Lord Marks of Henley-on-Thames
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“Powers of the probation service to impose and vary conditions of supervision(1) Where an offender is—(a) subject to a community order, a suspended sentence order, or a period of probation supervision, and(b) required to reside at a specified address as a condition of that order or supervision,the Probation Service may, in accordance with this section, direct that the offender reside at an alternative address.(2) A direction under subsection (1) may be given where—(a) it is necessary to protect another person (including a partner, former partner, or family member) from risk of harm, (b) it is necessary for the effective management or rehabilitation of the offender, or(c) it is otherwise in the interests of justice.(3) Where the probation service has made a direction under subsection (1), it may recommend or determine other terms of supervision, including—(a) restrictions on contact or association with specified individuals,(b) requirements relating to participation in programmes addressing offending behaviour, or(c) curfew or exclusion requirements, subject to approval by the sentencing court.(4) Where a direction or variation made under this section materially alters the conditions imposed by the sentencing court, the probation service must—(a) notify the court and the offender as soon as possible, and(b) seek approval by the sentencing court of the varied terms within 14 days, and in the absence of such approval the variation of the terms will not be effective.(5) Any direction or variation made under this section shall not have effect as if imposed by the sentencing court, until it has been approved by the court.(6) In this section, “the probation service” includes any person or body authorised to supervise offenders under the Offender Management Act 2007.”Member's explanatory statement
This new clause would give the probation service the power to change the residence requirement of an individual subject to supervision in certain circumstances, and to make other changes to the terms of supervision, subject to confirmation by the sentencing court.
Lord Marks of Henley-on-Thames (LD)
My Lords, my Amendment 122, which is on page 25 of the Marshalled List, would give the Probation Service the power to change the required residence of an offender under supervision, and to make necessary consequential changes to the probation conditions and terms that apply to that offender’s probation. Any such change would, however, be subject to the approval of the sentencing court.
This amendment is about trusting probation officers to do their job by giving them the power to tailor probation terms to the needs of individuals under their supervision. It would have the incidental benefit of saving the court’s time. The safeguard is, however, the requirement for approval by the sentencing court, but it is to be imagined that in most cases that would be a formal procedure. It is right that the sentencing courts have ultimate control, but I would confidently expect the proposed changes sought by probation officers to be approved.
This amendment is all about trusting probation officers to tailor the probation over which they have supervision to the needs of individual offenders. I beg to move.
Lord Sandhurst (Con)
My Lords, I will speak briefly to Amendment 122, in the name of the noble Lord, Lord Marks of Henley-on-Thames, which concerns the power of the Probation Service to vary residence requirements and associated conditions of supervision.
I begin by saying that we on these Benches appreciate the intention behind the amendment. The ability to move an offender from one address to another, particularly where there is a risk to a partner, former partner or family member, is plainly necessary in some circumstances. The Probation Service must have the tools to protect victims and to manage offenders effectively. This amendment seeks to provide a clearer statutory framework for doing so.
The amendment rightly provides that, where the Probation Service makes any such variation, it must return to the sentencing court for approval within 14 days of the confirmation. That is an important safeguard; the offender, the interested parties and the court must all be properly kept in the picture. However, we would welcome greater clarity from the Minister on how, in practice, the Probation Service would assess necessity, ensure proportionality and manage the additional administrative and supervisory burdens that such powers might create. Probation must also be properly resourced and supported.
We are also mindful that changing an offender’s residence could have profound consequences, not only for supervision and risk management but for the offender himself, in the form of employment, family ties and wider stability that underpins rehabilitation. The threshold for such a direction must therefore be robust, evidence-based and truly transparent.
In that spirit, I hope the Minister can reassure the Committee that the objectives behind this amendment—protecting victims and enabling better offender management—are achievable within existing powers, or, if not, that the Government will consider whether a more tightly defined mechanism might be appropriate. We are grateful to the noble Lord for raising these issues, and we look forward to hearing the Government’s response.
Lord Timpson (Lab)
My Lords, it is, and should remain, the role of the court in sentencing to determine the requirements that should apply to a particular community sentence and how they are varied. As the noble Lord, Lord Marks, set out, it is vital that risk is managed quickly and effectively. This is particularly important in cases where, for example, domestic abuse is of concern.
Where an individual has been sentenced to a community or suspended sentence, probation practitioners undertake comprehensive assessments to ensure that risk is identified throughout an order and managed early. This means that they can take appropriate action to respond to that risk, ensuring offenders are monitored effectively. This includes applying to the court, where appropriate, which has powers to vary the requirements of a sentence, including the powers to revoke a community order and to resentence, where it would be in the interests of justice.
We are creating a new domestic abuse flag at sentencing so that domestic abusers are more consistently identified. This helps prison and probation services manage offenders effectively and ensures that victims are better protected. Before making a relevant order containing a residency requirement, the court must consider the home surroundings of the offender.
The court can already give probation the power to approve a change of residence when requested by the offender—for example, where an offender would like to move closer to where they were undertaking a programme or to their place of employment. Offenders released on licence from a custodial sentence can already be required to comply with residence obligations. These can be varied as required, either by probation or the Parole Board, as appropriate, depending on the offender’s sentence.
To be clear, if an offender fails to comply with the terms and conditions of an order, they can be returned to court to face further penalties, including custody. I hope the noble Lord will agree that there are sufficient existing processes in place, and I urge him to withdraw his amendment.
Lord Marks of Henley-on-Thames (LD)
I am not sure that I understand the rationale for saying that there are already existing powers in the Probation Service. That is something I wish to talk to the Minister about, and I am sure he will be happy to do that. We are very keen that the Probation Service be trusted to make such alterations on its own, subject to the approval of the sentencing court. We absolutely agree on that. However, currently I am not quite sure where the Government stand on this. It appears to me that they are too reliant on the sentencing court and too little reliant on the Probation Service, but I am sure that that is something we will discuss. While we discuss that, I beg leave to withdraw this amendment.
Baroness Chakrabarti (Lab)
I am sorry. It is nearly Christmas, and it is late.
There are policies that sit on shelves in Westminster and Whitehall for many years, and over the years and the decades people reach for the shelf and pull them off. It is very easy to blame civil servants, but the special adviser class—a cross-party class—have their files on the shelves too, and this naming and shaming thing has been doing the rounds for decades. Our lovely friends the special advisers are not here in the Chamber at this time; they are at the Spectator party or the New Statesman party or whatever it happens to be this evening, but naming and shaming of offenders is a really bad idea.
I agree with the noble Baroness, Lady Bennett. The one point of difference is that, if one were to be charitable, one would say it is really important that the public have faith and confidence in community orders. I agree with that, so I would support a slight alternative to this approach, so that we are not naming and shaming particular offenders but taking other steps to make very clear in the community that this was built, cleaned or done by offenders serving sentences in the community. That would achieve the best ambitions of this policy without the cruelty and humiliation that the noble Baroness rightly identifies. That is what I ask my noble friends the Ministers to take back to the department and reflect upon. I think that would be something the Government could think about before Report.
Lord Marks of Henley-on-Thames (LD)
My Lords, I oppose this clause standing part of the Bill. It seems to me that everything that has been said by the noble Baronesses, Lady Bennett and Lady Chakrabarti, is right. I also agree with the suggestion by the noble Baroness, Lady Chakrabarti, that there is nothing at all wrong with saying that work of a particular kind was done by offenders as part of their community order. What I object to is, as she says, the naming and shaming.
But it goes further than that—it is, by definition, naming and shaming of offenders under supervision, because it is only offenders who are undertaking an unpaid work requirement who will be subject to this clause. I suggest that the compulsory photographing of such offenders—by probation officers, if you please—and the publication of those photographs and the offenders’ names, would be profoundly damaging. I, like the noble Baroness, Lady Bennett, regard this clause as likely to damage relationships between probation officers and their clients, undermine offenders within their communities and make it more difficult for those offenders to integrate within those communities. The clause is overwhelmingly unlikely to do anything to rehabilitate offenders or reduce reoffending. It is, in short, largely vindictive only. Since one can expect the publication of names and photographs mostly to be by local media outlets, such publication is likely to fuel hostility to offenders whom we are trying to rehabilitate among their community and likely to encourage what the right reverend Prelate the Bishop of Gloucester earlier today called “penal populism”, with what, I suggest, could be only damaging effects.
We completely accept the position put by the noble Lord that community sentences are punishment and are intended to be punishment. They are punitive in the sense of restricting an offender’s liberty and imposing requirements that may be onerous on offenders, but they are also primarily directed at enabling rehabilitation and reducing reoffending. For such sentences to work, friendly and constructive relationships between probation officers and offenders, their clients, under their supervision and efforts to enable those offenders to be settled in their communities are vital. These proposals are, frankly, inimical to those ends. I have come across no evidence whatever that this kind of naming and shaming will do any good or reduce reoffending in any way. I believe it can only do harm. For that reason, I oppose this clause, and I invite the Government to abandon it.
Lord Bach (Lab)
My Lords, I am a great supporter of this Bill, and I also believe in tough community sentences. I think they are essential if we are to keep people out of prison. But I have to say that on this issue I do not see any positive point arising out of this clause. In my experience of working with probation officers—a long time ago, but I dare say they are not that different now than they were when I was in practice—I cannot see the likelihood of any probation officer wanting to do this and thinking that it was helpful in terms of making sure that his or her clients behave themselves in future. I think this is an excellent Bill, but I do not think this clause should be part of it.
“Review of sentence following a change in law(1) Where a person is serving or subject to a sentence imposed for an offence, and—(a) the offence has been abolished, or(b) there has been a change in the law which materially alters the sentence that would be imposed for the same offence following that change in the law,that person may apply to the sentencing court, or to such other court as may be prescribed, for a review of the sentence.(2) On such an application, the court may—(a) quash the sentence and resentence the person in accordance with the law as so changed, or(b) make such other order as necessary in the interests of justice. (3) The Secretary of State may by regulations make provision for the procedure and eligibility criteria for applications under this section.”Member's explanatory statement
This new clause would allow a person still serving a sentence under a law that has changed to seek review or resentencing in line with the existing law.
Lord Marks of Henley-on-Thames (LD)
My Lords, this group of two amendments in my name and that of my noble friend Lady Hamwee addresses the position of the effect of changes in the law.
Amendment 138 would give a right of review to an offender serving a sentence for an offence that has been abolished, or where the change in the law has altered the sentence that might be imposed. The offender in such a case would be entitled to apply to the court to give them the benefit of the change in the law and seek a decision that the sentence should be quashed, or a resentencing on the basis of the law as changed, or an alternative order that was in the interests of justice. It is a simple amendment that would entitle an offender serving a sentence to say that the law has changed and that if they were sentenced today or tomorrow, they would not be suffering the sentence that they are now serving, so please change it.
Amendment 139 addresses changes in the law more generally. It would require the Secretary of State to review and report every three years on changes in the law that would affect those already sentenced, where their sentences would be different as a result of changes in the law. So we move from the particular in Amendment 138 to the general in Amendment 139. The report would cover the adequacy of existing mechanisms for addressing perceived injustice arising from such changes in the law. The report would be bound to include recommendations for change to address such injustices and also data on the numbers of offenders involved and the numbers of those still in prison.
Lord Marks of Henley-on-Thames (LD)
My Lords, I will withdraw the amendment at this stage, but it is on the basis that I do not accept the criticisms of the detail of Amendment 138 made by the noble and learned Lord, Lord Keen. The fact that a sentence has to be suspended under the requirements of the Bill does not mean that it is necessarily a lesser sentence that would not have been passed. In relation to other sentences that would not exist or offences that have been abolished, it seems to me that Amendment 138 ought to be accepted.
I accept that there are considerations of spent convictions that may have a bearing on this, but I am not sure that we are in the same ballpark when we are talking about spent convictions and either quashing a conviction or resentencing as a result of a change in the law. As for the review and report on recommendations and data, I understand that the Government’s position is that such review is carried out. It would be helpful to know what the publicity for that exercise is and how far the public and everyone else is going to be made aware of the reviews that are carried out, but that is something that we can discuss informally, I dare say. In the meantime, I will withdraw the amendment, if leave is given.
“Suspension of driving licences during bail for driving related offences(1) This section applies where an individual has been granted bail in respect of one of the following offences—(a) an offence under section 1, 1A, 2B, 2C, 3ZB, 3ZC, 3ZD or 3A of the Road Traffic Act 1988;(b) an offence under section 4, 5 or 5A of the Road Traffic 1998.(2) The court may, as a condition of bail, suspend the driving licence of the individual, pending the outcome of any criminal proceedings.”Member’s explanatory statement
This new clause would allow the court to suspend the driving licence of an individual charged for certain driving offences, pending the outcome of the trial.
Lord Marks of Henley-on-Thames (LD)
My Lords, this amendment, in the final group of what has been a very long afternoon and evening, would give the power to a court when granting bail to a defendant charged with the most serious driving offences to suspend that defendant’s driving licence pending the outcome of criminal proceedings.
To recap fast, the offences covered by the amendment are: causing death or serious injury by dangerous, careless or inconsiderate driving; causing death by driving unlicensed or uninsured or when disqualified, or by careless driving when under the influence of drink or drugs; driving or being in charge of a vehicle while unfit through drink or drugs; and driving or being in charge of a vehicle while unfit through having alcohol over the limit or controlled drugs over the limit.
The reason for this amendment is obvious. When a court grants bail, it is carrying out an exercise of balancing the public interest in not prejudging the guilt of a defendant before that defendant is tried against the other public interest of keeping the public safe. I contend that the balance is clear when a power formally to suspend the driving licences of defendants charged with these offences is under consideration. These are life-threatening driving offences, and suspending a licence as a condition of bail for such a defendant is entirely appropriate. The suspension may not always be imposed but for the power to be there seems quite clearly desirable. I beg to move.
Lord Sandhurst (Con)
My Lords, I am grateful to the noble Lord, Lord Marks of Henley-on-Thames, for bringing forward this amendment. It proposes as a condition of bail to allow the courts to suspend the driving licence of individuals charged for certain driving offences. The offences in question include causing death or serious injury by dangerous driving or by careless or inconsiderate driving, or by unlicensed, uninsured or disqualified drivers. In addition, it includes those charges relating to driving when under the influence of drink or drugs or above the prescribed limits.
Safety on our roads is of prime importance, and the police have the ability to impose driving bans as a condition of bail under the Bail Act 1976 to ensure that further driving-related offences are not committed by those charged while criminal proceedings are ongoing. Indeed, driving offences committed while on bail are rightly treated as a serious matter. None the less, the potential benefits of public safety must, in a country where you are presumed innocent until proved guilty, be balanced with the rights of an as yet unconvicted defendant. Individuals who are granted bail may be on bail for extended periods of time, during which they may, assuming that other conditions on work have not been put in place, still have to drive to their place of work, for example.
So far, the powers to impose a driving ban as a condition of bail have been operational matters for the police. That said, allowing the court to suspend the driving licence of an individual as a condition of bail pending the outcome of any criminal proceedings would be a preventative step to reduce the risk of further driving-related offences being committed. We thank the noble Lord for initiating this debate and look forward to the Government’s response.
Lord Timpson (Lab)
I thank the noble Lord, Lord Marks, for this amendment, which seeks to give courts an express power to suspend the driving licence of individuals charged with specified driving offences as a condition of bail. We recognise that driving offences can have devastating consequences for victims and for their families and friends. Driving while under the influence of alcohol and drugs is a serious offence with potentially life-changing consequences.
There are already robust powers available to the police and the courts to impose bail conditions where there is a risk to public safety. This includes restrictions on driving where appropriate. In certain cases, courts may also impose an interim driving disqualification before sentencing. Road safety remains an absolute priority for this Government. The Department for Transport will shortly publish a new road safety strategy, and the Secretary of State for Transport has indicated that this will include a review of motoring offences. While I appreciate the importance of the issue raised by the noble Lord, given the forthcoming strategy and existing powers available I urge him to withdraw this amendment.
Lord Marks of Henley-on-Thames (LD)
I ask the Minister to consider this. The power to suspend that is sought by this amendment would be a power exercisable by the court and therefore reportable to the DVLA, as a result of which the driving licence would be formally withdrawn. I am not sure that is true of a ban on driving imposed by the police as a part of bail. That is the importance of the suspension that I suggest.
Lord Timpson (Lab)
I thank the noble Lord and will very happily meet with him next week to discuss that, as I suspect that there may be other matters that we wish to discuss on this Bill. I would be very appreciative of that.
Lord Marks of Henley-on-Thames (LD)
Pending those discussions, I beg leave to withdraw my amendment.