Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Ponsonby of Shulbrede Excerpts

Tuesday 7th February 2012 Lords Chamber

Moved by

[Lord Ponsonby of Shulbrede]

177DA: After Clause 78, insert the following new Clause—
“Youth rehabilitation order: restorative justice requirement
(1) In section 1(1) of the Criminal Justice and Immigration Act 2008 (youth rehabilitation order: requirements), after paragraph (o) insert—
“(p) the court may include in a youth rehabilitation order a restorative justice requirement.”(2) Schedule (Restorative justice requirement: Criminal Justice Act 2003) shall have effect.”

[Lord Ponsonby of Shulbrede]

My Lords, this group of amendments seeks to address an opportunity to introduce restorative justice into the Bill. Indeed, in the previous group of amendments, the noble Baroness spoke of the Government’s enthusiasm for restorative justice and the amount of money that they are investing in it. Restorative justice was referred to in favourable terms in the original Green Paper. The noble Lord, Lord McNally, has spoken, too, with real strength of feeling on restorative justice. He has said:

“Restorative justice is not a soft option. Facing up to wrongdoing can be a difficult and unpleasant process”.

I agree with that, but I add for myself that I think that it is a necessary part of the restorative justice process. I take it as read that all parties are in favour of adding a restorative justice provision to the sentences tool kit.

My Amendments 177DA and 177G specifically address youth sentences. Magistrates in youth courts need to have confidence, of course, that non-custodial alternatives to custody will work, and restorative justice, including conferencing, has a definite place in the right circumstances. If it were a specific requirement of a youth rehabilitation order, which is the burden of my amendments, it would emphasise its value and ensure that restorative justice is at the front of the sentencers’ minds when they come up with the sentence. The whole principle of youth sentencing is that youths often lack the maturity of adults and, in particular, may well not have considered the effects of their behaviour on their victims. It is true and proven that restorative justice can bring this home in a powerful way.

I accept that at present a restorative justice requirement could be requested as part of a supervision requirement or activity requirement. These obviously already exist, but the advantage of introducing a specific restorative justice requirement would be to keep that option at the forefront of magistrates’ or judges’ minds when they are sentencing.

The amendments tabled by the noble and learned Lord, Lord Woolf, take a more ambitious approach, in that he specifically addresses the question of remand and having a pre-sentence restorative justice programme which would form part of a pre-sentence report. Presumably—although the noble and learned Lord will speak to the amendment himself—the sentencing bench would take into account how effective that pre-sentence restorative justice programme has been.

In conclusion, I regard restorative justice as an effective tool in the box. There is a substantial body of evidence that it works. I have made the point before, but I shall make it again, that judges and magistrates see the consequences of these community sentences when they fail. We see the failures, because it is the job of magistrates and justices to come up with further sentences when people fall down on their community sentences, whether in the youth or the adult courts. But I believe that restorative justice has a proven benefit and that this group of amendments presents an opportunity to put it into the heart of this Bill. On that basis, I beg to move.

[Lord Woolf]

My Lords, it may be appropriate if I speak now to Amendment 177DAA, which is in my name. Your Lordships will see that the amendment is supported by a trio of very distinguished names. Perhaps I may say a word about the right reverend Prelate the Bishop of Liverpool, who cannot be here today. Unfortunately, he has been ill but I know he was very anxious to be here to support the proposal in any way he could. The other distinguished name which I mention with deference is that of the noble Lord, Lord Hurd. He is the president of the Prison Reform Trust, and I am proud to indicate that I am its new chairman. The Prison Reform Trust and the Restorative Justice Council are very enthusiastic about these proposals.

I was grateful for what the noble Lord, Lord Ponsonby, said in regard to his own amendments because I certainly endorse what he said about their virtues. He also indicated that my amendment perhaps goes a bit further. That is true but although I claim no credit for this, because others more able than I played a part in it, I draw attention to the fact that the amendment proposes, first, to give the court discretion as to whether it remands,

“the case in order that the victim shall be offered the opportunity to participate in a process”.

Because I know that the issue of costs will be high in the minds of those who appear on behalf of the Government, I also draw attention particularly to the proposal that the,

“court may not remand the case for the purpose specified … unless it is satisfied that arrangements for a process of restorative justice can be or have been made in the area where the offender will reside”.

This proposed new clause is really meant to cover the situation which I believe we are in.

The virtues of restorative justice are becoming more widely known because of the hard work that has been done by various organisations in different parts of the country. I was pleased to hear what the noble Baroness said about the Government's intention on restorative justice. I am of course aware that the Minister has also spoken in its favour. Regarding this amendment, I urge that it can do something very positive. It can put the stamp of approval on restorative justice into a statutory form. It can then allow the process that has already started to continue, and as and when the positive aspects of restorative justice can be brought into practice in different areas, arrangements can be made. In this way, there can be a growth of the use of restorative justice which is in keeping with the nature of the exercise.

In appropriate cases, it very often has a most markedly positive effect, first of all upon the victim. When we are dealing with criminal justice, it is important that we should not neglect anything that might be positive for the victim, and I am sure that the Government do not intend to do so. The other aspect is that it helps the process that, as I understand it, the Government propose to adopt and will ease the exercise that needs to be performed.

--- Later in debate ---

[Lord Ponsonby of Shulbrede]

I thank all noble Lords who have taken part in this debate. I particularly thank the noble and learned Lord, Lord Woolf. He emphasised an important point which I forgot to emphasise, which is the importance of victims and how restorative justice can be of benefit to them. I also thank my noble friend Lord Judd. His central point was the importance of bringing restorative justice into the mainstream of sentencing—a point on which all noble Lords who spoke tonight agreed.

The noble Lord, Lord Dholakia, gave some statistics about victim participation rates. I found them surprisingly high—much higher than my own experience of restorative justice in youth courts, where our main problem is getting victims to agree to participate. That is a substantial problem that I have come across, but if the noble Lord has other experiences, I am encouraged to hear that.

The noble Lord, Lord Ramsbotham, gave his cautionary tale. I am afraid that I can give cautionary tales as well. Nevertheless, restorative justice is a good thing to aim towards and to try to implement. I was amused that the noble Lord, Lord Carlile, predicted extremely accurately what the Minister’s response was going to be to this group of amendments.

Having said all that, I am encouraged by the noble Baroness’s response and I beg leave to withdraw the amendment.

Amendment 177DA withdrawn.

--- Later in debate ---

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

My Lords, intimidation of witnesses is itself an offence, so one has to put these things into perspective.

The noble Lord mentioned a Keeling schedule. I note the point that he has made and shall take advice on it.

I am slightly amazed that either Justice or the noble Lord has cavilled at this proposal. It is said that decisions regarding remand and about sentences are completely separate. So they are, as the law stands; the question asked by this government proposal is whether they ought to be.

The Government consider that, in general, defendants should not be remanded in custody where it is apparent to the court that there is no real prospect of their being imprisoned if convicted. Let me be clear: this is not any Alice in Wonderland idea of sentence first, verdict afterwards. The court will not engage in a sentencing exercise in advance of the trial. The provision affects only cases where it is clear at the outset that the alleged crime is not serious enough to warrant a custodial sentence. Where that is the case, remanding the defendant in custody is generally disproportionate and not a sensible use of prison space. That sort of defendant will not pose a serious threat to public safety. Those defendants who pose such a threat will not pass the “no real prospect” test and so will still be liable to be remanded in custody.

Some respondents to the Green Paper argued that special considerations might apply where offences are committed in a domestic setting, in that an offence that does not require custody might nevertheless imply a risk of domestic violence if the defendant were bailed—the noble Lord raised that issue. We recognise the force of that argument, and have taken account of it. The provision incorporates a special exception to deal with that sort of situation. However, remand places are too expensive to waste on defendants who do not need them. We want to ensure that they are used only where it is necessary to protect the public.

I take note of what the noble Lord has said. I will consider and reflect on it but we believe that this is one simple way of stopping the use of scarce prison accommodation for people who, once they are tried and sentenced, are not going to be sent to prison. Clause 83 and Schedule 11 should stand part of the Bill.

[Lord Ponsonby of Shulbrede]

What would the noble Lord say to the case of failure to surrender? It is very common in magistrates’ courts to get people who repeatedly commit low-level offences and have no regard for court orders. They just do not turn up to court. Is the noble Lord really saying that there should be no threat of keeping them in custody until their trial?

[Lord McNally]

They can be tried in their absence and of course they can be picked up and put into custody. We are trying to deal with a very large number of people who go through our court system, are held in custody—taking up valuable prison space—but who from the very beginning it is clear will not receive any kind of prison sentence. If people do not turn up, of course they are in danger of being either tried in their absence or picked up and held in custody. If people try to intimidate witnesses, they commit a further crime for which they will undoubtedly end up in custody. In many ways, both Justice and the noble Lord are straining at gnats here. We are trying to deal with the very bottom end of cases. I will reflect on what he said, particularly on the Keeling schedule, and come back on Report.