Offender Rehabilitation Bill [HL]

Lord Ahmad of Wimbledon Excerpts

Tuesday 11th June 2013 Lords Chamber

Although I am sympathetic to the amendment as described by the noble Lord, it raises a wider question of how current best practice as provided by our probation service might be superseded by the commercial interests of the provider, particularly given that that provider will be paid by results, and when we are led to believe that the results bonus will be less than 5% of the total value of the contract. That raises a fundamental question about the judgment which the responsible officers must make and how that may come into conflict with that of their employer.

[Lord Ahmad of Wimbledon]

My Lords, I thank both noble Lords who have taken part in the debate, in particularly my noble friend Lord Marks for highlighting in his contribution the importance of both family matters and, of course, sensitive issues of faith, which is also relevant to a fair percentage of our prison population.

This group of amendments would place an additional duty on responsible officers instructing offenders under the new rehabilitation activity requirement created by Clause 13, and would also place a new duty on the courts when imposing community orders and suspended orders more generally. To address first the comments of the noble Lord, Lord Ponsonby, about organisations’ or providers’ commercial interests right away, it would be wrong and totally inappropriate for those to supersede any other offender requirements. The whole point of rehabilitation is putting the offender at the centre.

I do not agree with the noble Lord’s three cohorts—the groups he put together. Even the no-hopers are worth a try. We need to ensure, in all the reforms we put forward, that anyone—even people whom society at large perceives as no-hopers—is worth a try. We should seek to assist them to become productive citizens of society.

Noble Lords may also find it helpful if I briefly explain what Clause 13 provides. It creates a new rehabilitation activity requirement that will combine key elements of the existing supervision and activity requirements available under community orders and suspended sentence orders. At present Section 213 of the Criminal Justice Act 2003 provides for a supervision requirement that may be imposed as part of either order. The requirement involves attending appointments during the period of the order with either the responsible officer or another person determined by the responsible officer. Section 201 of the 2003 Act provides for an activity requirement as part of either order. Under an activity requirement, an offender must first, present himself to a person specified in the order for a specified number of days, and secondly, participate in activities specified in the order for a specified number of days.

Clause 13 repeals both those requirements and merges them into a single rehabilitation activity requirement. Under the new requirement, offenders must comply with any instructions given by their responsible officer to attend appointments, participate in activities, or both. These instructions must be given with a view to promoting the offender’s rehabilitation, although they can serve other purposes as well. The effect of the clause is to allow the probation provider who is the responsible officer, rather than the court, to decide the exact details of what appointments or activities the offender should take part in to maximise their chances of turning away from crime.

Amendment 26 would require a responsible officer who is instructing an offender to attend appointments or participate in activities under this new requirement to take account of the offender’s family circumstances and, of course, any caring responsibilities that the offender might have. That would mean ensuring that appointments were suitable, that activities were compatible with the offender’s family circumstances, and that any place to which the offender was sent to take part in activities was suitable if the offender needed to take a child with them.

Amendment 30, although inserted into the clause about programme requirements, would apply to all requirements under any community order or suspended sentence order. It adds to the provision in Section 217 of the Criminal Justice Act 2003 that already requires a court to avoid, as far as possible, any conflict with the offender’s religious beliefs and any interference with his or her work or education. The amendment would add to Section 217 a new duty requiring the court to avoid—again as far as is practicable—any interference with the offender’s ability to carry out any caring responsibilities that he or she might have.

As I am sure that noble Lords will appreciate, the criminal justice system at all points endeavours to accommodate the personal circumstances of an offender. Courts will always sentence an offender in the light of their individual circumstances, together with the circumstances of the offence. Indeed, the law requires, where a court imposes a community order, that the requirements chosen must be, in the court’s opinion, the most suitable for the offender.

In addition to these general requirements, I can assure all noble Lords that there are already important safeguards in place to address childcare and other caring responsibilities where an offender is sentenced by the courts. These issues are covered in the assessments carried out when compiling pre-sentence and other reports that are considered by the courts before sentencing.

Probation staff will also respond to requests by the courts for specific information about family circumstances and courts will sometimes adjourn briefly so that such issues can be considered. If an offender is reluctant to divulge information about their children for fear that they may be taken into care, a post-sentence interview will often elicit the necessary information or the offender might tell their lawyer. If necessary, liaison will take place with local authority safeguarding authorities, or social security emergency duty teams, to safeguard the child or vulnerable person in question. In addition, the Sentencing Council has made it clear in its guidelines that:

“Where the offender is the sole or primary carer of the victim or other dependants, this potentially should be taken into account for sentencing purposes, regardless of whether the offender is male or female”.

Both courts and responsible officers are public authorities within the terms of the Human Rights Act 1998. This means that they are required to balance the need for the offender to attend appointments and take part in activities in order to secure his rehabilitation against his right under the Human Rights Act to respect for his private and family life. This point was well made by my noble friend Lord Marks.

What this adds up to is a clear indication that the courts already take all possible steps to avoid, as far as is practicable, any interference with the offender’s ability to discharge any caring responsibilities that he or she may have. For this reason, I argue that Amendment 30 is unnecessary. With these assurances and clarifications, I hope that my noble friend will be minded to withdraw his amendment.

[Lord Marks of Henley-on-Thames]

My Lords, I am again grateful for that helpful explanation of the Government’s position. The difficulty, as I see it, is something that I hope that we can consider between now and Report. As the noble Lord, Lord Ponsonby, pointed out, we are entering an entirely new era in the provision of probation services. The Minister is entirely right to say that best practice and sentencing guidelines require the courts and responsible officers—who are now in the public sector probation service—to have regard to caring responsibilities. However, there is a risk that in the new regime, which is a new world for probation provision, there will be a departure from best practice or, at any rate, a temptation to depart from it. I hope that, by amending the Bill in a similar way to our amendments, we could send out the message that family commitments have to be taken into account just as faith and education commitments are. In those circumstances, I invite the Government to consider these amendments carefully and sympathetically before we come back. I beg leave to withdraw the amendment.

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[Lord Ahmad of Wimbledon]

My Lords, I thank the noble Lord, Lord Beecham, for that clarification. His reasoning may not have been clear when he notified his intention to oppose the Question that the clause stand part, but it was in his explanation. It may be helpful to reiterate what Clause 14 intends to do. Currently an accredited programme can take place only in premises that have been approved by a probation trust or other provider of probation services. There is therefore a slightly redundant step built into the process for delivering accredited programmes, whereby trusts currently have to set up premises for programmes and then approve those premises themselves before courts can require offenders to attend. Clause 14 removes this requirement. Although probation providers will still want to satisfy themselves that a programme’s premises are suitable for those attending, as a result of the amendment there will no longer be a formal requirement in law for them to ratify or sign that off internally before courts can require offenders to attend.

Parliament has already approved a change in the law that means that the responsible officer, who is the person responsible for delivering the requirement, now chooses the accredited programme that the offender must follow. This was previously in the gift of the court. This change was made by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and commenced in December last year. As a consequence, the court no longer specifies where the offender must go to participate in the programme but simply imposes a programme requirement and sets the number of days on which the offender must take part.

The detail of the requirement is now in the hands of the provider, who is best placed to know which programme is the most likely to promote rehabilitation. This also means that where it emerges that a different programme would work better—for example, the offender starts on a cognitive programme but it becomes clear that a domestic violence programme would be better—the responsible officer can switch the programme without taking the order back to court. The amendment in Clause 14 merely furthers the principle of operational discretion for providers by removing the largely redundant requirement for formal approval of a place as suitable for offenders subject to a programme requirement.

In closing, I reassure noble Lords that the Government see a continued place for accredited programmes under our new framework for delivering services for offenders. Accredited programmes are evidence-based and developed from the academic literature on what works. Where interventions have a substantial degree of evidence for their effectiveness, it is important that we build on that success. Those advising the courts through pre-sentence reports will continue to be able to recommend a programme requirement where a particular intervention is available locally, and where probation professionals believe that it is the right way of dealing with the causes of an individual’s offending. Based on that clarification, I urge that Clause 14 should stand part of the Bill.

[Lord Beecham]

I am very grateful to the Minister for his clarification. It occurs to me to ask whether it would be envisaged that a provider of services in respect of the premises to which the noble referred could require, for example, repair work to be carried out for the benefit of the provider. That potentially would create a conflict of interest. I do not ask for an off-the-cuff response, but I would be grateful if the Minister would look at it.

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[Lord Ponsonby of Shulbrede]

My Lords, the noble Baroness, Lady Hamwee, raised some interesting points about the role of the responsible officer when an offender applies to change their residence. When considering this amendment, I immediately thought of all the potential problems that might arise. There is also the general point about the level of independence of judgment of the responsible officer when considering these applications. Two questions came to my mind. What would be the position if somebody with a series of convictions for domestic violence wanted to move into a house with a new girlfriend? That might hinder rehabilitation; it would be a judgment that would have to be made by the responsible officer. I do not know what the result might be. I am not sure that the responsible officer would necessarily be told that that was the situation.

Conversely, what would happen if the girlfriend wanted to move into the offender’s current address? If told about it, the responsible officer may have a responsibility to the new girlfriend to ensure that she is informed of the offender’s previous convictions. These are difficult matters which need a lot of expertise to be able to deal with them and there needs to be guidance—maybe non-statutory guidance—for the officers. In general, I am sympathetic to the amendments which the noble Baroness has moved, but I am conscious that there may well be many problems with making those decisions.

[Lord Ahmad of Wimbledon]

My Lords, I thank my noble friend Lady Hamwee for moving her amendment and the noble Lord, Lord Ponsonby, for his contribution.

Before responding to the substance of the two amendments, it may be helpful if I briefly set out the purpose of Clause 16. In essence, it would place a new duty on offenders serving community orders or suspended sentence orders to seek permission from their responsible officer or from a court before changing their residence. It replaces the existing requirement for offenders simply to notify their responsible officers after they have moved. It is intended to deal with cases where an offender moving from one probation trust puts at risk the effectiveness of their rehabilitation. For example, a move to a different area may bring to an end an established relationship with the offender’s supervisor. Instead, they may have to start again with a new supervisor from a different probation trust or, in the future, a different rehabilitation provider.

Noble Lords will know that the personal relationship between offenders and their supervisors is important to reducing reoffending. Evidence suggests that offenders with a positive relationship with their offender manager are less likely to offend. This will be particularly important with a move to a through-the-gate model of support, where an offender may have had contact with the same mentor or supervisor before and after release. Another example is a case where a specialist programme that the offender is attending is not available in the area that the offender is proposing to move to. In such cases, a court or responsible officer may consider that ending participation in that programme may set back the offender’s rehabilitation.

Clearly, there are many reasons to support, rather than prevent, an offender changing residence. For example, an offender may be moving to live with family or to take up a new job. We recognise that there will be many cases where a move would not have any negative impact on rehabilitation or on compliance with the order. For example, it may be a move of only a short distance which does not prevent the offender attending required appointments. Even with a long-distance move, programmes may be available in the new area that are equally as appropriate as those in the old area. We recognise this and have built it into the way that the clause is structured. The clause limits the circumstances in which a court or responsible officer can refuse permission to change residence to only two scenarios: where the move is likely to prevent the offender complying with a requirement of the order; or where the move would hinder the offender’s rehabilitation.

Amendment 31 would make explicit that these are the only grounds on which a court or responsible officer can refuse permission to change residence. However, the effect of the way that the clause is drafted is to provide already for these two circumstances, and only these two circumstances, to be grounds for refusal. I am very happy to make that clear to my noble friend Lady Hamwee. I hope that, on that basis, she will see fit to withdraw the amendment.

The noble Lord, Lord Ponsonby, who always comes to these matters with great experience and expertise, gave the example of an offender who had been committed for domestic violence. This situation would require a subjective assessment to be made and it would be for the responsible officer to weigh it up in the risk assessment. This is the sort of decision that professionals make on a daily basis. I listened with great care to the noble Lord’s suggestion about looking at the guidance. I am sure that we will look at it, and I take on board the comments that he made in that respect.

Amendment 32 would provide that a court or responsible officer cannot refuse an application to change residence unless the offender’s rehabilitation or compliance with a requirement of the order would be significantly less likely to be achieved. I hope that I can reassure my noble friend on a number of points. First, even if a move is likely to prevent compliance or would hinder rehabilitation, courts and responsible officers will still have to balance this with other factors. For the purposes of this clause, both courts and responsible officers, whether probation staff or from the voluntary or private sectors, are public authorities within the terms of the Human Rights Act 1998. This means that they are required to balance the impact of the proposed move on rehabilitation or compliance with the order against the offender’s interests in making such a move. They will have to consider the availability of rehabilitative support in the area that the offender wishes to move to, and the extent to which an offender could comply with a requirement in the new area. They will also have to consider the offender’s Article 8 rights. For example, an unemployed offender may wish to move to take up a new job or for family reasons—for example, if their partner is taking up a new job or if a parent is unwell and they need to provide them with care or support. In many cases, factors like these would outweigh concerns about compliance with a requirement or continued rehabilitation. It would be open to a responsible officer to take the order back to court to ask for it to be varied or revoked to suit the offender’s new circumstances.

I would also point out that the clause provides the safeguard of allowing offenders to apply to the court for a decision in cases where the responsible officer has refused permission to change residence, so in cases where offenders feel there are compelling reasons to move which outweigh any potential impact on compliance with a requirement or rehabilitation, they would be able to apply directly to the court to reconsider their case. I hope that these points reassure my noble friend, and, indeed, all noble Lords, that this clause provides a means of supporting the continuity of rehabilitation in cases where a change of residence could put it at risk without impinging on offenders’ wider family or work commitments. With those reassurances, I hope that my noble friend will feel able to withdraw the amendment.

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[Lord Hylton]

My Lords, I want to add only that just one court with a proper support network would be very much better than nothing.

[Lord Ahmad of Wimbledon]

My Lords, I thank all noble Lords who have taken part in the debate. I particularly thank the noble Lord, Lord Beecham, for tabling this amendment. I listened carefully to the very poignant story that he told of Mr A’s experiences and how we can build upon that. I also thank the noble Lord, Lord Ramsbotham, who is extremely well placed and well qualified to speak with authority on this subject, with his background in the Armed Forces, as a former Chief Inspector of Prisons and as president of the Veterans in Prison Association.

As my noble friend Lord McNally said at Second Reading, we share the concerns that have been expressed by all noble Lords in this debate and by the House as a whole—indeed, by Parliament as a whole—that ex-service personnel are ending up in the criminal justice system and, even worse, at times ending up in prison.

However, we should not make our genuine concern, which we have heard today, about our ex-service personnel appear unduly alarmist about service in our Armed Forces. To keep this in perspective, there is some evidence that points to the fact that having served in the Armed Forces is a preventative factor in offending—that is, those who serve in the Armed Forces are less likely to offend than the general population. However, many of those ex-service personnel who offend—I fully acknowledge this, and I am sure that this sentiment resonates with everyone in your Lordships’ House—have served their country, and we owe it to them to ensure that we are doing all that we can to support them.

I do not want to go into the specific wording of the amendment because I acknowledge, and I am sure that this was the intention of both noble Lords, that it was designed to highlight this issue so that we could discuss it further. The amendment raises some fundamental and important questions about the different approaches that could be taken. For example, should we be looking at a body designed to divert ex-service personnel before they get to the criminal courts? Should we be considering whether there is a case for ensuring that courts have greater knowledge and awareness in dealing with this group of offenders? Or should we be considering an oversight role, looking at the most effective ways to rehabilitate ex-service personnel? These are questions that we will look at in conjunction with the judiciary, my colleagues in the Ministry of Defence and other government departments.

This is not to suggest that there is nothing going on in regard to veterans. It is true that some ex-service personnel will struggle to adjust to civilian life, but the Armed Forces do much more than other employers in retraining and reskilling staff who are leaving their employ. We are doing more to identify the particular needs of those offenders who end up in prison, including issues arising from their previous service. All prisons should now have a “veteran in custody support officer” to help with and co-ordinate the assessment and support of ex-service personnel offenders.

I should like to take a moment here, and I am sure that noble Lords across the Chamber will want to join me, to praise the excellent work that many voluntary sector organisations do both in prisons and in the community with offenders, notably the Royal British Legion and SSAFA, the Soldiers’, Sailors’ and Airmen’s Families Association.

Important work is therefore going on, and we will be looking at how that may be best developed. I should say that, as part of our plans to improve the rehabilitation of offenders, we will expect providers of probation services to provide flexible and tailored services to offenders, including addressing the particular needs of ex-service personnel. During meetings that we have had around the Bill with the Lord Chancellor, the Secretary of State and indeed with all Peers, I know that this issue was raised by other Peers. The noble Lord, Lord Reid, raised specific examples of what he had seen in Scotland. We have seen examples of this through the PbR pilots. For example, as part of the pilot at HMP Doncaster, ex-service personnel are being matched up with mentors who themselves are from service backgrounds to support their rehabilitation on release from custody.

I cannot say that we will bring back amendments in this Bill to create a new veterans’ court, and in fact legislation for a pilot may not be required. However, to pick up the point made by the noble Viscount, Lord Slim, I fully acknowledge that we need to give this issue particular thought and much more careful consideration, and the department is already looking at it. I invite all noble Lords across the Chamber to work with us in this respect; I would welcome the opportunity. That will enhance and develop our discussions further, and I think that we will benefit a great deal from the expertise in your Lordships’ House.

While we will continue to ensure good practice is continued and developed among providers, we will also consider what further options may be required for the longer term. I noted in particular the comment by the noble Lord, Lord Ramsbotham, when he talked about the establishment of such a court and what surrounds that court—the need for support that goes much wider. It is important that the Government, and indeed the House in its contributions in looking at this matter, take a very holistic approach.

With those reassurances of our continued and passionate shared commitment, as expressed around the House today, to develop support for ex-service personnel, I hope that the noble Lords are able to withdraw their amendment.

[Lord Beecham]

My Lords, I express a sense of slight disappointment with the Minister’s reply. I am grateful to the noble Lords who have supported the amendment. I rather expected the Government to say that they would at least go forward with a pilot, whether or not legislation was required for that. I would have hoped that they would acknowledge that there would be space in the Bill to allow for the establishment of these courts if legislation were required for that, although maybe it is not—it will be interesting to find out on Report if it would require legislation to establish this system—and for the Government to allow for such an eventuality after a pilot. If the Government are not prepared to give an assurance that a pilot will be mounted, it will be necessary to bring this amendment or something like it back before the House and, perhaps, to test its opinion. Sympathy is welcome but, as we have heard already this afternoon, sometimes it only goes so far.