Sentencing Act 2020 (Special Procedures for Community and Suspended Sentence Orders) Regulations 2023

Lord Ponsonby of Shulbrede Excerpts

Monday 26th June 2023 Grand Committee

Moved by

[Lord Ponsonby of Shulbrede]

That the Grand Committee takes note of the Sentencing Act 2020 (Special Procedures for Community and Suspended Sentence Orders) Regulations 2023 (SI 2023/559).

Relevant document: 43rd Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument)

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, these regulations introduce pilots of an intensive oversight system for certain less serious offenders. The Explanatory Memorandum states that,

“this legislation is expected to: improve judicial confidence in the sentencing system, increase offender compliance, reduce reoffending and reduce the use of custody”.

The regulations will come into force on Monday 26 June.

In July 2022 three sites were selected with the approval of the senior presiding judge and the Secretary of State. Substance misuse ISC pilots will be established in Teesside Crown Court and Liverpool Crown Court, and the women’s ISC will be piloted in Birmingham magistrates’ court. It needs to be remembered that, in the sentencing White Paper 2020, the Government committed to pilot a problem-solving approach, which is essentially what this is, in up to five courts in England and Wales. It is regrettable that they are now committing to only three.

The Ministry of Justice describes ISCs as a “problem-solving approach” to offender management, in which those receiving some community and suspended sentences have regular contact with a multidisciplinary team including the judiciary, health professionals, police and probation officers and specialist support in relation to housing, education and skills. Local authorities will reportedly be a key part of the team in ISCs.

ISCs will seek to address an offender’s induvial needs, such as substance misuse, housing and education, with the ultimate aims including reducing reoffending and the use of custody. Judges and magistrates will oversee the process and be able to incentivise good progress, such as by relaxing conditions, while sanctioning behaviour that fails to meet agreed standards by increasing drug testing, court reviews and periods in prison, for example.

It is worth putting this in an international context. According to the Centre for Social Justice, there are more than 3,000 problem-solving courts in the United States of America and Canada, and the model has spread across the world, notably to Australia, New Zealand, Ireland, Norway and Belgium. The US was an early adopter, with examples including the Miami drug court, which was established in 1989, the New York Midtown Community Court, established in 1993, and the Red Hook Community Justice Center, established in 2000.

International evaluations have variously highlighted improvements in offender compliance with court sanctions, greater levels of offender accountability and improved collaboration with external agencies. Despite its international appeal, problem-solving justice has had limited uptake in England and Wales. Although a handful of problem-solving community courts were established as pilots during the mid-2000s, their evaluations, while important, cannot be generalised, and successive Governments have been unwilling to invest further in an approach that is lacking “credible data”.

Although advocates continue to argue that problem solving should be better mainstreamed in the criminal justice system of England and Wales, their arguments are sometimes based on the fact that the model has great potential rather than a proven track record in reducing reoffending rates.

I will list some of the challenges I see with this model, the first of which is administration. To achieve consistency of the Bench, which is a core requirement of the ISC model, the current system for court listings and rotas would need to be amended to enable the same person—or group of people, if they are magistrates—to sit on the same case. The current system allows for drug courts, so there is no reason why this method could not be utilised more widely, but it would require HMCTS to change its systems.

The second challenge is effectiveness. To date, no evaluation has been published of the Manchester women’s problem-solving court, and the evaluation of the Aberdeen court was also limited. This is a big issue, and something the ISC pilots will need to address. Previous evaluations, such as those of the Liverpool community court and the Salford problem-solving court, found that there was no difference in rates of reoffending between those who went through the problem-solving stream and those who did not.

My experience of the drug court at Hammersmith magistrates’ court was that the magistrates—which I was at the time—had to sit on a separate rota. That rota was discontinued after a number of years because the Ministry of Justice, as I understood it, was unable to demonstrate that there was a reduction in reoffending by offenders through this separate rota approach. At the time, this was a disappointment and frustration to me and my colleagues because the data had not been gathered to make an informed assessment of the approach. Since it could not be proven that it worked, it was discontinued. However, that was not assessment of data which had been gathered; the data simply had not been gathered.

The next challenge is the importance of a collaborative approach. As the Minister will know, there is currently a postcode lottery of specialist services, which is an obstacle to the ISC vision. There were hours of oral evidence at the recent Lords’ Select Committee on this very topic, and the Chief Inspector of Probation raised it with the Select Committee a few weeks ago. Without the necessary agencies to create the holistic, multiagency scaffolding required to support people in the community, a specialist order is very difficult to put in place in practice. The backlogs from the pandemic mean that offenders are still unable to access specialist support services in some areas of the country. The lack of specialist services, including proper buy-in from the Probation Service, will have an impact on sentencer confidence.

A further challenge is appropriate training. Any expansion of the problem-solving model would certainly require investment in training opportunities, which is of particular concern to magistrates who have seen their Judicial College and HMCTS training budgets slashed. Budget issues notwithstanding, I am sure that many magistrates and judges would like to sit on these types of courts and use the additional skill of building an appropriate relationship over a period of time to try to discourage reoffending.

Although, as I understand it, this issue was not raised by magistrates or judges, most practitioners—probation officers, as well as keyworkers or other support services—have expressed concern that the model should not be used as a route to up-tariffing in the name of helping people, whereby people would be given a longer sentence than they might have otherwise got because of the help available. Their professional experience was that many people struggle to juggle the many elements of their orders with different appointments and things like that. The concern expressed by these professionals, such as those in the Probation Service, is that, given the chaotic and complex nature of their lives, you could, potentially, set people up to fail. The problem-solving model should not be touted as the universal answer for all people serving community orders, and suitable holistic support should continue to be provided for those who would not respond positively to additional court reviews.

To be clear, I support and welcome this model, but I have raised my concerns to make sure that we go into these pilots with our eyes open about the potential pitfalls. It is disappointing that no new money is being committed to these pilots and that the scope of the pilot schemes has been reduced. Nevertheless, intuitively, it sounds like a good model. I support it, but it needs to be underscored and supported with sufficiently robust data collection so that a realistic assessment can be made for its potential future extension. I beg to move.

[Lord Jackson of Peterborough (Con)]

My Lords, I shall speak briefly on this statutory instrument. I have always taken an interest in the criminal justice system and have taken the view that, if you are to impose relatively draconian sentences on some prisoners, you should at least also give them an opportunity for redemption and to improve and turn around their lives for the benefit of their families, not least, and the wider community. In the other place, I strongly supported the coalition Government’s rehabilitation of offenders Act 2012, which I thought was a brilliant piece of legislation, in that, hitherto, “low-level” prisoners were discharged from prison and forgotten, and they very quickly got into the clutches of drug dealers and others. It goes without saying and is axiomatic that drugs have a huge negative impact on our communities.

I shall elucidate some of the points that the noble Lord made. I was slightly disappointed that the Explanatory Memorandum that accompanies this instrument is not more detailed. I find it quite odd that the analysis of the work of the Liverpool community court should come up with the statistics referenced by the noble Lord. It is very important to interrogate why that was and why there was no demonstrable difference between recidivism in that court’s area, compared with more traditional courts.

Obviously, another issue is money. If you are going to establish a pathfinder scheme in order to keep people out of the prison estate and give them a chance to turn their lives around, and have a multidisciplinary approach with adult social care, children’s services, the police, et cetera, you need to spend the money. I am not someone who always calls for tax rises but, for the long run, you need to spend the money on this bespoke project, and you probably need more than three projects. It is disappointing that only three projects were allocated under the auspices of these regulations, because the excellent White Paper published in 2020 alluded to the possibility of five or more projects.

The Government may have missed a trick in not allowing a wider degree of public consultation in the design and review of these pilot schemes. I understand that they have to be expedited and that the Government have to move rapidly in order to put processes in place, but there is an awful lot of experience, knowledge and skills in the third sector and civil society, which could have been brought to bear in assisting the Government in developing these schemes. The Opposition spokesman mentioned Manchester and Salford. Lots of people have been involved and will have real-world experience.

My final point is on analysis and evaluation. It is frankly scandalous if we are really looking at a comprehensive evaluation taking another four years. I understand that you have to look at reoffending rates at the end of a period, but we already have a small cohort in this study; to wait another four years, which would be half way through the next Parliament and Government, for us to make a value judgment on its success or otherwise would let down taxpayers. On that basis, Ministers would perhaps be wise to look again at the efficacy of such a long-running period.

--- Later in debate ---

[Lord Bellamy (Con)]

My Lords, in further answer to a question asked by the noble Lord, Lord Beith, I understand that we will be engaging external contractors to support the evaluation of these proposals. So there will be some element of external verification, but I expect your Lordships’ House—indeed, both Houses—to take a close interest in how we are getting on and to demand explanations and information. I hope that there will be a collaborative approach all the way through.

I will take some of the other points raised; I have already touched on some of them. It is very important that we have evaluations and the same judge, and that we assemble the relevant data. As emphasised by noble Lords, it is particularly important that we take a collaborative approach, which the noble Lord, Lord Ponsonby, referred to as the “scaffolding”, in which there is a truly multiagency approach and access to services.

To take up the point raised by my noble friend Lord Jackson, this is a holistic operation because we are already engaged in rehabilitation for offenders in prison. We have employment advisers in prison and local employers helping them into jobs. We even have small things such as the Friday release Bill, which enables people to access services before the weekend and further arrangements are in train to make sure that there is accommodation, a bank account, a national insurance number and all those things, and they are beginning to have an effect. That aspect is not underestimated at all. Investment in training is accepted, and we should make sure that those who engage in this kind of work have appropriate training.

As to the concern that was said to have been expressed by probation officers that this is a route to “up-tariffing”—I think that was the expression used—that is not the aim of the exercise at all. One has to be very alert to making sure that nothing of that kind occurs. The law of unintended consequences has the habit of striking when it is least expected, but this is something to keep an eye on. As I said, the rehabilitation of offenders is very much at the forefront of our minds.

My noble friend Lord Jackson marked our paper as “could do better”. I do my best to reassure your Lordships that this is a sure start. As others have said, let us hope it leads to wider things and presents a real opportunity to make a difference. With that, I commend the statutory instrument.

[Lord Ponsonby of Shulbrede (Lab)]

Before the noble and learned Lord sits down, can he explain why two Crown Courts and one magistrates’ court were chosen? The magistrates’ court is for women offenders. Of course, the vast bulk of low-level drug offences are seen in magistrates’ courts, not Crown Courts, so I would be interested to know whether there is an explanation for choosing this particular combination of courts.

Also, the noble and learned Lord just said that there was not an overwhelming response when looking for pilot courts. I suggest that the reason for that is that a number of the courts have been round this course before. In the past, similar types of arrangements have run into the sand for various reasons. I gave my own example of the drug court at Hammersmith Magistrates’ Court. I sat on that separate rota and it was discontinued because it could not demonstrate the benefit of that approach.

From what the noble and learned Lord has said, it seems that there is a more holistic approach to gathering data in order to make a proper assessment; that is a very important element of what is being suggested and piloted here. I think that we just need to acknowledge that, in the ranks of court professionals and the professional people who have advised me, there is some scepticism about this. We need to be open-eyed about that because this idea has been tried a number of times and not been fully evaluated. Good luck to it this time but there needs to be a proper approach to form a proper basis for future decisions.

[Lord Bellamy (Con)]

My Lords, I am not sure that I am able to give the noble Lord, Lord Ponsonby, a comprehensive answer to his first question as to why we did not do more in magistrates’ courts. We certainly wanted, in terms of the Crown Court, to see to what extent we could divert from custody, which tends to be the issue in the Crown Court. That is why two Crown Courts were chosen.

On the magistrates’ court, it was felt that we should give priority to the problem of low-level offending by women. That is an area where it is felt that this approach can make a significant difference. One is working to some extent with the art of the possible and the resources available.

I have more or less finished. The last thing that I want to say was that the noble Lord, Lord Ponsonby, rightly expressed scepticism. This approach has been tried before and the results have been rather depressing. The difference this time will be in the data and the evaluation. We have concrete evidence so we can convince everyone that it is working.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank everybody who has taken part in this brief debate. I look forward to discussing this issue further as the pilots evolve and I commend my Motion to the Committee.

Motion agreed.