Crime and Courts Bill [HL]

Lord Ponsonby of Shulbrede Excerpts

Tuesday 30th October 2012 Lords Chamber

As to the second half of that contention, I would suggest that it must be unjust to impose something which a judge does not think is the appropriate form of punishment. Given that the way to treat an offender is the most difficult of judgments, we will get into situations where the judge conducting the task of disposal will not be given the liberty, having come to a conclusion on the appropriate manner of disposal, not to impose another form of disposal. That does not seem to me to be good sense.

[Lord Ponsonby of Shulbrede]

My Lords, it is clear from the Government’s response to the community sentencing consultation held last summer that there is substantial consensus among the consultees, and the Minister was right to point that out in his opening comments. The Government have accepted most of the advice given and the current proposals seem to be largely evidence-based and practical. However, there is one glaring exception, which has been raised by every noble Lord who has spoken so far in the debate, and that is the introduction of a mandatory punitive element into every community sentence. The Government’s original impact assessment of the proposals, which was published in March with the consultation, acknowledged that they would have an adverse impact on reoffending rates by causing primarily rehabilitative requirements to be replaced by primarily punitive requirements:

“Given a limit on the overall resources available for probation services, delivering a clear punitive element to every community order may cause the primarily rehabilitative requirements to be substituted for primarily punitive ones. Evidence is unclear on the effectiveness of different community order requirements in reducing re-offending i.e. some requirements may be more effective at reducing re-offending than others. There is a risk that some of the rehabilitative benefits of current Community Orders could be lost with adverse implications for the re-offending rate of those offenders subject to community orders”.

I have a clear question for the Minister, and in asking it I remind the noble Lord of the wise words of the great Jimmy Maxton, who said that you should not be in the circus unless you can ride two horses at the same time. My question is this: will it be open for sentencers to deem any element of a community order to be punitive? It is clear that a curfew, community payback or an exclusion order are, but can a court decide that, for example, an alcohol treatment programme taken alone as part of a community order has a sufficient punitive element to satisfy the requirements of this Bill? Here I should make it crystal clear that I am not talking about exceptional circumstances, but what the sentencing Bench deems to be punitive. It is important that sentencers retain their flexibility since every case is different. Can sentencers deem the rehabilitative requirements of community orders to be punitive as well, so as to satisfy the requirements of this legislation?

I want to give an example of how excessive restrictions on sentencers’ flexibility can lead to perverse consequences, which are clearly against the Government’s intention. My example is from the victim surcharge, a separate matter, but one which I think illustrates my point. On 1 October, the new extended victim surcharge provisions came into force, where offenders are charged money—cash—for the sentence they receive. Under the new arrangements, sentencers are obliged to charge a victim surcharge of £60 to those who receive a community order.

Last week, while sitting as a magistrate, I came across something that I am sure would not be the intention of the Government. I had a beggar in front of me who had a number of convictions for begging both this year and last, a Romanian lady in her mid-40s. The new element in her life was that she now had an address in north London. As a sentencing Bench, we wanted to give the beggar an exclusion order from central London—the City of Westminster. However, if we had gone ahead with that sentence we would have been obliged to charge the beggar £60, because the exclusion order is part of the community order. Clearly, this was not a practical way to proceed, so we dropped that idea on the advice of our clerk and sentenced in the usual way of one day deemed served, so the beggar effectively walked free. I am sure that that is not the intention. It would be much better if sentencing Benches had discretion in that matter. However, it illustrates the point that if sentencers do not have discretion, you can and do have perverse consequences.

My next point has, I believe, been made by the noble Baroness, Lady Hamwee. I was contacted by the Magistrates’ Association regarding the status of people who are working a number of hours in one week and the prospective conflict of their receiving jobseeker’s allowance. I got the same letter as the noble Baroness, Lady Hamwee, and will not repeat the point she has made, but am sure that that is a point that should be resolved between the Ministry of Justice and the Department for Work and Pensions.

The Government’s response document contains statements about restorative justice, victim personal statements, separate provisions for women offenders and a number of elements for people who breach their community orders, all of which, taken in isolation, are to be welcomed. However, one group of offenders was not concentrated on in the Government’s response, which I think is regrettable—younger adult offenders or 18 to 24 year-olds. The Minister will know that this is a particularly prolific and vulnerable group of offenders. There has been a number of initiatives over recent years and months, some of which have been very successful, as the Government acknowledge. However, there is no provision in this legislation to take any of those pilot studies forward. There have been initiatives in Manchester and Yorkshire, and it is disappointing that none of those has been taken forward. I would be interested to hear from the Minister how he proposes to address this group, which is often regarded as a forgotten group.

Crime and Courts Bill [HL]

Lord Ponsonby of Shulbrede Excerpts

Monday 25th June 2012 Lords Chamber

It will have an impact in those courts where care cases are heard where, according to Norgrove and supported by the Government, they should begin and finish in six months. It is important that the effect of these various proposals should be reviewed by the Government, particularly on the legal aid aspect, in the next year to 18 months. Thereafter, however, looking at Amendment 68C, I wonder whether an annual basis might not be excessive. It is excessive in the sense that it will cost money and I would prefer to have it less frequently—every two or three years—but it should be in depth and action then taken by the Government of the day to improve what that report has said. I would not think that an annual basis was an entirely sensible proposal, but in principle I support these amendments.

[Lord Ponsonby of Shulbrede]

My Lords, I rise to support this group of amendments. Essentially, they are about monitoring the outcome of what has been the largest overhaul of the courts system for a long time. Many courts have closed and some have opened. Last Thursday, I went to the opening of the new Westminster Magistrates’ Court by the Lord Chancellor. It is a magnificent building and I hope that it will be a centrepiece of London justice for the next 100 years. While this is set for London, over the whole country—including London—there have been many closures of smaller courts, which mean we are moving away from the principle of local justice which is administered locally. The reasons for these sweeping changes should be monitored and that is the main purpose of this group of amendments.

I will now move to the idea of a single family court with a single point of entry. I understand that this change is generally welcomed by all those involved in the family court system. I will repeat a point that has been made before, that lay magistrates are looking for reassurance that they will continue to play an important part in the family proceedings courts. When I have raised this issue before, that reassurance has always been forthcoming from Ministers. I repeat that request today, although it will be in the details of the proceedings of the courts themselves—which I understand will be a separate Bill at a later stage—where the lay magistrates’ concerns will be most likely to get their reassurance.

Amendment 68A states:

“There shall be no restriction on the number of days that a family magistrate may sit in the family proceedings court”.

That is to meet the recommendation of the Norgrove report, as my noble friend Lord Beecham said. As the noble and learned Baroness, Lady Butler-Sloss, said, the main purpose is to increase flexibility and case continuity for repeat hearings. It is my understanding that it is for the Lord Chief Justice and Lord Chancellor to determine both the maximum and minimum amount of sittings by magistrates, and it is not a matter for primary legislation. I would argue that it is important that lay magistrates maintain their activities outside court and are not professionalised through excessive sitting. It is right that the route to appointment as a lay family magistrate is through the adult criminal lay Bench, as it is today. That should continue. I acknowledge that it is a conundrum to meet the needs which the noble and learned Baroness, Lady Butler-Sloss said, while at the same time maintaining a lay Bench which is genuinely lay.

There is an answer. These matters could be determined locally by bench chairmen and I understand that experienced family magistrates can choose to give up their adult criminal work, with the approval of their bench chairman. There are ways round these problems which can be administered locally. The purpose of this group of amendments is to look at the many changes and be reassured that the Government want to review them, write reports about them and keep an open mind about what they are introducing. I wholly support this aim.

[Lord McNally]

My Lords, I am very grateful for the opportunity to discuss these proposals. I should put on the record that Manchester United is in the borough of Trafford. It is very dangerous for people such as the noble Lord, Lord Beecham, to wander west of the Pennines with football knowledge: they are just not up to it.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Ponsonby of Shulbrede Excerpts

Tuesday 20th March 2012 Lords Chamber

[Lord Ramsbotham]

I was very glad to put my name to this amendment. As always, it is a pleasure to follow the noble Baroness, Lady Linklater, and the noble Lord, Lord Judd. On this occasion, I do so because it provides an opportunity, which is not present in much of the rest of the Bill, to mention the problems faced by the probation service.

It was a great pity when the probation service was made subordinate to the Prison Service under the arrangements of the National Offender Management Service because for years they had worked closely together with the courts and the police in the local area. The amendment draws attention to that relationship. It also makes the point that magistrates must know what is capable of being done in prisons so that there is relevance between what is ordered to be done for the rehabilitation of someone and what is able to be delivered. That will be different all over the country, and rightly so because conditions will be different. Also, as I mentioned in Committee, if prisons and the probation service had to do the same thing everywhere, it would help sentencers enormously to know what was there and what was not there, and the Ministry of Justice would also know what there was and could make good any shortfalls.

The other day, I was very alarmed to hear that the governor of Lindholme, Moorland and Hatfield prisons in Yorkshire had ordered the probation service out of those prisons because the local probation service in that part of Yorkshire was having to work with G4S over the provision of probation services. Presumably, that must have been under the direction of the National Offender Management Service and under all the marketing strategies that it is following. I mention that because I am very disturbed about probation services being marketed when the service is concerned with the face-to-face probation officer and offender relationship, which is absolutely crucial to rehabilitation.

I do not know on what authority the governor ordered the probation service out, but it is alarming because, if he is able to do that, he is interrupting the whole rehabilitation process and drawing attention to the fragility of probation, which must work closely in the community, with police and probation being subordinate to prisons. Therefore, apart from supporting this amendment, which I think improves the Bill and draws attention to the rehabilitative element of all that is going on, I am also glad that it allows us to draw attention to the problems faced by the probation service without which we are not going to be able to reduce the vast numbers in prison who are choking that system.

[Lord Ponsonby of Shulbrede]

I support the amendment in the name of the noble Baroness, Lady Linklater. I agree with everything she said. I remind the House that I currently serve on one of these committees in central London. It is not a statutory committee, but it is a very important committee from which I certainly benefit in my work as a magistrate, as I know all my colleagues do. Nevertheless, I want to make the point that there are other statutory committees. I am thinking of the bench training and development committees which are required to sit under statute. With the best will in the world, the officials administer those committees more thoroughly than they do the probation liaison committees, precisely because they are not statutory committees. For that reason alone, I recommend to the noble Baroness, Lady Northover, that the statutory provision would add weight to what is, after all, one of the Government’s primary objectives, which is to make sure that the magistracy has confidence in community sentences.

[Baroness Howe of Idlicote]

My Lords, I support the amendment. The noble Baroness, Lady Linklater, knows so much about the probation service and the magistracy. She draws attention to very little of which we should not take a great deal of notice. What my noble friend Lord Ramsbotham has just said about what is happening in the probation service is alarming. I hope that someone will be able to explain what has happened in a way that makes sense. I go back a long way within the areas of the magistracy and probation and the tremendous work that they do with offenders over very many years. I was a juvenile court chairman. I was horrified when I read the report by the noble Lord, Lord Carter of Coles. At that moment, I said to myself that if I were a probation officer, I would leave the service because I knew it had no future. It is, therefore, even more worrying to me that the whole of the very effective work that it still carries out is under this kind of threat. I hope that the Minister will be able to reassure us that this is not the way forward.

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[Baroness Linklater of Butterstone]

My Lords, I rise very briefly to endorse every word that the noble Lord, Lord Ramsbotham, has said. How much it resonated with me. The older end of YOIs are famously inadequate and have been so for some time, no doubt partly because they are also a famously difficult group. The noble Lord, Lord Ramsbotham, highlighted the fact that these are very often young people in transition. Transitions are difficult and absolutely awful to go through. I have always said that I am never off my knees in gratitude that I will never have to be a teenager again. There is merit in the idea that they could be, as it were, somehow incorporated—that, if the arms of the YJB became wide enough, they could encompass them in some way. I am not entirely sure how much the YJB is in favour of such a proposition, but maybe there are ways of choreographing that. However, I have simply risen to say that the noble Lord, Lord Ramsbotham, has put his finger on a very real and challenging problem.

The other day, I was visiting Merseyside Probation Trust, which is doing an incredible range of first-class work. Its IACs—intensive alternatives to custody—are particularly impressive. I spent some time with one girl who had been through it. She had form like you had never seen and she came singing the praises of the person from the probation service who had been working with her through this process. It was truly worth while in that case. Maybe it is very expensive—it is certainly very time intensive—but it is something that I, along with what the noble Lord, Lord Ramsbotham, want to endorse.

[Lord Ponsonby of Shulbrede]

My Lords, as I sit as a magistrate in both the youth and adult courts, I make one simple point. In the youth courts, we routinely say to youths, “You must behave. If you do not behave, you may come back to the adult court and of course that is a much more serious matter.” What we do not tell them is that the reason that it is a much more serious matter is because there is much less support for them in the adult court system. Everything that the noble Lord, Lord Ramsbotham, said is absolutely right. We see a huge, disproportionate, number of young men from 18 to 24 years old. There are attendance centres, which do good work. I have been to a number. However, it is very minimal compared with the support that this group needs.

[Lord Beecham]

My Lords, the noble Lord, Lord Ramsbotham, has identified very clearly the nature of the problem and has come forward with proposals to help deal with it. He made a number of points that are very telling. Perhaps a couple of other matters could be added to the issues he referred to. The first is perhaps implicit in what he was saying: the very high reoffending rates among this particular group. The second, and slightly different, point is that there is a disproportionate number of young offenders from black and minority ethnic backgrounds, which is an aspect that we have not much discussed in the course of the Bill. It is not a function of any greater criminality among that group. All the evidences suggest that, for whatever reason, the likelihood of a custodial sentence—or, for that matter, a refusal of bail at an earlier stage—is much greater for people from that group, compared to offenders with comparable offences. There seems to be an in-built bias against BME offenders, which is a matter that needs to be addressed. The other issue is what happens after certain custodial sentences are completed because, after short sentences there is, effectively, no follow-up. That is a significant contributor to the high reoffending rates.

I hope that this proposal—that there should be a requirement to produce a strategy for offenders in this group—commends itself to the Minister. The phrasing of the amendment is perhaps a little difficult in terms of what might be appropriate for statute. However, the principles that the noble Lord has advanced are surely ones that would commend themselves to the Minister. Again, I hope that he can either indicate policy acceptance of the thrust of the amendment or agree that he will consult further with the noble Lord, maybe with a view to bringing back at Third Reading something to meet the common objectives of the Government and Members of your Lordships’ House. Certainly, I would support the noble Lord’s aspirations in this respect.

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Moved by

[Lord Ponsonby of Shulbrede]

152DA: Schedule 11, page 205, leave out lines 1 to 5

[Lord Ponsonby of Shulbrede]

My Lords, this group of amendments would remove the Government’s proposed amendments to the Bail Act 1976. The Government’s amendments remove certain exceptions to the presumption that bail should be granted to a defendant. Currently, bail can be withheld if judges or magistrates believe that the defendant will commit offences on bail, not turn up for subsequent court hearings, or interfere with witnesses. The Government seek to replace that with a no real prospect of custody test to make it far more likely that low-level offenders will get bail. Of course, currently the vast majority of low-level offenders already get bail.

The Government’s proposed changes are poorly thought through and could, in some cases, have the reverse effect to the one they intend. I understand that they are motivated by looking at the statistics of those who have received community sentences after they had been remanded in custody and then convicted at trial. They believe, in my view wrongly, that they will reduce costs by reducing the number of people who were originally remanded in custody.

I have come up with three practical examples which I believe will undermine the object of the Government’s proposed changes and the premise on which they are based. My first example is that of a sentencing bench. A sentencing bench sits and decides to give a community sentence where a defendant has previously been remanded in custody before trial. The sentencing court will know that, if it gives a prison sentence for a low-level but imprisonable offence, it is very likely that the defendant will walk free on the day of the trial or very shortly afterwards.

However, if the sentencing bench gives a community sentence, there is an opportunity for ongoing intervention by the probation service either through a tailored programme for drug rehabilitation, unpaid work or any of a number of courses that they can make. Of course, it is true that a court will be much better informed when it is giving a sentence than when it is making a decision about bail. I believe that it is misleading—and the Government are misleading themselves when they do so—to look at the bald figures of those who have been remanded in custody and those given community sentences.

My second example is of interfering with witnesses. I acknowledge that in another place an exception has been made in the context of domestic violence. I also accept the point made by the noble Lord in Committee when he said that interfering with witnesses is an offence. However, what about this following scenario: a neighbourhood dispute in which a bailed defendant is accused of interfering with witnesses and pleads not guilty? Of course, there will need to be a trial on the matter, but in the mean time the question of bail arises again. Surely the Government cannot be saying that the court cannot take into account a previous conviction of interfering with witnesses. That absolutely undermines everything that they are saying about putting victims at the heart of the criminal justice system. I find it impossible to imagine that they really intend that very real scenario.

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[Lord McNally]

I wonder whether one reason why the Magistrates’ Association found itself alone on this is that most other penal reform organisations welcomed a proposal that will prevent people being sent to jail. One of the big arguments that we have had about the inexorable rise in our prison population over recent decades is over whether as a society we are too quick to send people to jail. The no real prospect of custody test simply asks, “If you are not going to imprison a defendant if he is convicted, why should you be able to do so before he has been tried?”.

The noble Lord, Lord Ponsonby, tabled amendments that would remove the no real prospect of custody test from some, although not all, of the places in Schedule 11 where it appears. Amendment 152JA would remove the amendment to Section 7 of the Bail Act, which applies to the test to bailed defendants who have been arrested for absconding or breaking their bail conditions. Amendment 152JD would remove the amendment that applies the test to defendants who have committed offences that merit summary imprisonment. However, for some reason the paragraph in Schedule 11 that introduces the no real prospect test for indictable offences is left undisturbed. Amendment 152DA removes the definition of custodial sentences that is relevant to the no real prospect test, but Amendment 152JB appears to remove a consequential amendment that is not directly related to the test.

The noble Lord spoke of the risks to the safety of the public, but how much of a risk is a defendant for whom it can be said that there is no real prospect of custody? We also heard about intimidation. However, as we mentioned, intimidating witnesses is an offence in its own right that is not only imprisonable but likely to result in a custodial sentence. A defendant who is not facing custody for their original offence would be foolish to put themselves at risk of receiving a far more serious sentence by trying to interfere with a witness.

We recognise that special considerations may apply where the circumstances of the offence suggest that there may be a risk of domestic violence. That is why we have included an exception designed to protect those who might be vulnerable in this way. This exception in new paragraph 15 of Schedule 11 would in fact be removed by Amendment 152JC. I do not understand why.

The noble Lord asked me a number of specific questions about the August riots, curfews and the need for sufficient information to be given. It would be fun for me to try to reel off answers from the Dispatch Box, but it would be better, and certainly safer for me, if I wrote to the noble Lord and made that reply available in the Library of the House. He can then contemplate what he will do at Third Reading.

I am not sure that the Magistrates’ Association is on the right path here. We think this is a sensible proposal for keeping people out of prison when it is not strictly necessary for them to be there. I will try to give the noble Lord answers to his questions, but in the mean time I ask him to withdraw his amendments.

[Lord Ponsonby of Shulbrede]

I thank the Minister for that response. I make the point that the Magistrates’ Association and every magistrate I have ever sat with do not want to put people in custody, and the whole purpose of my speech was to point out inconsistencies and a lack of clarity in these proposed changes. Nevertheless, I thank the Minister for offering to respond to my specific questions, and I beg leave to withdraw my amendment.

Amendment 152DA withdrawn.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Ponsonby of Shulbrede Excerpts

Wednesday 1st February 2012 Lords Chamber

Moved by

[Lord Ponsonby of Shulbrede]

172A: Clause 61, page 43, line 32, at end insert—
“(1A) The court may order that the prosecution should inform the victim of the court’s decision and the consequences thereof.”

[Lord Ponsonby of Shulbrede]

My Lords, the amendment would give all victims the right to be told about sentences passed in the courts. Yesterday, the Government launched a consultation document called Getting it Right for Victims and Witnesses. In the opening sentence, the Lord Chancellor states:

“Proper protection and support for victims of crime is fundamental to my vision of a reformed criminal justice system”.

In paragraphs 72 and 73, he makes it clear that it is his intention to opt in to a new EU directive on rights and support for victims of crime. He states also that he believes that victims are entitled to be treated with dignity and respect, and, crucially, that victims should receive information. That is the crux of the amendment. I have no doubt about the Government’s good intentions in this matter.

At present, once a case has been concluded, either in the courts or in an out-of-court settlement, there is no guarantee—and certainly no formal mechanism—to ensure that that the victim of a crime, if they so wish, is informed of the outcome of the case. In the Crown Court, there is a duty on the probation service to contact victims and their families after someone has been imprisoned for 12 months or more for a sexual or violent crime, but there is no obligation for less serious offences. I felt that it would make sense to put this new duty on the prosecuting agency on behalf of the victim rather than on the Courts Service itself. I did that because the prosecuting agency will already have the contact details on its files, and of course it already informs victims of the progress of their cases as they come to court.

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I cannot accept any of these amendments. However, I can say that the debate was useful. As I said, I can make no promises, but I will look at the points raised in this debate to see whether there are any parts of the concerns on which we can give satisfaction, either by the statements I make from this Box, in guidance and training to the various authorities within the criminal justice system or even by amendment. On those terms, I hope the noble Lord will agree to withdraw his amendment.

[Lord Ponsonby of Shulbrede]

My Lords, I thank noble Lords who supported my amendment, including my noble friend Lady Quin, my noble and learned friend Lord Goldsmith and the noble Lord, Lord Dholakia.

Regarding what my noble and learned friend Lord Goldsmith said, my understanding is that there are currently ad hoc arrangements post conviction about whether victims should be supported, and there are various organisations that do that. There is also the witness service and the code of practice for victims of crime. However, they are ad hoc and not a comprehensive system.

As usual, the noble Lord, Lord McNally, was more accommodating when he was extemporising than when he was reading from his notes. What he read out regarding my amendment was that I was seeking to avoid the obligation on the courts to explain sentences. That is not remotely the case, as I am sure he realises. Nevertheless, I take his extempore comments as a positive sign that he is willing to look at all these amendments to see what can be done. In that spirit, I beg leave to withdraw the amendment.

Amendment 172A withdrawn.