Criminal Justice and Courts Bill

Debate between Lord Ponsonby of Shulbrede and Lord Marks of Henley-on-Thames

Wednesday 22nd October 2014 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, my amendments in this group, which largely repeat the amendments I put down in Committee, have a simple purpose, which is to permit the court a discretion as to whether or not to impose the criminal courts charge. Because they largely repeat earlier amendments, I will be brief.

Under the new Section 21A proposed in Clause 46, the court has no discretion but to order a person over 18 convicted of an offence that is not excluded by regulations to pay the charge. Since Committee, I have moved towards the Government’s position by suggesting in these amendments that a relevant court must “consider ordering” that the criminal courts charge be paid, so that while they would have a discretion, the courts would receive a clear message that such a charge should be expected in the generality of cases, and the legislation would act as an indication as to how the discretion should generally be exercised.

However, I maintain the general position I took in Committee in suggesting that it would be completely senseless to make an order that a criminal courts charge be paid in every case. There would be many cases heard every day in criminal courts where orders were made and everyone in the court would know that there was not the slightest chance of the charges ever being paid. That would make a nonsense of the provisions, I suggest, and would risk bringing the courts into disrepute. Relying on a later power to remit the charge in such cases is unnecessarily burdensome on the courts and wasteful of everybody’s time.

Furthermore, I am concerned that imposing a charge upon offenders who are already without means and often in serious personal and financial difficulties is likely to reduce their chances of rehabilitation. The outstanding charge may have a significant impact on their ability to secure work and to meet necessary expenses, particularly where they need credit in order to do so and the outstanding charge will impede their obtaining such credit. For those reasons, I suggest that the imposition of a criminal courts charge needs to be discretionary.

I further suggest that it is not sensible to deny the court any discretion as to the level of the charge to be imposed. That is the reason for my Amendment 125D. New Section 21C would require the amount of the charge to be the amount specified in regulations. My amendment would simply make that amount a maximum. There will be cases where offenders of limited means will wish, or at least be prepared, to meet their obligations and pay the charge if they can afford it. I suggest that a sensible way of dealing with such offenders is for the court to set the charge at a level the offenders can afford, rather than charging them the full amount specified in the regulations and forcing them to come back on an application to remit the charge at a later date or, worse, leading them to the position where they do not pay anything. I beg to move.

[Lord Ponsonby of Shulbrede]

My Lords, I shall speak to my amendments in this group. I support 100% what the noble Lord, Lord Marks, has said. I moved similar amendments in Committee and the amendments that I am putting forward on Report are by way of a compromise. I regard my position as a fallback position and the position of the noble Lord, Lord Marks, as the primary position on judicial discretion.

My Amendments 125, 126 and 127 would allow the Criminal Procedure Rule Committee to specify the circumstances in which the charge should not be imposed. The idea behind this group of amendments is that it would provide an opportunity for the CPRC to ensure appropriate judicial discretion, while providing greater clarity than a more permissive wording, which is what the noble Lord, Lord Marks, is seeking. Of course, the CPRC operates independently of government.

I also thank the Minister’s officials for clarifying to me in the past few days that the court’s charge can be treated the same way as the victim surcharge under Section 135 of the Magistrates’ Court Act 1980, which gives magistrates a general power to order a brief period of detention when a defendant is in default of any fine imposed by the court, particularly when that defendant is homeless and cannot pay. This, as any magistrate or lawyer will know, is a regular occurrence in London magistrates’ courts. This is the only practical way of dealing with this type of case.

I conclude on a wider point, by reiterating some of the points that the noble Lord, Lord Marks, has made. Notwithstanding the people who are homeless and literally do not have any money in their pockets, there are many other people we regularly see in courts who are on benefits, perhaps because of disabilities. Any additional cost that is given to them will remain unpaid and accrue as a greater debt. Every day of the court’s week, magistrates and judges impose fines where they have discretion and come up with appropriate fines that they believe are realistic. They put in place tough measures, namely collection orders, to recover those fines, so magistrates and judges are well able to exercise discretion, and they should be given the opportunity to do so over the court’s charge.

Criminal Justice and Courts Bill

Debate between Lord Ponsonby of Shulbrede and Lord Marks of Henley-on-Thames

Monday 20th October 2014 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, Amendment 6 is an extremely modest amendment. Your Lordships will appreciate that Clause 7(3) permits the Secretary of State to make electronic monitoring conditions compulsory. I spoke on this issue in Committee, arguing that the imposition of an electronic monitoring condition should remain a matter for the court. I argued that the power to impose such a condition on a prisoner’s release on licence was, indeed, a desirable and sensible power, and that such a condition should be imposed where appropriate. However, I also argued that there may be circumstances in which it would be impractical or unnecessary to impose such a condition, for example where an offender was disabled or was to be hospitalised upon release.

In response to my amendment, my noble friend Lord Ahmad said that he was aware of the concerns that physical or mental health issues or possible practical problems might make compulsory electronic monitoring conditions unsuitable. My noble friend also gave, as an example of impracticality, a case where arrangements could not be made for recharging the battery in the tag—he was right to do so and there may be many other examples of impracticality. However, my noble friend contended that there was flexibility in the order-making power under the subsection that would enable these cases to be taken into account. I am concerned about that. My noble friend said that the Secretary of State would be able to,

“provide for cases in which the compulsory condition should not apply”.—[Official Report, 14/7/14; col. 402.]

I regret that I do not read the clause in that way. While there would, under subsection (3)(3)(b), be power to make provision in relation to persons selected on the basis of criteria specified in the order or on a sampling basis, that is not the same as enabling cases to be dealt with on a case-by-case basis.

The amendment would, quite simply, enable the Secretary of State to incorporate into the order a small element of judicial discretion, whereby, in a given case, a court could decline to make an electronic monitoring condition if it considered it would be unjust, unnecessary or impractical to do so. It would be for the Secretary of State to decide whether to incorporate such provision as I suggest in the order he makes. For that reason, I reiterate that my amendment is modest and limited. It is intended to be helpful. I beg to move.

[Lord Ponsonby of Shulbrede]

My Lords, I want to speak in favour of the amendment of the noble Lord, Lord Marks, but to slightly widen the point that he made. It is my understanding that if one gives a suspended sentence when sentencing and includes, as a part of that, a curfew, then the court is obliged to provide that the curfew is tagged. Very often that is appropriate, but not always. I have certainly dealt with cases where it was totally unnecessary to tag the offenders concerned and it just added to the cost of the whole sentence. There should be judicial discretion when giving tagged curfews in suspended sentences.

Criminal Justice and Courts Bill

Debate between Lord Ponsonby of Shulbrede and Lord Marks of Henley-on-Thames

Monday 14th July 2014 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I understand that I am speaking after my Front Bench friend, but I want to make a couple of points. I understand from the noble Lord, Lord Marks, that the general intent of this group is to lower the hurdles by which cautions would be administered as a whole. He set out very clearly a different approach, but I think it is right to say that it is a lowering of the hurdles as a whole. As he said in his introduction to the amendments, we have seen a reduction in the number of cautions which have been administered in recent years.

I want to make a point that I have made in other contexts. The Government have set up scrutiny panels to review the appropriateness or otherwise of cautions that have been put in place. I thank the Minister for writing to me about this scheme. There are various pilot schemes which are following models in different parts of the country. They are in their very earliest stages and do not cover the whole country. Therefore my question for the noble Lord, Lord Marks, is about whether it is a bit premature to bring these sorts of amendments forward, when we do not have a proper answer to the question about whether the scrutiny panels are properly reviewing cautions and whether the group of people who sit on those scrutiny panels are satisfied that cautions are being appropriately administered. We do not even know exactly how those scrutiny panels will report their findings, let alone what those findings are. I understand that this is a debating point and that these are probing amendments, but I wonder whether putting forward this alternative approach is a bit premature.

[Lord Marks of Henley-on-Thames]

I invite the noble Lord to deal with the proposition that his question ought to be referred to the Minister. Clause 15 is extremely restrictive of the use of cautions, and if it is premature to reform the rules for the use of cautions or the regime under which cautions are administered, as the noble Lord suggests, it is surely premature to reform it in the very radical, restrictive way proposed by Clause 15. The noble Lord is right to suggest that my amendments reduce the restriction, but at the same time they nevertheless preserve some restriction. The radical amendment is the new clause.

[Lord Ponsonby of Shulbrede]

I take the point the noble Lord has made. I was really seeing this in the wider context of not just cautions but of out-of-court settlements as a whole. As we know, in London, for example, there are many tens of thousands of out-of-court settlements. Many of them are not cautions but other forms of out-of-court disposals which should be addressed by the scrutiny panels as and when they are running. Nevertheless, the point the noble Lord, Lord Marks, made is a fair one, and I acknowledge it.

Offender Rehabilitation Bill [HL]

Debate between Lord Ponsonby of Shulbrede and Lord Marks of Henley-on-Thames

Tuesday 11th June 2013 Lords Chamber

[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.