how reform is delivered. Further consideration is under way to determine how best to meet the requirements of a probation service that delivers rehabilitation outcomes. We are in the process of carefully considering the way forward and will announce further details of our plans shortly. As I indicated previously, we will be keen to engage with probation staff, representative groups and all those who can make a contribution to the success of this important area of work.

It is interesting—I think I have explained this before to the noble Lord—that the reason why the powers to do all this are not in this or any future Bill is because they are within the powers of the Offender Management Act 2007. During the passage of that Act, there was a debate on the merits of parliamentary scrutiny when establishing, amending and dissolving probation trusts. In the Bill as originally published, no parliamentary procedure applied to the power in Clause 5(1) to establish, alter the name or purpose of, or dissolve a probation trust. The Delegated Powers and Regulatory Reform Committee noted that precedents existed for that, but felt that it lacked sufficient information about how trusts were to be established to make a recommendation about its appropriateness in this context. The committee therefore drew the matter to the attention of the House. In light of the debates on this subject, the previous Administration accepted on the floor of the House that this important power should be subject to parliamentary procedure. The noble and learned Baroness, Lady Scotland of Asthal, asserted that the affirmative procedure would be excessive but tabled a government amendment introducing a negative procedure, which was accepted by this House. On that basis, the Government believe that the parliamentary scrutiny set out in the Offender Management Act 2007 is adequate and we share the view taken by the previous Administration that the affirmative procedure would be excessive. I therefore ask the noble Lord, Lord Rosser, to withdraw his amendment.

[Lord Rosser]

I thank the Minister for that reply. He started off seeking to suggest that the issue raised in the amendment is not really relevant to this Bill, but it certainly is. The Bill seeks to make significant changes to community sentencing and the delivery of those services will be dependent on an effective and properly resourced probation service. It will not be particularly easy to deliver those changes in relation to community sentencing—of course the changes also cover restorative justice and the role of rehabilitation in reducing reoffending—if at the same time it is the Government’s intention to, metaphorically speaking, turn the probation service upside down. That must clearly be a relevant issue in the Bill. Is the probation service geared, both at the present time and in future, to delivering the objectives and changes that the Government wish to make in community sentencing?

The Minister made reference to the 2007 Act. I appreciate that it is his prerogative if he wishes to express an alternative view, but I do not think that the kind of transfer or apparent transfer of responsibilities away from the probation service that seems to be envisaged at the moment was envisaged at the time of the 2007 Act. Obviously, it is the potential implications of what the Government may be putting forward that have led to this amendment calling for the affirmative procedure to be used. I am sorry that the Minister has not been able to give any assurances at all about the extent to which the existing probation service will continue in being. He has not been able to give any assurances about what responsibilities may or will not be transferred away from the existing probation service. Indeed, put bluntly, he has not really been prepared to say anything at all, which will certainly do nothing to damp down some of the concerns over what the Government’s real intentions are. I appreciate that the Minister is not going to say any more so I have little alternative but to leave it at that. I beg leave to withdraw.