Offender Rehabilitation Bill [HL]

Lord Ponsonby of Shulbrede Excerpts

Tuesday 11th June 2013 Lords Chamber

[Lord Dholakia]

I am delighted to support this amendment, which sets out a new clause before Clause 12 and deals with the presumption in favour of community sentence orders, as has been rightly pointed out. This is very much a probing amendment to see how the Minister will react. I will be brief. My noble friend Lord McNally, the Minister, is aware that every time we have discussed legislation on sentencing, particularly lower-level sentencing, I have advocated a cautious approach in favour of community sentence orders in place of custody.

Prison sentences of less than 12 months are the argument that we are putting forward. We all know that under the present provisions, custodial sentences of less than 12 months achieve very little corrective behaviour. On the contrary, we have seen that the impact on an individual without supervision can be very damaging indeed. We want to avoid this risk. Our amendment would help guard against the risk that the welcome provisions of the Bill for post-release supervision for short-term prisoners could lead to the courts imprisoning more people. At present, courts may decide in borderline cases not to imprison an offender because supervision in the form of a community sentence is more likely to divert him or her away from offending. However, with the new supervision arrangements, the court might feel that by imprisoning the offender for a short period it can get the best of both worlds—both the punitive impact of imprisonment and supervision of the offender when he or she is released.

We have discussed similar provisions in previous legislation. The custody plus provision that we introduced at one stage is history now, but we know what happened to it. This would be a short-sighted view as even a short period of custody can lead to an offender losing accommodation and a job and fracturing family links, all of which make it more likely that he or she will reoffend, which is contrary to the provisions that we will discuss in our debate on rehabilitating offenders. Sentences of less than 12 months are too short for a sustained attempt at rehabilitation in custody but are long enough to damage the community ties which those supervising offenders can build on in trying to prevent them reoffending.

There has been a dramatic increase in the number of options available to the courts when dealing with offenders. We know about simple things, such as matters of conditional discharge and fines. There are also community service orders, probation orders and attendance orders. These are just a few of the alternatives, yet prison remains at the heart of our criminal justice system, with other penalties often referred to as alternatives to custody. I believe that my noble friend Lord McNally is on the right track in the way in which this Bill deals with rehabilitation. He is right in putting the emphasis on society to try and deal with more offenders in the community rather than in prisons. That is not in doubt. We are now seeing the impact, which is less use of prison and a drop in the crime rate—a remarkable achievement by the coalition Government. No longer does the argument apply that prison works.

We are not suggesting that grave offences should in general attract other than long sentences, but past experience has led us to believe in two important principles of sentencing. This is not original, radical or revolutionary. In essence, it fits in with many Court of Appeal judgments over the years. First, the court should send to prison only those whose offending behaviour makes any other course unacceptable. Secondly, those who are sent to prison should stay there no longer than is strictly necessary. The amendment is designed to meet the Government’s objective on matters of rehabilitation. We should do this by avoiding the unintended increase in prison sentences. This would be an important discipline that would help against that unintended consequence. This probing amendment would make it possible for my noble friend the Minister to discuss the merit of our proposal with the Sentencing Council and to examine the possibility of setting up some indicators so that the process is adequately monitored.

[Lord Ponsonby of Shulbrede]

My Lords, I support the amendment moved by the noble Lord, Lord Marks. As he said, the current position is that an offence has to be so serious that a custodial sentence is imposed, but his amendment would put in place a presumption in favour of a community sentence. The additional part of his amendment is that special reasons have to be given in open court. My question to the noble Lord, Lord Marks, if it is appropriate to ask him, is: what might those reasons be? Would a breach of previous community orders be a special reason for it to be announced in open court that a custodial sentence will be passed? While I am sympathetic to the objectives of the amendment, I am open-minded about how it will be applied in court.

The Government’s impact statement highlighted the potential risk of increasing custodial sentences of less than 12 months because the sentencers themselves know that there will be a licence followed by a supervision period, which might be attractive to them. The noble Lord, Lord Marks, referred to the noble and learned Lord, Lord Woolf, making that same point in an earlier debate. My experience is that magistrates and district judges are always reluctant to commit an offender to prison and understand very well the current wording of the guidelines that an offence has to be so serious that only custody will do.

Nevertheless, it is an interesting amendment, which, as I said, I support. It will be for the practicalities of the Government to see whether there is a change in sentencing behaviour if the Bill goes through unamended. I am doubtful whether sentencers will change their behaviour; there will not be more custodial sentences because of the additional supervision period. Can the noble Lord, Lord Marks, give an example of the special reasons, to which he alluded, that might be appropriate for a custodial sentence?

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[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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[Baroness Hamwee]

My Lords, I will speak also to Amendment 32. I suspect that on Amendment 31 I am in for a little more teasing from my noble friend Lord McNally. The noble Lord shakes his head; that is a shame. In that case I am in for more teasing from the noble Lord, Lord Ahmad.

Clause 16 would insert a new section into the Criminal Justice Act 2003, with regard to the permission that is required before an offender who is the subject of a relevant order may change residence. In new Section 220A(4) we are told that there are two grounds available to either the officer or the court, which in effect is the appeal body here from a responsible officer’s decision. I would like to be completely sure that these are the only grounds. I am sure that they are, but I wanted to make the point.

We also wanted to add another provision which would, in effect, alter the presumption in these circumstances. When refusal was given, there would not simply have to be an opinion that a change of residence would be likely to prevent compliance with a requirement or hinder rehabilitation; it would go further. The purpose of the requirement or the rehabilitation would have to be significantly less likely to be achieved if the offender were to change residence. The reason is that a restriction on moving one’s home or one’s household—possibly having to move because of family problems such as the offender and partner splitting up, or because there are job prospects somewhere easier to reach from a new home—are all extremely important and part of rehabilitation. I am not convinced that every possible circumstance is covered by subsection (4)(a) and (b) of new Section 220A. I beg to move.

[Lord Ponsonby of Shulbrede]

My Lords, the noble Baroness, Lady Hamwee, raised some interesting points about the role of the responsible officer when an offender applies to change their residence. When considering this amendment, I immediately thought of all the potential problems that might arise. There is also the general point about the level of independence of judgment of the responsible officer when considering these applications. Two questions came to my mind. What would be the position if somebody with a series of convictions for domestic violence wanted to move into a house with a new girlfriend? That might hinder rehabilitation; it would be a judgment that would have to be made by the responsible officer. I do not know what the result might be. I am not sure that the responsible officer would necessarily be told that that was the situation.

Conversely, what would happen if the girlfriend wanted to move into the offender’s current address? If told about it, the responsible officer may have a responsibility to the new girlfriend to ensure that she is informed of the offender’s previous convictions. These are difficult matters which need a lot of expertise to be able to deal with them and there needs to be guidance—maybe non-statutory guidance—for the officers. In general, I am sympathetic to the amendments which the noble Baroness has moved, but I am conscious that there may well be many problems with making those decisions.

[Lord Ahmad of Wimbledon]

My Lords, I thank my noble friend Lady Hamwee for moving her amendment and the noble Lord, Lord Ponsonby, for his contribution.

Before responding to the substance of the two amendments, it may be helpful if I briefly set out the purpose of Clause 16. In essence, it would place a new duty on offenders serving community orders or suspended sentence orders to seek permission from their responsible officer or from a court before changing their residence. It replaces the existing requirement for offenders simply to notify their responsible officers after they have moved. It is intended to deal with cases where an offender moving from one probation trust puts at risk the effectiveness of their rehabilitation. For example, a move to a different area may bring to an end an established relationship with the offender’s supervisor. Instead, they may have to start again with a new supervisor from a different probation trust or, in the future, a different rehabilitation provider.

Noble Lords will know that the personal relationship between offenders and their supervisors is important to reducing reoffending. Evidence suggests that offenders with a positive relationship with their offender manager are less likely to offend. This will be particularly important with a move to a through-the-gate model of support, where an offender may have had contact with the same mentor or supervisor before and after release. Another example is a case where a specialist programme that the offender is attending is not available in the area that the offender is proposing to move to. In such cases, a court or responsible officer may consider that ending participation in that programme may set back the offender’s rehabilitation.

Clearly, there are many reasons to support, rather than prevent, an offender changing residence. For example, an offender may be moving to live with family or to take up a new job. We recognise that there will be many cases where a move would not have any negative impact on rehabilitation or on compliance with the order. For example, it may be a move of only a short distance which does not prevent the offender attending required appointments. Even with a long-distance move, programmes may be available in the new area that are equally as appropriate as those in the old area. We recognise this and have built it into the way that the clause is structured. The clause limits the circumstances in which a court or responsible officer can refuse permission to change residence to only two scenarios: where the move is likely to prevent the offender complying with a requirement of the order; or where the move would hinder the offender’s rehabilitation.

Amendment 31 would make explicit that these are the only grounds on which a court or responsible officer can refuse permission to change residence. However, the effect of the way that the clause is drafted is to provide already for these two circumstances, and only these two circumstances, to be grounds for refusal. I am very happy to make that clear to my noble friend Lady Hamwee. I hope that, on that basis, she will see fit to withdraw the amendment.

The noble Lord, Lord Ponsonby, who always comes to these matters with great experience and expertise, gave the example of an offender who had been committed for domestic violence. This situation would require a subjective assessment to be made and it would be for the responsible officer to weigh it up in the risk assessment. This is the sort of decision that professionals make on a daily basis. I listened with great care to the noble Lord’s suggestion about looking at the guidance. I am sure that we will look at it, and I take on board the comments that he made in that respect.

Amendment 32 would provide that a court or responsible officer cannot refuse an application to change residence unless the offender’s rehabilitation or compliance with a requirement of the order would be significantly less likely to be achieved. I hope that I can reassure my noble friend on a number of points. First, even if a move is likely to prevent compliance or would hinder rehabilitation, courts and responsible officers will still have to balance this with other factors. For the purposes of this clause, both courts and responsible officers, whether probation staff or from the voluntary or private sectors, are public authorities within the terms of the Human Rights Act 1998. This means that they are required to balance the impact of the proposed move on rehabilitation or compliance with the order against the offender’s interests in making such a move. They will have to consider the availability of rehabilitative support in the area that the offender wishes to move to, and the extent to which an offender could comply with a requirement in the new area. They will also have to consider the offender’s Article 8 rights. For example, an unemployed offender may wish to move to take up a new job or for family reasons—for example, if their partner is taking up a new job or if a parent is unwell and they need to provide them with care or support. In many cases, factors like these would outweigh concerns about compliance with a requirement or continued rehabilitation. It would be open to a responsible officer to take the order back to court to ask for it to be varied or revoked to suit the offender’s new circumstances.

I would also point out that the clause provides the safeguard of allowing offenders to apply to the court for a decision in cases where the responsible officer has refused permission to change residence, so in cases where offenders feel there are compelling reasons to move which outweigh any potential impact on compliance with a requirement or rehabilitation, they would be able to apply directly to the court to reconsider their case. I hope that these points reassure my noble friend, and, indeed, all noble Lords, that this clause provides a means of supporting the continuity of rehabilitation in cases where a change of residence could put it at risk without impinging on offenders’ wider family or work commitments. With those reassurances, I hope that my noble friend will feel able to withdraw the amendment.