Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Ramsbotham Excerpts

Tuesday 7th February 2012 Lords Chamber

Moved by

[Lord Ramsbotham]

177AA: After Clause 71, insert the following new Clause—
“Community supervision requirement for offenders aged 18 to 25
(1) In section 177 of the Criminal Justice Act 2003, after paragraph (l) insert—
“(la) in a case where the offender is aged 18 or over and under 25, an intensive community supervision requirement,”.(2) The court if it makes a community order which imposes an activity requirement, may specify in relation to that requirement a number of days which is more than 90 but not more than 180.
(3) An activity requirement made under subsection (2) is referred to in this Part as an “intensive community supervision requirement”.
(4) A community order which imposes an intensive community supervision requirement must also impose—
(a) a supervision requirement, and(b) a curfew requirement (and accordingly, if so required, an electronic monitoring requirement).(5) A community order which imposes an intensive community supervision requirement (and other requirements in accordance with subsection (4)) is referred to in this Part as “a community order with intensive community supervision” (whether or not it also imposes any other requirement).”

[Lord Ramsbotham]

Since my noble friend Lord Adebowale is not in his place and as I have my name to the amendment, I hope that I may say what I was going to say anyway in support of it. This amendment and the two following amendments to which I shall be speaking, Amendments 177B and 177C, refer to a group of offenders who traditionally have been disregarded for too long, certainly as far as the Prison Service is concerned: namely, those who are over the age of 18, and therefore no longer children, and those in the young adult group who are aged either 21 or 25. That latter age occurs increasingly in people’s thoughts. My noble friend proposes that a community supervision requirement for offenders aged 18 to 25 should be earnestly considered.

In 1997, when I was Chief Inspector of Prisons, I conducted a thematic review, which I entitled Young Prisoners, because I was enormously concerned that prisoners in this age group were simply not being looked after, particularly in view of the arrival of the Youth Justice Board. The Youth Justice Board was successful because it laid down conditions for the treatment of children in custody and in the community. However, in custody, in what were called split sites, where there were people between the ages of 15 and 18 and 18 and 21, the facilities were not sufficient to provide adequate support for both groups. However, to honour the requirements of the contracts laid down by the Youth Justice Board, the Prison Service made the facilities available first for the use of children and then what was left was available for young offenders aged 18 to 21. Unfortunately, this meant that very little provision was left in many places—little educational and employment provision and little use of gym facilities. In particular, given the demands of the Children Act, staff were not available to do much with these prisoners and far too many of them spent all their time in their cells doing nothing.

I advocated three things in 1997. My report states:

“While there is a policy section, no one in the Prison Service has operational responsibility for young people: consequently there is an absence of overall vision and leadership in the development of regimes to challenge criminal attitudes and behaviour and prepare young offenders for a future free from offending”.

The report also states:

“Young adults should be separately managed by a reshaped organisation within the Prison Service which should be led and managed by a Director of Young Prisoners accountable to the Director General for all establishments or parts of establishments holding young adults”,

and that:

“Units holding young adult prisoners should have performance criteria related to specific outcomes for young prisoners, some of which should be shared with other Criminal Justice and community agencies”.

Unfortunately, absolutely nothing has happened. There is still a policy branch in NOMS, but there is no one responsible and accountable for these people. That applies in NOMS, and therefore, more worryingly, both to prison and probation. There is no one responsible and accountable for seeing that proper programmes are designed for this group.

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Moved by

[Lord Ramsbotham]

177B: Clause 73, page 53, line 9, at beginning insert—
“( ) In section 16(1) of the Powers of Criminal Courts (Sentencing) Act 2000 (duty or power to refer certain young offenders to youth offender panels) for “18” substitute “21”.”

[Lord Ramsbotham]

My Lords, I shall speak also to Amendment 177C. These amendments are complementary to Amendment 177AA because they refer to the group called young adults. In this connection, I remind the House that on many occasions I have said in other debates that the trouble with the criminal justice system is that the Ministry of Justice simply does not know the cost of imprisonment or probation. That is not to say that it does not know how much money is given to it for prison and probation, but it does not know how much money is needed to do the things that it says it wants to do with and for offenders. Until it knows how much money it needs to do with and for, it cannot know how much it does not have and therefore what it cannot do, and therefore what it needs to ask for in order for it to be able to do more.

This is something that always amazed me from the moment I went into the Home Office in 1995 because every year in the Ministry of Defence we used to go through what was called a basket-weaving exercise. We would be asked to cost the White Paper or whatever targets we had been given. We did that. Inevitably it came up that more money was needed to do what we had to do than we have been given, so the Ministers were asked to go and try to get more money out of the Treasury. They never did, so we then had to go through what we called a basket-weaving exercise, where you put what you had to do into “desirable”, “essential” and “nice to have” baskets. Then you went to the Ministers and said, “Look, here are the implications of not having enough money. What are we not to do?”, and then it was up to the Ministers to make the decision.

I thought, naively, when I went into the Home Office in 1995 and heard people saying there was not enough money, that this is what would have happened and the Ministers would therefore know what they could not do and what they needed to ask for. Nobody knew—nobody knows now. There is all this talk about not having enough resources—we do not actually know how many resources we have got to apply to which because we have not done the total sum. This is something that needs to be done in order to get discipline into the system. But that is by the way.

I welcome the reforms in Clause 73 that give flexibility to the courts in their response to individual offences and encourage specific support needed to reform a child’s behaviour. But that is talking about children. The purpose of these amendments is to extend this approach to young adults by requiring the Probation Service to replicate the work of youth offending teams with children in what are called referral orders. The figures suggest that these referral orders for children, which encompass a restorative justice approach within a community setting and have been available to sentencers since 2002, have the lowest reoffending rates of all juvenile court-imposed sentences. One-half of those given a custodial sentence reoffend within one year, and two-thirds within two, but the rate for referral orders is 37 per cent—not great, but a great deal less than that for custodial sentences.

The Powers of Criminal Courts (Sentencing) Act 2000 made provision for referral orders except for offences so serious that they merited custodial sentences or so minor that they merited only a fine or an absolute discharge. This ruling was amended by the Criminal Justice and Immigration Act 2008, which laid down that referral orders must be imposed when children aged 10 to 17 plead guilty to an offence that is punishable with imprisonment but have not been previously been convicted of an offence. That refers to first-time offenders as children. Orders may also be imposed when an offender who is pleading guilty has already been convicted of another offence, or where a youth offending team recommends that a second referral order may be beneficial. That provided some flexibility in the system.

Courts determine the length of orders, which may be between three and 12 months, extendable for a further three, and under them children are referred to a youth offending panel of two volunteers representing the local community and an experienced youth offending team worker. The panel reviews offences and their consequences with the offender and his or her parents. Following that, the offender signs a contract, which can be varied according to circumstances but which has two core elements: first, reparation or restoration to the victim or the wider community; secondly, a programme of interventions that are designed to address the risk of reoffending.

The panel monitors the compliance of the offender and if at the end of the referral period the contract has been successfully completed, the conviction is declared spent. If, however, offenders are unwilling to agree a contract, or fail to comply with it, they are referred back to the court, which may revoke the order and impose an alternative sentence. Youth offending teams are required to provide regular reports on the operation of referral orders to judges, magistrates and their legal advisers. That process underlies some of the other things about which we have been talking because they provide flexibility and the ability to relate what is going on to the needs and problems of the particular offender.

Along with many others, I believe that the time is now right to build on this proven success and to extend referral orders to 18 to 20 year-olds or possibly even 18 to 25 year-olds in line with what my noble friend Lord Adebowale has just proposed. If this is accepted, a decision will have to be made as to who is to lead the panels. At present, the remit of youth offending teams covers children only up to the age of 18. Speaking to the chairman of the Youth Justice Board, I know that she would not be happy for the remit to be extended to the older group because the youth offending teams have to look after children down to the age of 10. Therefore, it seems absolutely natural that this responsibility should be passed to the probation service, which takes on the responsibility at the age of 18, and probation trusts, which is what I favour because they are the people who have the financial responsibility for this age group.

However, given the very high reoffending rates in this group, I believe that there are very strong grounds for requiring the probation service—I mean requiring it—to deliver more targeted interventions for young adult offenders and referral orders seem to be a very strong model to follow. Until now, the probation service has not had a strong portfolio of programmes suited to this group, which is one of the contributors to its very high reoffending rate. I beg to move.

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As I have already indicated, the Government have—as ever—considerable sympathy with the noble Lord’s motivations in tabling these amendments and seeking a more focused approach with this age group from probation trusts. However, resources are limited. Probation trusts use individual assessment to determine the needs of offenders rather than designating need because of their age group. This is evidence-based and, in our view, the best way to use limited resources. We believe that payment by results will be a sustainable way of bringing in new approaches that will help to deliver better outcomes for offenders, including young offenders. I therefore urge the noble Lord to withdraw this amendment.

[Lord Ramsbotham]

My Lords, I thank all those who have contributed. The noble Baroness has encouraged remembrance of a phrase that I have ringing in my brain, though I cannot remember from how long ago: “There is no such word as can’t”. I feel that that there is no such word in this connection. I hope in raising this amendment that I have accentuated the need to look at this age group. I deliberately said that I saw no reason why it could not be extended to 18 to 25 as opposed to 18 to 21 because there has been a debate about this for a long time. It is time that that was ended.

Young adults ought to be categorised, stopping at either 21 or 25, but not going on with the lack of clarity which means that no arrangements are made for the group that really needs help, either as adults or as young adults. That is why I go back to the fact that until and unless someone is made responsible for doing that, nothing will happen. I appeal to the Minister to think very closely about appointing somebody to do it. I hope that they will then lead a debate in which I know that all noble Lords who have spoken here and many others would be very willing to co-operate. This is too serious an issue to allow to go by default. I hope that we may have a discussion about this before Report. In the mean time, I beg leave to withdraw my amendment.

Amendment 177B withdrawn.

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[Lord Dholakia]

My Lords, I am delighted to lend my support to this amendment. I am in good and powerful company: the amendment is promoted by the noble and learned Lord, Lord Woolf, and the noble Lord, Lord Hurd of Westwell, and has the blessing of the right reverend Prelate the Bishop of Liverpool. Let me not exclude my noble friend Lord McNally; he and I have had numerous discussions on this matter and he has left me in no doubt that restorative justice is an essential element of the criminal justice system. The question is what procedure we adopt.

The case for restorative justice is on the Government’s agenda and its success cannot be disputed. We now need to provide the machinery which will enable retrospective justice to be set up on a clear statutory footing and give criminal justice agencies the impetus to refer cases. This is the clearest finding of the evaluation project undertaken by the University of Sheffield for the Government. We also know that victim participation rates were extremely high, with up to 77 per cent of victim participation cases involving adult offenders and up to 89 per cent of cases involving young offenders. The Government have often proclaimed that victims must be at the centre of the restorative justice process, and that is precisely what happens.

My noble friend Lord McNally has been very sympathetic in various meetings with groups operating in the criminal justice field. We now have a former Lord Chief Justice and a former Home Secretary, with their vast experience in such matters, getting together to amend the Bill by introducing a provision to enable criminal justice agencies to offer restorative justice to victims pre-sentence when the offender pleads guilty at the first appearance. The process allows victims to participate in face-to-face meetings with offenders, thus bringing closure to their fears and trauma. Victims show satisfaction but, most importantly, the frequency of reoffending is reduced.

Let me declare an interest: I said earlier that I chaired the Magistrates’ Association commission on the future of summary justice, and our report will be out soon. We took evidence from across many parts of the country, and participants included offenders and victims. In almost all cases, victim satisfaction was highlighted. The chairman of the Magistrates’ Association, John Fassenfelt, said that he has seen impressive evidence of victim satisfaction with restorative justice when it is organised to a high-quality standard and the insights it gives to offenders into the consequences of their offending. He said that if Parliament approves the amendment, the magistrates will be able to rely on probation to propose the most suitable cases, but the courts will only make the final decision to proceed if they are satisfied that it is in the interests of justice and in accordance with the wishes of the victim.

Research studies point to the international dimension, and cases in Australia and the United States, like those in Britain, delivered very high victim satisfaction accompanied by a reduction in reoffending.

Using the Ministry of Justice’s own data, there are potential cost savings, based on 70,000 cases, of £185 million over two years. In the present economic climate, this is something that we cannot ignore. It is value for money, as it saves £9 for every £1 spent. I fully support the amendment.

[Lord Ramsbotham]

My Lords, I support these amendments but have one cautionary tale for the Government. Before that, I echo the words of my noble and learned friend Lord Woolf towards the end of his speech, when he said that restorative justice is not for everyone. This I remember being made very clear to me some 15 years ago when I was introduced to restorative justice by Sir Charles Pollard, then the chief constable of Thames Valley Police, to whom all those interested in restorative justice owe a huge debt of gratitude for the determination with which he has followed it.

Not long ago, he asked me whether I would like to attend a restorative justice conference at HMP Pentonville, which was extremely ably chaired by a young policeman. The case involved three young women whose flat had been burgled by a young and chaotic man to fuel his heroin habit. During the early part of the conference it was discovered that this young man had been born of a teenage mother and had three young children himself by teenage mothers. He could not read and had an alcohol problem. The girls explained why they felt so strongly about their flat being burgled and everyone was in tears. The agreement was that the young man should be put through a drug treatment course, taught to read and put on an Alcoholics Anonymous course. As he left, and there was a spirit of hope in the room, one of the young women said to him, “Furthermore, will you write to us every month to tell us how you’re getting on?”, which I thought was an extremely good addition. They left in a spirit of hope and I then said to the governor of Pentonville, who was there, “How much of that can you deliver?”. He said, “None”. I said, “How dare you let those people go? Unless you can support what is being recommended, all the hope engendered by this process is dead”.

Therefore, if, as I hope, the Government accept these amendments, I hope they will add the rider that those who are responsible for staging the conferences and seeing that they happen must make certain that what is agreed actually happens, so that the whole process is not undermined.

[Lord Carlile of Berriew]

My Lords, bearing in mind the cautionary tale of the noble Lord, Lord Ramsbotham, I nevertheless, like him, strongly support these amendments. First, these amendments seem to suggest practical effectiveness. Most of the crimes that we are concerned with in this general purview are committed by immature young men. The evidence for restorative justice is that it gives them a sharp wake-up call and makes a dramatic contribution to their growing-up process, which is a very good reason to use restorative justice techniques.

Secondly, restorative justice of the type that has been discussed is cost-effective. From my experience of practice, I can imagine many marginal custody situations of a kind that come before magistrates’ courts and the Crown Court every day of the week—common burglary, criminal damage, lower-level assaults and other offences at a similar level—in which effective restorative justice conferences might mean the difference between custody and a community penalty, and result in a substantial saving of money to the state.

Thirdly, I strongly support the view of the noble and learned Lord, Lord Woolf, that this should be put into statutory form. I have a feeling that we might hear that it is not necessary to do so because it is, after all, open to judges and magistrates to adjourn cases for good reasons in any event. However, placing this in statutory form will have a number of effects. Although judges try very hard not to make law whenever possible, they try even harder to respond to the law that has been given to them. If they see this kind of provision in statutory form, it will have certain—and I mean certain—repercussions. One is that the training of magistrates, from which the noble Lord, Lord Ponsonby, gave us some graphic illustrations earlier, will undoubtedly place greater focus on restorative justice.

Those of us who from time to time attend what used to be called the Judicial Studies Board, which is now called the Judicial College, know that immediately the Judicial College, in its search for new and interesting courses, introduces new modules on restorative justice because it is included in statute, there will not be a judge in England and Wales—magistrate or judge at every level—who does not begin to focus on the potential of restorative justice conferences and opportunities. It seems to me that the key to this measure in many ways is putting it into statutory form, as that would highlight its potential throughout the judiciary. I hope that we will hear my noble friend the Minister responding in a way that not only is positive about restorative justice—we know that he will be positive—but that recognises the advantages of putting it into the statutory form suggested.