Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Northover Excerpts

Tuesday 7th February 2012 Lords Chamber

[Lord Bach]

My Lords, in many of his amendments I agree with the noble Lord, Lord Ramsbotham, and I hope to do so later this evening, but on my understanding of his argument here I find it difficult to accept the amendment on behalf of the Opposition.

I shall make a general point. This is not a government amendment—but when there are government amendments dealing with a different Act, as in the case of this Bill, where we are amending the Criminal Justice Act 2003, Keeling schedules, which set out what the amended 2003 Act would look like if we passed this legislation, are incredibly helpful. Indeed, when we were in government, the opposition on all sides used to ask us where the Keeling schedules were—and they were often there. In this Bill, later on tonight or whenever we reach the 17th group, there are very helpful Keeling schedules in important government amendments. But they do not exist elsewhere, as far as I can see, although the Minister has been helpful in writing to noble Lords about government amendments. There is a value in having Keeling schedules in that the House can understand what is being amended.

The Criminal Justice Act 2003 states:

“If it is proved to the satisfaction of a magistrates' court before which an offender appears or is brought under paragraph 7 that he has failed without reasonable excuse to comply with any of the requirements of the community order, the court must deal with him in respect of the failure in any one of the following ways”.

The Bill changes that “must” to “may”. The following ways include,

“amending the terms of the community order so as to impose more onerous requirements”,

and,

“where the community order was made by a magistrates' court, by dealing with him, for the offence in respect of which the order was made, in any way in which the court could deal with him if he had just been convicted by it of the offence”.

I know that the noble Lord has no objection to those provisions, as amended by this Bill. It is sub-paragraph (1)(c) that his complaint is with. That sub-paragraph is not just about a breach. It refers to,

“where—

(i) the community order was made by a magistrates’ court,

(ii) the offence in respect of which the order was made was not an offence punishable by imprisonment”—

that is the noble Lord’s point. It goes on to refer to,

“(iii) the offender is aged 18 or over, and

(iv) the offender”—

and these are the crucial words—

“has wilfully and persistently failed to comply with the requirements of the order … by dealing with him, in respect of that offence, by imposing a sentence of imprisonment for a term not exceeding”,

six months.

Provided that the Bill reads “may” rather than “must”, I can see nothing wrong with that. The danger is that someone who is given a community service order for an offence for which there is no imprisonment can get away for ever in breaching community service orders to the extent that he wilfully and persistently fails to comply, and the court will never have the power to deprive that person of their liberty. I agree with the Minister’s point from earlier that if community orders are to succeed—we want them to succeed because they are vital—they must be, in the words of the noble Baroness, Lady Linklater, “robust” community orders. There must be something there, eventually, if someone wilfully and persistently fails to comply with them. It is not just a breach in sub-paragraph (1)(c), but a wilful and persistent failure to comply, which is a step beyond a breach. Clearly, it is more than one breach; one breach would not be enough. Two might be—three might well be. In those circumstances, my case—I may be wrong about this—is that if we agree to these amendments, the result would be that someone who was given a community order for an offence that was not in itself subject to imprisonment could never be sent to prison, however wilfully and persistently he failed to comply with it. On this issue, which I concede is not a major one, I do not agree with the noble Lord, Lord Ramsbotham.

[Baroness Northover]

My Lords, I thank the noble Lord, Lord Bach, for his support on this, the first group of amendments that I am dealing with on this Bill. That is extremely welcome. Maybe the issue to which he refers rather reflects upon the quantity of legislation that this House has dealt with over a number of years. I absolutely take his point about the need for clarity and for linking Bills one to another.

I will seek to clarify what we understand these two amendments would do and why we resist them. They would repeal some of the provisions giving powers to both magistrates’ courts and the Crown Court to deal with breach of a community order. The provisions that the amendments propose to repeal give the courts the power to imprison offenders for serious breach of community orders which have been imposed for offences which do not carry imprisonment. Noble Lords agree on that.

As it so happens, community orders cannot currently be imposed for offences which do not carry imprisonment, so these provisions may appear to be redundant and I can appreciate why the noble Lord, Lord Ramsbotham, might have tabled these amendments. However, they were certainly needed in the past and it was only in 2008 that the community order stopped being available for non-imprisonable offences. Before then, a community sentence could be imposed for a non-imprisonable offence. When that happened, these provisions were the only way that a breach could be dealt with—by sending the offender to prison—so however serious the breach, there would have been no custodial disposal without these measures. As I have noted, since 2008 there has on the face of it been no further need for them to remain on the statute book because they are, in practice, no longer necessary.

However, it is not quite as straightforward as that, complex though that may seem. There is an unimplemented provision in Section 151 of the Criminal Justice Act 2003 which, if it were commenced, would allow the courts to impose a community order on a persistent offender, in the way that the noble Lord, Lord Bach, has spelt out, who has at least three previous fines, even if the offence they committed was not serious enough to cross the community sentence threshold. If that provision in Section 151 were to be implemented, it would become possible once more for a community order to be imposed for an offence which did not carry imprisonment.

It follows that we would therefore need the provisions which the noble Lord’s amendments would repeal to ensure that a persistent offender who gets a community order because they have received at least three fines could be penalised by imprisonment in case of breach. Effectively, these two measures go together. While we retain the sentencing power, even if it is not in force, we also need the breach power. I should perhaps say that we have no intention at present to implement the sentencing power but, as I have explained, while this is still an option, we need the breach power against the possibility that it might happen in the future.

[Lord Bach]

I follow the noble Baroness’s argument, which she has made very clearly. Indeed, I was not aware that the law was changed in 2008 so that non-imprisonable offences could not receive a community order, but I see the noble Baroness's way around that. However, to describe it as a breach power seems to be wrong on the basis of how the 2003 Act is phrased. It refers to a person who,

“wilfully and persistently failed to comply”.

In one sense, that is about a breach but not a breach on one occasion. It is the court having to find that there has been a wilful and persistent failure to comply and I hate to see that lessened to a mere breach, if I may call it that.

[Baroness Northover]

I heard what the noble Lord said and was very interested in the points that he made. Perhaps it is best if I come back to him to clarify that point. In the mean time, I hope that after this incredibly clear explanation—

[Lord Carlile of Berriew]

My noble friend will recall that it was part of the vaunt of the coalition that the statute book would be tidied up so that there were far fewer redundant statutes. There are in fact hundreds and hundreds, possibly thousands, of redundant statutory provisions—I have a book of them upstairs by my desk. Given that this has not been brought into force now for nine years, in the spirit of clear statute-making would it not be better simply to repeal the original provision and, if the Government wished to have something like it in the future, to introduce that in a proper way in a Bill?

[Baroness Northover]

My Lords, that is exactly what I asked and I was assured that in fact the Government wanted to keep the possibility of this being implemented. We therefore need to make sure that it is, as it were, complete.

[Lord Carlile of Berriew]

My noble friend clearly did not understand what I was suggesting: that it is, to put it plainly, senseless to have something on the statute book nine years after it was enacted, with absolutely no intention of bringing it into force.

[Lord Carlile of Berriew]

No, this provision is from 2003 and it has not been brought into force for nine years. Is the right answer to this not to repeal the 2003 provision in question? If the Government then have some constructive suggestions for imposing imprisonment, if it be merited, on people who have been given a community sentence, why do we not start again with those provisions? In reality, my noble friend is not going to suggest for one moment that the Government will bring this redundant provision into force.

[Baroness Northover]

I assure my noble friend that in fact I understood him very clearly the first time. I asked, as this was introduced in 2003, changed in 2008 but not complete, why we would not seek to repeal it. However, I was told that the Government wish to retain this, in the possibility that it might be implemented—although with no intention of doing that at the moment. I fully support what he says about trying to rationalise legislation in all areas, and I worked very hard on the companies legislation, the first elements of which were finally rationalised relatively recently, after 100 years. I realise that these things can take a long time, but I take very much the point that legislation needs clarity. However, I hope that in this instance the noble Lord, Lord Ramsbotham, will understand what I am arguing here and be willing to withdraw his amendment.

[Lord Avebury]

May I ask my noble friend what may be a naive question? If the provision to which this is attached has not been brought into force but the Government require it to remain on the statute book in case it is necessary at some future date, why is the provision that we are discussing not also subject to a statutory instrument to bring it into force at the same time?

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[Baroness Northover]

In answer to my noble friend, I expect that it will be necessary that this is in legislation, whereas the implementing would not require further legislation. This is therefore a time to tidy up something which was left untidy.

[Lord Ramsbotham]

My Lords, I am grateful to the Minister for that response and intrigued with the points made by the noble Lord, Lord Bach. I am grateful to him for those and for the intervention of the noble Lord, Lord Carlile. As I rather suspected, this simple amendment has disclosed that there is a need to examine the clarity of the legislation regarding breach, while absolutely accepting the problems faced by magistrates. I very deliberately did not include “wilfully and persistently” regarding a breach, because that was not what I was after. Wilful and persistent was covered deliberately by the noble Baroness, Lady Linklater, in her contribution.

There is merit in doing this, though; as I said, we are talking about the sentences but we must also consider what is going to happen to the person who has committed the breach and what the impact will be on the prison service. In our overcrowded prisons, there are currently vast numbers of people serving sentences for a breach since the 2003 Act. It was a small number before but it has become large, and there is nothing meaningful that can be done with them. That really is a waste of time and money, accepting that the magistrates have to do something. This should be thought through, which I hope is what the Minister will take away from this short debate. I beg leave to withdraw the amendment.

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[Baroness Northover]

My Lords, Clauses 67 and 75 would enable a court to impose longer curfew requirements as part of a community order, a suspended sentence order or a youth rehabilitation order. The clauses would allow the court to impose a curfew of up to 16 hours a day for a duration of up to 12 months. Enabling the courts to impose longer curfews in this way will make the community order capable of being more punitive and attractive as a suitable disposal for more serious offenders, possibly some who might otherwise have gone to prison. It will also increase the confidence of the public, who too often see community sentences as insufficiently demanding. No doubt these issues will be much debated in this House, but I am very glad that noble Lords support the principle of doing what we can to keep people out of prison. We all know the drivers of that.

We believe that increasing the maximum number of hours of curfew per day will give the courts more scope to use community orders imaginatively to punish offenders, protect the public and encourage compliance.

[Lord Beecham]

Wherein lies the imaginative use of these orders? Where is the imagination?

[Baroness Northover]

Perhaps we should leave that to those who are curfewed. For example, a curfew period of 16 hours will enable courts to curfew offenders for 12 hours overnight, as often happens now, but also to add a further period. This is designed to ensure that the offender is at home immediately before a community pay-back session to increase the likelihood of their turning up on time. More seriously, that illustrates the point that I just made about how this could be teamed with something else that the court wishes to achieve. If the curfew is timed so that the person will be at home before the community pay-back session, that is an imaginative way of using it. A young person attending school will need less restriction during the school week but could have their movements more tightly restricted at weekends, when they are at greatest risk of reoffending. That is another point.

I am aware that the Prison Reform Trust does not share this view and believes that the courts already have sufficient flexibility to impose curfews. I know that this belief has been endorsed by the Bar Council. Both have commented on their particular concerns about the impact of these changes on children. While I understand these concerns, it should be remembered that the new curfew limits are maxima. They will be imposed only where such a requirement is, as the law requires, the most suitable for the offender and where the sentence is proportionate to the seriousness of the offence. In respect of under-18s, we expect the longer curfews to be used sparingly and that courts will take their age into account. It will be the court that decides whether and how to use this option.

My noble friend Lady Linklater makes the case for when lengthy curfews would be disproportionate. Doubtless the court would see that in the relevant cases. The kind of aspects that my noble friend mentioned would be raised in court and taken into consideration.

Compliance with curfew is normally monitored electronically through the offender wearing a tag. This will not change. Indeed, we are exploring ways of making more use of electronic monitoring as the technology becomes more sophisticated and robust. None of the existing safeguards will change. Courts will still be required by law to ensure that the restrictions on liberty imposed by any community order are commensurate with the seriousness of the offence, so longer curfews may be more suitable for more serious offenders. It will remain the case that before imposing a curfew requirement, the court will have to consider what the effect of the curfew might be on the person themselves and their individual needs and circumstances and on other people living at the curfew address. With longer curfews being available, it will be even more important that the courts take account of the needs and views of the family members before setting the curfew hours. Youth offending teams will assess the suitability of the home address for curfew purposes. They will make a recommendation to the court on what length of curfew is appropriate. We would expect that any longer length and duration of curfew would be focused on older children where the alternative might be custody.

The point was made that longer curfews would interfere with work and children’s education. The law requires that all community order requirements, including curfews, should, as far as possible, avoid interfering with an offender’s work and education. I hope that that will reassure people. We believe that giving courts the power to impose longer curfews will contribute to realising the aim of making non-custodial sentences tougher and more demanding. In doing so, we hope that they will command greater confidence among sentencers and the public.

[Baroness Linklater of Butterstone]

I thank everybody who has participated in the debate. Consensus on this issue has broken out loudly and strongly with one unfortunate exception. I understand entirely where my noble friend is coming from and I do not envy her taking that position. Graphic arguments have been put forward regarding the reality of the lives of the people we are discussing. I respectfully suggest that the people who have framed these conditions have not been able to imagine what it is like to be in a house you cannot bear to be in for 12 hours a day for up to a year. Some sort of assessment by the Government in advance of imposing such restrictions on people who are already in trouble might be a good idea. Perhaps some sort of evaluation is in place that could be looked at. I do not know whether that is the case. Of course, it is a good idea to find alternatives to custody and for more serious offending but not, I suggest, if it hastens the route to custody. I cannot imagine how this measure will not lead to more reoffending. If there are more serious offenders around, it will simply result in more serious offending because these sanctions will be almost impossibly difficult to adhere to.

Once again, I thank everybody who has participated in the debate. I say to my noble friend that I hope that the arguments that have been made this evening will be taken away and considered very carefully before we come back to the matter on Report.

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Moved by

[Baroness Northover]

177ZB: Clause 68, page 51, line 3, after “country” insert “or territory”

[Baroness Northover]

My Lords, the amendments in this group are minor, technical amendments to ensure that the extent of court-imposed foreign travel prohibitions includes territories as well as countries. I beg to move.

[Lord Bach]

Whenever I was sitting where the noble Baroness is sitting now and I began my speech on government amendments by saying that they were minor and technical, those sitting opposite me used to look doubly hard at those amendments to see whether they really were minor and technical. I am not saying that I have looked doubly hard at these amendments but they are clearly minor and technical and we have no objection to them.

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Moved by

[Baroness Northover]

177ZC: Clause 68, page 51, line 5, after first “country” insert “or territory”

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[Lord Bach]

My Lords, the problems of drugs in this country are always in the news. The arguments about whether they should be legal, illegal or somewhere in between are a constant source of debate among talking heads—quite rightly too, as it is a very serious problem and issue. By comparison, the issues of alcoholism and too much consumption of alcohol have always taken, certainly in recent times, very much a second place in discussion. Of course, if we read our local newspapers, we will see one such case after another—often they are minor, but sometimes they are very serious, which I shall talk about in a moment. We hear of X being found drunk and disorderly at the very bottom end of it, or of criminal damage or damage to a person. Every week countless cases are there to be recorded by any enterprising journalist who goes along to the local magistrates’ court. It is a wonder that, over many years, we have allowed this imbalance to grow—as the noble Lord, Lord Carlile, emphasised—in our discussion of drugs and alcohol. Alcohol when misused is a drug. There is no question or doubt about that.

We have heard some extraordinarily impressive speeches in a very impressive debate. From the opposition Front Bench we welcome the amendment and will support it all the way. I can be brief, as I know that people are waiting for other business to begin, but the facts are truly terrifying. There are 1.2 million alcohol-related violent incidents a year, including about half of all violent crimes. There are 360,000 incidents of domestic violence, a third of which are linked to alcohol misuse. There are all those arrests for drunkenness and disorder. The noble Lord, Lord Carlile, talked about medium and serious crime. There are 530 drink-driving deaths—what a waste that is. There is also the appalling statistic that 58 per cent of rapists reported drinking, no doubt to excess, beforehand. They are horrifying figures for a civilised society and more needs to be done.

We are living in a time of austerity—it does not matter whose fault it is for these purposes—when more people are unemployed and people are probably poorer than they were. The figures for relationship breakdown are not exactly encouraging. Those are all factors that have been associated in the past with heavy drinking. We cannot be careless about the issue now. The cost each year is absolutely huge—£8 billion to £13 billion a year, as estimated by the Home Office in 2010. We have heard about the National Health Service and the ridiculous amount of money that it has to spend on people who constantly get drunk and then get hurt.

Of course I claim that the previous Government did useful and good things in this field, and no doubt the Government before that one did too, but that is no argument in itself. We have to do more and we have to take slight risks. We have to do more than we would otherwise think of doing. It is not a matter for some bureaucracy to decide that we can move forward on this step but not that one. This suggestion has been well discussed by the noble Baroness, Lady Finlay, and her supporters, and I pay special tribute to the noble Baroness, Lady Newlove, who speaks with such effect on all these matters. The argument has been so one-sided that is very hard to see any argument at all against the Government supporting, at least in principle, what has been suggested. I hope that they will support the amendment. We certainly support it—it would be a crying shame not to. It is, after all, a pilot that is being proposed. It is not a dramatic implementation across the country all in one go. A pilot has been proposed and I cannot think of one argument against adopting it.

[Baroness Northover]

My Lords, in responding to these amendments I am aware that these proposals were discussed previously in the Police Reform and Social Responsibility Act last year. I am very glad to say that we very much support the principle of the intention of the noble Baroness and other noble Lords who have contributed to this debate. It is very clear that alcohol-related offending causes a great deal of harm and there is an undeniable logic in tackling alcohol-related offending by preventing an offender from participating in the activity that has given rise to or exacerbated their criminal conduct.

The noble Baroness makes a very cogent case, and we all know how very damaging the abuse of alcohol can be. I can therefore confirm to the Committee that the Government will shortly be establishing two pilot schemes to test the principles and effect of enforced sobriety schemes as part of our effort to tackle and reduce alcohol-related crime, drawing on the success of similar schemes that have been trialled in the United States.

At the time of the policing Bill, the Government committed to testing sobriety schemes as part of conditional cautions within existing legislation. Since then, the Ministry of Justice and the Home Office have developed further proposals to pilot sobriety as part of community orders within the existing law. There will be two pilots using tags and breathalysers because it is extremely important to assess the practical advantages and disadvantages of schemes such as this. The conditional caution pilot will focus upon offenders who commit high-volume alcohol-related offences, such as drunk and disorderly, common assault and criminal damage. Offenders will face the tough choice of accepting sobriety conditions or facing prosecution and the prospect of receiving a drinking banning order on conviction. Anyone failing to comply with these conditions would be prosecuted for the original offence.

The second pilot will test sobriety as part of community orders, which will target a range of more serious offences where alcohol is a contributing factor. We will be looking at making use of the latest technology through which to monitor an offender’s compliance with the terms of the sobriety requirements. Breach procedures will exist as they currently do. We will set out further details of these pilots in the Government’s forthcoming alcohol strategy.

We want to hear the views of the judiciary, professionals within the criminal justice system and the public on the proposals. We will therefore be consulting in parallel with the pilot schemes to ensure that we give full consideration to the purpose, effect and benefit of sobriety schemes as we develop work further. The noble Baroness, Lady Finlay, as a medical scientist, knows how important it is to evaluate evidence. In her introductory remarks, she flagged up some of the complexities in this area. It is extremely important that we learn from these pilots in order that we can take forward what works best.

Alongside this we are taking a range of other measures to tackle alcohol-related offending. Pricing is one crucial lever for tackling alcohol misuse and its associated crime and health harms. I have just mentioned that the Government’s alcohol strategy will be set out shortly. We are also rebalancing the Licensing Act in favour of communities by giving greater powers to police and licensing officers to tackle irresponsible businesses. We are also strengthening violence reduction programmes to incorporate a greater emphasis on tackling the impact of alcohol and drugs and gathering evidence from drinking banning orders that are being piloted in 50 areas across England and Wales.

The noble Baroness has done a great deal to bring this issue to the Government’s attention, and I congratulate her for it, but as I have said, it is extremely important that we are certain of the effectiveness of this policy before it is put in statute, which is why I am very glad that we can take forward the pilots under current legislation so that the practical aspects can be properly assessed. There are some concerns not about the principles of the amendment but about the design of some of the elements. We feel that some safeguards are not quite as they should be.

The noble Baroness mentioned questions over the tagging equipment. It will be assessed, but I flag up that in 45 states in the United States it has been used for more than 5,000 offenders and has the confidence of the US judiciary and so on. There are a number of things that I can write to the noble Baroness about in regard to that, but as the noble Lord, Lord Harris, said, there are different views on some of the equipment which are slightly at variance with what the noble Baroness said. That shows how important it is to pilot and to see how these various approaches work.

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[Baroness Finlay of Llandaff]

I will be grateful if the Minister will tell the Committee under exactly which parts of current legislation these pilots can be conducted. The legal advice that I have had is that it is only low-level offences. I have also been advised that breathalysers cannot be used under current legislation, so it would be helpful if she could specify which legislation they would be used under. Will she tell the Committee whether devices that detect alcohol in sweat are Home Office-approved and, if they are not, when she anticipates that approval will come through so that the pilots can start? Where will these pilots be conducted? When will they start? For how long will they be conducted? Who is funding them? Without that information, it is very difficult to accept at face value what sounds like a great idea, but we have heard it before, last summer, and I am afraid that no action has been seen since then.

I agree that alcohol does not cause domestic violence but I would be grateful if the Minister could tell us why alcohol-fuelled domestic violence is fundamentally different from other forms of domestic violence. Perhaps it is because it is witnessed by children in the family, who will bear those scars for their whole lives; at least if there is a drunken brawl out in the streets at midnight, it is not witnessed by children where their parent is being seriously injured. Therefore, I also ask for an explanation of why the Government have decided to downgrade the importance of domestic violence, which has extremely long-term effects.

[Baroness Northover]

I have to dispute what the noble Baroness says about downgrading the importance of domestic violence—we have not. It is because we recognise that it is a very complex and dangerous form of violence that we are separating it out from the assessment of the practicalities of this scheme in these pilots. It is something that has to be addressed across the board and in a much more complex way than whether or not you breathalyse or tag somebody and decide whether or not they have breached various conditions.

The noble Baroness has made her case extremely clear. We absolutely accept the principles. We are taking this forward in the pilots that I have mentioned. I realise there is another debate coming on. I am very happy to engage with her, as is my noble friend Lord McNally, and give her the answers to all the questions she has raised. I will not detain everybody at this point, and I hope that she will be prepared to work with us to take this further forward. As my noble friend Lord Carlile said, this is a very intractable, long-standing problem, but anything we can do to try to resolve the elements that we can, we should do; that comes overwhelmingly from people in this debate. We are taking forward these pilots—I give her that commitment—and let us discuss the details after the sitting.

[Baroness Finlay of Llandaff]

I am grateful to the Minister for having responded in that way, for offering to meet me and work through all the details. I am also extremely grateful for the support that I have had from all sides of the House, unequivocally. I make it clear that I am not against the tagging process; I am not against anything that deals with this problem effectively. What I am worried about is that if these schemes are not approved this problem will be kicked into touch for yet longer, as the noble Lord, Lord Carlile, said, and we just cannot do that. Like others, I also pay particular tribute to the noble Baroness, Lady Newlove, who has spoken movingly and has committed her life to trying to bring some good out of the tragedy that she personally suffered.

With that, I will not press my amendment tonight, but I look forward to further discussions, and I must warn the Government that if I do not get satisfactory answers I intend to bring this back on Report.