Legal Aid, Sentencing and Punishment
of Offenders bill
The Committee consisted of the following Members:
Kate Emms, Committee Clerk
† attended the Committee
Vicki Helyar-Cardwell, Director, Criminal Justice Alliance
Juliet Lyon, Director, Prison Reform Trust
Frances Crook, Director, Howard League for Penal Reform
Andrew Neilson, Deputy Director, Head of Public Affairs and Policy, Howard League for Penal Reform
Jonathan Ledger, General Secretary, NAPO
Steve Gillan, General Secretary, Prison Officers Association
Louise Casey, Independent Commissioner for Victims and Witnesses
Sally Gimson, Head of Public Policy, Victim Support
John Thornhill, Magistrates Association
John Fassenfelt, Magistrates Association
The Chair: Before we begin, I have a few preliminary announcements for the Committee. Members may, if they wish, remove their jackets during Committee sittings. Please will all Members ensure that mobile phones, pagers and other devices are turned off or switched to silent mode during our sittings?
As a general rule, I and my fellow Chairs do not intend to call starred amendments, which have not been tabled with adequate notice. The required notice period in Public Bill Committees is three working days. Therefore, amendments should be tabled by the rise of the House on Monday for consideration on a Thursday, and by the rise of the House on Thursday for consideration on a Tuesday.
Not everyone is familiar with the process of taking oral evidence in Public Bill Committees, so it might help everyone if I briefly explain how we will proceed. The Committee will first be asked to consider the programme motion on the amendment paper. Debate on that is limited to half an hour. The Government have tabled an amendment to the motion. We will then proceed to a motion to report written evidence and then to a motion, which I hope we can take formally, to commit the Committee to deliberate in private in advance of the oral evidence sessions.
Assuming that the second motion is agreed to, the Committee will move into private session. Once the Committee has deliberated, witnesses and members of the public will be invited back into the room, and our oral evidence session will begin. If the Committee agrees to the programme motion, we will start to hear oral evidence this morning.
(3) proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 8, Schedule 1, Clauses 9 to 23, Schedule 2, Clauses 24 to 30, Schedule 3, Clauses 31 to 36, Schedule 4, Clause 37, Schedule 5, Clauses 38 to 40, new Clauses and new Schedules relating to Part 1, Clauses 41 to 52, Schedule 6 and 7, new Clauses and new Schedules relating to Part 2, Clauses 53 to 57, Schedule 8, Clauses 58 to 72, Schedule 9, Clause 73, Schedule 10, Clauses 74 to 88, Schedule 11, Clauses 89 to 93, Schedule 12, Clauses 94 to 101, Schedule 13, Clauses 102 to 106, Schedule 14, Clauses 107 to 109, Schedule 15, Clauses 110 to 113, Schedule 16, remaining new Clauses, remaining new Schedules, Clauses 114 to 119, remaining proceedings on the Bill;
‘(a) in the fourth entry for Tuesday 12 July, in the third column, leave out ‘Council of Her Majesty’s Circuit Judges’;
(b) in the fifth entry for Thursday 14 July, in the third column, after ‘Children’s Commissioner’ insert ‘for England’.
Mr Djanogly: Thank you, Mr Hollobone, for that introduction. I and my colleagues are looking forward to serving under your chairmanship over the coming weeks. The dates are set out in the motion. There will be 18 sittings over nine days, including four sittings to hear evidence. We think that that is adequate time for consideration of the Bill. We have invited a broad range of witnesses and taken some helpful suggestions from the Opposition about them, and we look forward to hearing from them over the coming days. We propose to consider the Bill in order, with schedules taken with relevant clauses. We propose to debate any new clauses and schedules when we get to the end of each part of the Bill.
The Opposition have already made it clear to the Government that we think that the timetable for the Bill’s Committee stage is not adequate, and that at least one extra day is needed for taking evidence. The fact that the Minister has to amend the timetable for evidence, because one of the important witnesses, the Council of Her Majesty’s Circuit Judges, cannot come at that time, is evident of the rushed nature of the proceedings. That began by not allowing adequate time between the publication of the Bill and the debate on Second Reading, and it is continuing now. We have already made it clear that we think there should be more days for line-by-line consideration of the Bill extending further into October. We will oppose the programme motion this morning
I will be brief because there is an irony in taking a long time to debate the programme motion—it takes time from witnesses. However, this is a very important point. It particularly refers to the two days of witness evidence. In a way, it is a tribute Clerks’ work in accommodating almost all the 35-odd witnesses who have been suggested by the Government and the Opposition. The consequence of that is that there is such a short time to deal with each witness that their evidence becomes, not irrelevant, but so severely curtailed as not to give fair representation of their views.
Let me consider two examples of that. Today, we have one hour to hear from the Law Society, the Bar Council and two other very important witnesses in one session. The Law Society and the Bar Council alone no doubt have comments to make about all the different aspects. This is a Christmas tree Bill, which has many important and differing parts to it. On Thursday 14
July, we will take, in the course of four to five minutes, evidence from Shelter, Citizens Advice, the Law Centres Federation, the Advice Services Alliance and R3, which has a particular brief on insolvency. How on earth can the Committee, with the number of Members it has, adequately question those witnesses in that time? We made a very reasonable request for a third day of evidence, which, at least, would have given the expanded time to do that. We have not been granted that.
We also asked for a modest four additional days for consideration, clause by clause, of the Bill. Let me specifically comment on the evidence today. The oral evidence sessions will not be adequate to the task. It is a subversion of the purpose of those sessions, which is to allow adequate time for these very important witnesses to give evidence. We will oppose the programme motion on the clear basis that we wish to see one additional day’s evidence.
I wonder whether I could give a little reassurance to the hon. Member for Hammersmith. The Justice Committee has looked in great detail at the Government’s legal aid proposals—considerable detail over many weeks and many thousands of words of evidence. The Government have made some key changes in response to their consultation, but the great bulk of proposals is as presented to the Justice Committee, and we investigated them at considerable length.
I know that the hon. Gentleman is a keen reader of the Justice Committee’s official journal, but if he were to reacquaint himself with it, he would find ample time given to the Law Society, the Bar Council, the Family Law Bar Association, and a whole series of other organisations that gave evidence in detail. He could inform himself thereby. This afternoon’s evidence session is perfectly adequate for looking at the Government’s changes to the existing proposals.
Adverting to what the hon. Member for Ipswich just said, I am also a member of the Justice Committee. We do not have a monopoly on wisdom. If it means anything at all, this process means starting again. We cannot dictate to a Standing Committee what should be changed in the law. It seems to me the whole purpose of today is to ask experts in the field to give their opinion of a very important measure. I do not know how the three esteemed bodies are going to do it in half an hour each. It is almost offensive to them. We are just going through the motions and that is not good enough.
I am a bit worried about the way the debate has gone. It seemed from the contribution of the hon. Member for Ipswich that he had come here with a predetermined view of the Bill. It is a Bill Committee’s job to scrutinise Bills line by line and make recommendations and decisions. It is not the job of the hon. Member for Ipswich to come to a Committee with a predetermined view.
I support the comments of colleagues who have spoken for more time. I want to add that, in my previous experience of sitting on a Public Bill Committee, we had the opportunity to question the Secretary of State in an evidence session. I am surprised and disappointed
I am rather surprised to be lectured on programme motions by the Opposition, and from someone who, in the previous Parliament, was in a Government who abused the guillotine to such an extent. I remember sitting in this very room waiting for some evidence from a former director of MI5 that was blocked by the previous Government in case she said something that they did not like. “Pot” and “kettle black” comes to mind.
The Opposition are asking us to reconsider the programme motion when, so far, the Opposition have not tabled a single amendment to the Bill. How can we disagree with a programme motion when we do not know what the Opposition are going to put forward to amend the Bill? So far, their ideas—like their policy—are completely blank on this Bill. They are asking us to vote against a programme motion just because they do not like it, but there is a deafening silence on any alternatives to the Bill.
Amendment made: ‘(a) in the fourth entry for Tuesday 12 July, in the third column, leave out ‘Council of Her Majesty’s Circuit Judges’;
(b) in the fifth entry for Thursday 14 July, in the third column, after ‘Children’s Commissioner’ insert ‘for England’. —( Mr Djanogly.)
(3) proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 8, Schedule 1, Clauses 9 to 23, Schedule 2, Clauses 24 to 30, Schedule 3, Clauses 31 to 36, Schedule 4, Clause 37, Schedule 5, Clauses 38 to 40, new Clauses and new Schedules relating to Part 1, Clauses 41 to 52, Schedule 6 and 7, new Clauses and new Schedules relating to Part 2, Clauses 53 to 57, Schedule 8, Clauses 58 to 72, Schedule 9, Clause 73, Schedule 10, Clauses 74 to 88, Schedule 11, Clauses 89 to 93, Schedule 12, Clauses 94 to 101, Schedule 13, Clauses 102 to 106, Schedule 14, Clauses 107 to 109, Schedule 15, Clauses 110 to 113, Schedule 16, remaining new Clauses, remaining new Schedules, Clauses 114 to 119, remaining proceedings on the Bill;
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Mr Djanogly.)
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Mr Djanogly.)
Examination of Witnesses
Q 1 The Chair: I welcome members of the public back to the room. I am sorry for the temporary inconvenience of having to step outside. I also welcome our witnesses to the floor. We will now as a Committee hear oral evidence from the following groups: the Criminal Justice Alliance, the Prison Reform Trust and the Howard League for Penal Reform, from which we have two representatives. For the record, could I please ask our witnesses to introduce themselves to the Committee in a big, loud, crisp voice, so that the Hansard reporters can pick it up?
Q 2 The Chair: Before calling the first Member to ask a question, I should remind all Members that questions should be limited to matters within the scope of the Bill and that we must stick strictly to the timings in the programme order that the Committee has just agreed. I hope that I do not have to interrupt mid-sentence, but I
Juliet Lyon: I would like to say that the Prison Reform Trust welcomes many of the opportunities and measures in the Bill—I am careful not to say all—in a valiant and useful effort to try and sort out various messes that have occurred within the justice system, which we fear over years has responded to populist concerns. The inflation in sentencing has led to undue pressure on the Prison Service, on other criminal justice bodies and, of course, on prisoners themselves and their families. We think that the moderation and proportionality within the Bill are to be welcomed.
Frances Crook: I would like to echo that. The Howard League for Penal Reform does welcome many of the measures in the Bill. It is very important to exert downward pressure on the system, because over the last 10 to 15 years, the prison system has sucked in far too many resources and too much attention, and it is important to exert some downward pressure. We welcome the general thrust and think some of the tidying up is very important. We are concerned about some of the clauses in the legislation that I think are a bit muddled. In the spirit of constructive discussion, we would like to offer some helpful suggestions to the Committee about how that can be tidied up.
Q 3 Alex Cunningham (Stockton North) (Lab): I am learning the procedure as I go. Probation trusts across the country are facing severe cuts. Is there capacity within the service—in youth offending teams, for example—to manage the Bill’s aspirations for greater community sentencing, and what are the implications for public and victim safety?
Andrew Neilson: That is one of our concerns. The Government does appear to be looking to make cuts across the board in the criminal justice system. We do not have a problem with cuts that are related to reducing the prison population, but we have to understand that that does put pressure on the community end. The danger if we cut probation as well is that we are setting people up to fail. It is very important that money that is saved from reducing the prison population is reinvested into probation.
Juliet Lyon: It is important to note that, if the Bill succeeds in reducing prison numbers to something like an unavoidable minimum, there is the prospect or possibility of justice reinvestment. That would be something we would welcome. It is a subject that the Justice Committee turned its attention to last year. We would like to see moneys freed up for proper work by probation and youth offending teams. It is a very important question. It is also important to note that youth offending teams have succeeded thus far in working effectively with young people, to the extent that they have succeeded—along with others—in reducing the number of under-18-year-olds in custody by about a third within the last three years. That indicates the prospect for more work of that kind, particularly for 18 to 20-years-olds. We would share your concerns that success will be to do with implementation and adequate resourcing.
Juliet Lyon: We would encourage the Committee to explore that possibility, because the Bill will stand or fall, in our eyes, on whether it succeeds in reducing unnecessary use of imprisonment—obviously not necessary use—and whether it is prepared to work on the basis of reinvestment in other criminal justice agencies.
The last point that I would like to make is that not all the solutions are going to lie within the criminal justice system. There is some provision in the Bill already—for example, the extension of local authority seeing under-18-year-olds as children in care once they enter custody—but there is scope for more opportunities to alert local authorities as to their conjoined responsibilities. That would make a world of difference.
The Chair: This session finishes in 35 minutes. The following people have caught my eye and will go in this order: Elizabeth Truss, Andy Slaughter, Robert Buckland, Dave Watts, Kate Green, Elfyn Llwyd. You know the time; let us try to make sure that everyone gets in.
Q 5 Elizabeth Truss (South West Norfolk) (Con): You talked about reducing costs outside the criminal justice system, but surely there is a lot of cost just in the process of the system? Could you identify any savings that could be made in the National Offender Management Service and its structure and in the cost per prison place, where savings appear to have been made by contracting out prisons? So could you identify savings in the cost per place and the structure of NOMS that could contribute to reinvestment in the justice system?
Frances Crook: I think that small savings could be made by cutting regimes or staff numbers, but in the end that is not really going to make a huge amount of difference. Real savings can be made only by closing institutions and reinvesting that money in community provision and community prevention. We know that, for the majority of people who commit offences, that is a safe and effective way of managing them in the community. That is where the costs have to be diverted and where the better community provision will prevent people from committing future crimes.
Frances Crook: I am not sure that is true. It varies from prison to prison and what kind of establishment you use. The cost in this country for provision for young people, for example, is very high, but you cut it at your peril. If you are going to lock up young people, the cost will be high because they have to be safe. You cannot do incarceration on the cheap, because the consequences are more crime.
Vicki Helyar-Cardwell: The Criminal Justice Alliance would add that the costs of reoffending in this system and the costs of reoffending by people who have come out of custody are extremely high. We have long campaigned for community sentences that actually achieve a lower reoffending rate than often short custodial sentences. There is a significant saving that can be made from that move towards community sentences as opposed to prison sentences.
Juliet Lyon: I simply want to add that Ministry of Justice research shows that community sentences are now outperforming a short prison sentence by at least 7%. That is heartening news, although there is further scope. To answer your point directly, I am very much with colleagues here that if you reduce the £45,000 average cost of a prison place—over £50,000 for women and considerably higher for children—you risk even higher reoffending rates. So it is a very short-term saving for a very long-term cost.
Andrew Neilson: I think also that if you look at contracting out—the recent example is Birmingham, which is a large prison, with 1,500 prisoners and a lot of problems—a succession of inspectorate reports have said that the problems in that prison are around safety and staff-prisoner relationships. These are both things that are related to the amount of staff in a prison—there are not enough. What we have seen is that the private contractor that will now be running that prison is actually cutting staff, so those problems will increase. So there are not just problems with reoffending, but problems in institutions that will be exacerbated potentially.
Q 7 Mr Slaughter: May I go back to finance? What you describe is a virtuous circle whereby the money saved from prison places is invested in community punishments, which in turn may prevent reoffending, which in turn may save money. There are some signs that that has been happening in youth offending, with places being taken out. What I suggest, and I ask you to comment on, is that this Bill is a vicious circle downwards, because the money is simply being taken out of the system. We have cuts of up to 10% in probation services and average cuts of 18% in youth offending teams this year. Do you not think that those services are being set up to fail? New responsibilities are being put on those bodies by the Bill, but they will have many fewer resources to deal with them?
Juliet Lyon: It certainly seems to us that we currently place far too much store on what imprisonment can achieve. Consequently, we welcome the idea that prison would take a disproportionate proportion of the cuts if, and only if, numbers can be reduced. One would certainly not be arguing for fewer staff or less effective institutions. Far from it. But it is true that until a whole institution is closed significant savings cannot be made. It seems to us that the Ministry of Justice should be working towards rationalising the prison estate and, on the basis of a thorough-going review, making clear decisions about how many establishments they need, in what order and where those establishments have to be sited. That is where the savings will come. Without that, it is going to be very piecemeal and difficult to achieve.
Q 8 Mr Slaughter: Perhaps others wish to comment on this as well. Let us say those savings are made and are going to the Treasury. What then happens? There are very high levels of cuts, particularly in youth offending teams; what do you think the consequences will be in terms of rehabilitation on the ability of those services to deal with their current work load or an additional work load? There are no extra resources being put in.
Frances Crook: It will put enormous pressure on local authorities and other people. We would like to see a downward pressure so that resources are diverted to prevention. I would much prefer that the crimes were not committed in the first place rather than trying to pick up the pieces afterwards. At the moment the criminal justice system puts huge resources into cleaning up the mess after, and tends to make it worse rather than better. We want to see a downward pressure in prevention. We have seen that in the youth justice system. Not only are fewer children going into custody, which in itself is good because it is cheaper and better for the kids and the community; but we have also seen a reduction in first-time entrants and arrest rates. We need a downward pressure all the way down. You are absolutely right. The resources cannot just be taken out of one place and put back into the Treasury. What has to happen is that those resources have to be put into the prevention side, into children’s services for example, so that children do not commit the crimes and do not get into trouble in the first place: fewer victims, less crime, fewer people in prison and safer communities.
Vicki Helyar-Cardwell: The Criminal Justice Alliance does not necessarily focus on under-18s but we do have a serious concern as a member of the Transition to Adulthood Alliance about 18 to 20-year-olds, or 18 to 25-year olds, who consume a large proportion of probation resources. One study found that about a third of probation time and resources were spent on that young adult age group. There is a need for investment in that age group and perhaps a national strategy to ensure that we are doing the right thing by older teenagers and young adults. There is an issue about reinvestment.
Q 9 Mr Robert Buckland (South Swindon) (Con): It is indeed a pleasure to serve under your chairmanship, Mr Hollobone. I think we all agree that the lack of opportunity for prisoners to use their term in custody productively has been a real problem. Does the panel welcome the proposed implementation of the Prisoners’ Earnings Act 1996? If so, can it help to shed light on why we have had to wait 15 years for that implementation?
Frances Crook: I have campaigned for work in prisons for 15 years, and I think that long-term, adult male prisoners should have the opportunity to do a day’s work and should be contributing to society by paying tax. The Prisoners’ Earnings Act was promoted by my local Member of Parliament. I told him at the time it was not the right answer to the question and I still do not think it is. I welcome the Government’s commitment to this. It is a fantastic opportunity. We could be showing the world how long-term, adult male prisoners could be contributing—keeping their families, paying some contribution to victims’ charities and doing an honest day’s work for an honest day’s pay—rather than lying idle on their bunk for 20 years at a cost of £2 million to the taxpayer. That is a problem and work in prisons is a solution. However, not only is the Prisoners’ Earnings Act flawed, I think the clauses in this Bill are misguided. It is not necessary to have legislation on this; the powers already exist. In fact, I am in discussion with a prison at the moment about starting a business inside a prison.
Juliet Lyon: We certainly welcome the idea that time should be well spent, rather than wasted, when people are in prison. Too often that is the case; too little happens in prison and a remarkable amount of time is wasted by sheer procedural efforts to keep the institution ticking over and safe.
We have recently done some research with prisoners and their families called “Time is Money” looking at financial exclusion of people both while they are in prison, when debts can continue to mount up, and when they leave and cannot get bank accounts or insurance, or they leave with a discharge grant which cannot possibly last the two weeks after they leave. Alongside the Prisoners’ Earnings Act, and the emphasis on responsible work in prison, we have to think about the ways we sometimes make it impossible for people to take responsibility, either in jail or on release from jail.
The other publication we produced is “Time Well Spent”, where we have done a survey across the prison estate, looking at opportunities for volunteering. This is not instead of work; it is as well as work. We commend to the Committee the work of the Samaritan Listeners and the work of the Toe By Toe organisation and others, where prisoners act as mentors and take a tremendous amount of responsibility for saving lives and helping others.
We would like to see a responsible environment, reserved for serious and violent offenders, where they could engage with staff trained appropriately and supported to encourage that kind of institution. We are very far from that. That is the only caveat I would like to add. Although the Bill is aspirational in this instance, we are a long way from achieving that. Currently, the average wage for a prisoner is between £8 and £10 a week, which is woefully inadequate.
Vicki Helyar-Cardwell: We echo that and welcome the work in prisons agenda, and the contribution to a victims fund. The only concern we want to raise around this issue is subsection (4)(c) of clause 103, which refers to money to be paid to the prisoner
We want confirmation and clarity that on release, the prisoner—an ex-prisoner—would receive the money that they had earned legitimately in prison. It would be unfair to add further conditions on prisoners, but we fully support the work agenda.
Q 10 Mr Buckland: I was very interested in what Frances Crook had to say about the necessity for legislation. As somebody who likes to hesitate before new legislation, I am in sympathy with her. Can the point not be made, however, that in terms of the hypothecation of the earnings, because some of the earnings will be transferred, hopefully, to the victims of crime, some provision has to be made via amendments to the prison rules, which necessitates some legislation in the Bill?
Frances Crook: I think I am the only person who has ever run a real business inside a prison and employed prisoners on a real wage on the same terms and conditions as I was employed, including holiday pay and sick pay. We deducted tax and had a voluntary compact with our prisoner employees to deduct 30% of their net wages and pay that into a victims fund. As a condition of being able to apply to go to a working prison, prisoners would sign up to having a proportion of their wages deducted to go to a fund for victims, which would be a symbolic in lieu of bed and board, because bed and board costs cannot be deducted. It is possible to do that.
The important thing is that prisoners should be employed by outside bodies, not by the Prison Service. This Bill is replicating the flaw that assumes that it is the Prison Service that will be subcontracting the industries from outside businesses and then employing prisoners again. The Prison Service, with the best will in the world, cannot run businesses and they cannot employ people. They failed for 100 years and they will continue failing. We need to get outside businesses employing prisoners inside prisons on real wages, on real businesses, in the real world. That way, you do not need the legislation at all.
The Chair: We have 20 minutes left of our session with you. Your evidence is generating interest, as it always does. We now have six Members lined up to ask questions in the following order: Dave Watts, Kate Green, Elfyn Llwyd, Ben Wallace, Helen Goodman and Damian Hinds. I am going to ask each Member to ask one question and that way I think we will get everyone in. Your answers are very interesting. Please can we keep them crisper and shorter so that we get all your evidence on the record.
Q 11 Mr Watts: You seem to be very much in favour of the Government’s proposals provided that the resources are made available to make them work; the increase in youth offending teams, probation and the workplace element of the proposals. What will the effect be if those resources are not made available and you try to pursue the policy without sufficient resources in youth offending teams, probation and in the work environment?
Andrew Neilson: We have already gone through some of this in earlier answers. There is danger in a reduction in funds for the system. At the same time, we have to ask the question: is the system too large and are we putting too many people, never mind in prison, but on probation, too? There is overcrowding in both systems and it is the reach of the criminal justice system, the fact that it now takes in more people than ever before, and that it costs more than in many other countries, that means that although all our organisations are worried about the balance of cuts, we see scope for a much reduced criminal justice system. That is an important point to make.
That requires bold sentencing reform, some of which may be in this Bill. It might have been bolder, but there is a bigger question about what is the penal system, why do we use it and who do we want in it that we, as a society, really need to ask. This Bill is only the beginning of a debate on that.
Juliet Lyon: Spectacularly, the Bill does not mention women at all, or possibly as a footnote, I gather. This is remarkable, given the work that was done by a number of bodies including, most recently, the Corston review. We firmly believe, and we now have the findings of the Women’s Justice Taskforce to back it up, that the number of women in prison could easily be reduced by the same degree as the number of under 18-year-olds, given the level of vulnerability, the petty, persistent nature of much of the offending and the need to work on addictions, enabling women to get out of debt and so forth.
What has really impressed us, and the members of the Women’s Justice Taskforce, has been a range of schemes outside prison walls, particularly women’s centres, where women can attend, continue to take responsibility for their children and address the particular causes of their offending. They are showing very good results. We think there are solutions, but we regret very much that the Government have not chosen at this stage to indicate that they are prepared to take particular steps in relation to women. We think there is a good case for a national strategy to reduce women’s imprisonment and respond to their particular needs. There is a good case for much improved leadership on this issue, which is indicative of the fact that women have not appeared in the Bill. You will see a set of coherent clauses about youth justice, but nothing about women’s justice. That could be rectified.
Vicki Helyar-Cardwell: We support the need for a national strategy for women and championing that issue at leadership level. In case we do not come on to them, I want to flag up that the bail and remand provisions will have a positive effect on women. At the moment, one third of women offenders remanded into custody do not go on to receive a custodial sentence. That is hugely disproportionate. Often women are carers of children, there is disruption to the family home and to employment and caring responsibilities, so the CJA is supportive of the provisions on bail and remand in the way they will impact on women, for whom they are used far too frequently and with very severe consequences.
Q 13 Mr Llwyd: The Bill requires justices of the peace to decide whether there is “any real prospect” of a custodial sentence being imposed, but at the very beginning of the case when they decide on bail. How do you think the outcome of a case can be predicted right from the very start in that way? Do you believe that the provisions as drafted provide sufficient protection for victims?
Frances Crook: I welcome the proposal and I think it would be very helpful. The Howard League has long argued that there ought to be a provision such that when somebody is found not guilty, or after a period of custodial remand, they should be able to apply for compensation. We are very concerned at the overuse of custodial remands, so anything that can exert pressure to deter that, for a variety of different reasons, we welcome very much.
Juliet Lyon: We welcome the provision in the Bill. We appreciate that it might need strengthening or clarifying, but the reality is that currently more than 50,000 people a year enter prison to serve a period on remand in custody. Of those, more than 11,000 are acquitted and about a half do not go on to a further custodial penalty. I do not think that we can afford a system that is so hugely out of kilter with a fairer, just and proportionate response.
This is a proposal that seems to us to enable the courts to think very hard about why they would need to use custodial remand and not to use it for some of the things that it has been used for in the past. An instance would be remanding people to have a mental health assessment. There are other ways of doing that, and there are other ways of ensuring that people turn up for trial. It is a timely review, in fact way over time, so we would support it in broad terms, appreciating that there may need to be some clarification.
Q 14 Mr Wallace: Let me move on to indeterminate public protection sentences. Could you give us your view, because it is slightly elephant in the room when you are talking about cost and waste. Locking up 6,000 people, 3,500 of whom have already served their tariff and are lolling around in their cells, is a vast waste of money, even if that money could have been used to re-educate them or do something else and be cut from rehabilitation. What is your impression of the IPP policy as it stands now?
Juliet Lyon: We very much support the review of IPP sentences and the proposal to bring the review and findings from that back into the Bill. This is another instance of massive unfairness, and I do not think they are “lolling around in their cells.” We run an advice and information service that responds to about 6,000 prisoners and their families each year. Very many of them are serving an IPP or are concerned about someone serving an IPP. Our experience is that people are chasing courses; that is the best way of putting it. Given that the only way out of the maze for many people is to do an offending behaviour programme, they are trying to transfer from one prison to another, desperately trying to gain a place on a course.
Last week, somebody phoned us who had a 71-day tariff. He has currently served five years and is still asking for advice on where courses might be available or when he might have a parole hearing. This is totally unacceptable. May I give you one other example, because it concentrates the mind? There was a woman who went into Holloway prison on remand. During that time, she set fire to herself and her cell because she wanted to kill herself. When she came to court she was acquitted of the remand charge, the offence for which she had been remanded, but she was given an IPP sentence by the judge because he said that arson was a serious offence and she might well commit that same offence again outside in the community.
We do not know what has happened to her, but the odds are, I fear, that she may well be still serving that period of time in custody. It is Kafkaesque and unfair, and has attracted the disapproval and criticism of almost everyone in the criminal justice system, from judges to the Prison Governors Association and the staff who have to work and manage the system. We would dearly love to see the provision brought under control and disposed of in its current form.
Andrew Neilson: The public do not understand. If it was enacted with the idea of being tough on crime, that these people would never get out—or certainly not without going through many courses and proving that they are safe—it has not worked. We have seen this in high-profile cases, for example Baby P’s mother, who received an IPP sentence. All the media coverage focused on the minimum tariff, so it seemed as if—I cannot
Q 15 Helen Goodman: Mandatory minimum custodial sentences are quite controversial and I would like to ask the witnesses what their impact is, whether they think they are an effective deterrent and in particular, what they think of the late addition to the Bill, the new knife crime provisions proposed by the Government?
Vicki Helyar-Cardwell: We do not think mandatory minimum sentences are the most effective response to knife crime. We obviously wish to see more resources put into preventive services. The Sentencing Council is doing some really useful and important work in clarifying and providing consistency around sentencing, and we would not want to see anything that works against that important work. There seems to be very little evidence about the deterrent impact of mandatory minimum sentences, so we are not in favour. Obviously, that is not to say that knife crime is not an important issue; we just do not think this is the most effective response.
Frances Crook: The Howard League has published some research conducted by a prison governor on young men serving sentences—some of them long sentences—for knife crime. The evidence from the young men themselves was very clear: it is not the sentencing that is the deterrent. Their lives were so chaotic and so violent that they were much more afraid of each other and being knifed, than of carrying a knife or being arrested. Sometimes mandatory minimum sentences constrain judges’ discretion irrelevantly and do not have the desired effect, and in fact can sometimes have unforeseen and contrary effects.
Andrew Neilson: It seems strange to focus on this at a time when knife crime is actually on the decline. We have seen a decrease in offensive weapon possession of 23% between the beginning of 2009 and the beginning of this year.
Q 16 Damian Hinds (East Hampshire) (Con): I would like to come back to Mr Buckland’s line of questioning to Frances Crook about the clauses relating to the Prisoners’ Earnings Act. I think you said that those clauses were not necessary to make further progress in this area, both in relation to work itself and also to victim support contributions and to the opening of a savings account, which would include payroll deduction provisions and contingent access to funds. Are you sure
Frances Crook: Yes, I am sure it is the case that the legislation is not required. We have had lots of conversations with the Prison Service who have been very, very reluctant to introduce the concept of real work. I am very pleased to see that Michael Spurr, the head of the Prison Service, is now indicating that there could be a core day and the restrictive hours that prisoners are allowed to work will be relaxed, so that is very welcome. We do not think that the legislation is very helpful. We want to see outside businesses bringing work back to England that has been offshore. I am very pleased to see, for example, that BT has brought back its call centres. That sort of work could be put into prisons; it could be done competitively inside prisons, which would not take work away from local people, but it has to be run by outside businesses. The central flaw here is that the Prison Service would still be running and employing the prisoners.
Q 17 Damian Hinds: Are you saying that payroll deductions to open a savings account with contingent access to those funds, which at the very least would only be on release, could be done without legislation?
Frances Crook: It is what we did. We helped our employees—our prisoners—to open bank accounts. They then benefited from increased money within the prison economy, so they could buy extra bits and pieces within the prison. Most importantly, they could send money out to their families. At the moment what families have to do is send money in to prisoners; and if the families are on benefits, that is a huge tax on them.
I think the other thing that is missing here is support for families. If a man is earning a real wage in a prison, why should he not be asked to keep his family? At the moment there is a sleight of hand with the Benefits Agency, which means that they are not required to do that. They are not required to support their children or their families, and I think that is a huge mistake.
Q 18 Yvonne Fovargue (Makerfield) (Lab): Social welfare law is being removed from scope at precisely the same time as one of the hugest upheavals in the benefit system, with the introduction of universal credit. What do you believe will be the impact on community cohesion and crime levels?
Juliet Lyon: That is a difficult but good question, given the prison population. We know that they are likely to be the poorest people in our society. I think there is a very important lesson for Government—that if you are going to do criminal justice reform you have to link it up to social welfare provision. You have to think seriously about joining up services, and not having a separate silo for justice.
We think, for example, there is tremendous merit in the roll-out now of the liaison and diversion schemes, which will enable people who are mentally ill and people
That is the point; there are many people in prison because they have been failed by other public services. We would not want a diminution in other public services; and we would like a better joined-up process for those who do need to go to prison—more emphasis on resettlement and on engagement of other public and voluntary services, so that while they are in prison the whole purpose of their time there is to spend it preparing for a responsible life on release. That is the Prison Service mission, but it is difficult to achieve in the current circumstances.
Q 19 Mr Wallace: I would just like clarification from Frances Crook on prisoner earnings. When you said you set up a business, if I heard you right you talked about it being voluntary. It was a voluntary relationship between the prisoners and the Prison Service to deliver that business. Is that correct? There was no compulsion on the prisoners to do it.
Q 20 Mr Wallace: I was not asking about compelling them to work, but about earnings—taking some of their earnings and using them for something else; what if they opposed that? That would be the change in the law that would seem to be required.
Frances Crook: We did it. As a condition of applying for a job with us they had to agree to having 30% of their wages deducted, and we asked them on top of that to make voluntary donations to Victim Support, which they all did. I do not know how much they gave, because it was between them and Victim Support. Victim Support of course benefited from the tax through gift aid as well, and got extra money. We have done that, and I did not see any problem with it.
Andrew Neilson: The key thing is that point; it is about the business and the prisoner making the agreement as a condition of employment. In that sense it is voluntary. We are not forcing them to work. The problem with the Bill is that it focuses on the Prison Service taking the money away, but our model, on which we published a report, called “Business Behind Bars”, which we can make available to the Committee, looks at things from another point of view: prisons themselves can agree with businesses the terms on which the businesses come in; then the businesses find prisoners who are willing to work on those terms.
Q 21 Mr Slaughter: Payment by results is the only way it is suggested new resources will go in. Are you concerned that that is the only way, and it may skew what alternatives to custody may be available?
The Chair: Order. I am sorry to interrupt the hon. Lady. In accordance with the programme motion, which the Committee agreed, that brings us to the end of the time allotted for the Committee to ask questions of our witnesses in the session. Thank you all very much for coming along this morning, giving up your time and giving evidence. We will now hear evidence from the National Association of Probation Officers and the Prison Officers Association.
Mr Slaughter: On a point of order, Mr Hollobone. I note Mr Wallace asked questions about IPPs, which are not in the Bill. Given the constraint we have on time is it permissible to ask about things that are not in the Bill?
The Chair: The hon. Gentleman makes an extremely valid point. There was another question from a Labour Member that was also slightly wide of the mark, but I used my discretion as Chairman to allow both to take place. However, his advice to the Chair is well meant and well put and if we can keep to the terms of the Bill that would maximise the effectiveness of the time deployed.
Mr Wallace: Further to that point of order, Mr Hollobone. On the question that I raised on IPP, first, it is in the sentencing Bill and I appreciate your discretion. Secondly, the witnesses who gave evidence this morning included IPPs when they made submissions to the Green Paper and in public. As it was the final opportunity to ask for their view of an IPP, and as the Government have openly said that measures on IPP may come forward at some stage in the course of the Bill, I thought it was correct to do so.
Examination of Witnesses
The Chair: We will now hear evidence from the National Association of Probation Officers and the Prison Officers Association. For the record, please would you be kind enough to introduce yourselves to the Committee? If either or both of you would like to make a short statement to the Committee, you are invited to do so.
The Chair: May I ask for indications of which Members would like to speak? At the moment I have Helen Goodman, Andy Slaughter, Dave Watts, Yvonne Fovargue, Elfyn Llwyd, Alex Cunningham and Mike Crockart. Going from Opposition to Government, I will take Mike Crockart second, then the running order as I have described. This session ends at 12 o’ clock.
Q 22 Helen Goodman: One of the Government’s main objectives is to increase significantly the number of prisoners who work while in prison. At the moment a minority of prisoners work for around 20 hours a week. The Government’s proposal is to get almost all prisoners working 40 hours a week. It would help the Committee if we understood the implications of that for running the prisons, particularly from Mr Gillan. What sort of staff oversight would this entail? What other investment might be needed? Could he tell us something about the practicalities of this?
Steve Gillan: First, we broadly support the ethos of prisoners working and being trained for when they are released so that they can hold down proper jobs as part of the rehabilitation process. However, when Kenneth Clarke announced it to the Conservative party conference last year, we were taken by surprise by the announcement of a 40-hour week, bearing in mind that the core day had previously been cut.
Steve Gillan: The core day refers to how long prisoners are out during a day and at the weekend. A few years ago, that core day was slashed simply because there was not enough money to go around. The Prison Officers Association was not in favour of that because it actually locked prisoners up for longer. However, we are broadly in support of prisoners coming out to work. We do not think we can get anywhere near 40 hours a week, because, first, there is not the space, and secondly, there are not the resources with the ongoing cuts over the next four or five years.
Steve Gillan: There are different ways of looking at it. You have to look at the detail, but at the moment, there is no detail and that is our problem. For example, prison officers work on average 39 hours a week, so it is ridiculous to consider that prisoners should be working for 40 hours a week when the staff are not going to be there to implement that. That is one of the resource implications that we would have. Of course, prison officer numbers are actually going to fall as prisons are closed, with further market testing on the horizon.
Steve Gillan: Answers to parliamentary questions about prisoners work activity show that, on average, it was about 13.9 hours in 2009-10. Last week I was in Holme House, which has managed to get 100 prisoners working up to 34 hours a week, but that is keeping prisoners out over lunch time. The governor’s worry is that once budget cuts start to kick in over the next three or four years, he will have to cut back again.
Q 26 Mike Crockart (Edinburgh West) (LD): It is a pleasure, Mr Hollobone, to serve under your chairmanship for the first time. My question relates to implementing the Prisoners’ Earnings Act 1996. We have heard evidence
Steve Gillan: It depends what prison you are looking at. Some local prisons are severely overcrowded, and do not have the correct work spaces and workshops that prisoners can go to, to do the work. For example, Holme House is a newish prison, but it has over 1,000 prisoners and only 100 of them were allocated to the workshop doing 34 hours of work. That is a tiny proportion in relation to Holme House. We would have a problem with other aspects of prisoners working and the amount of money involved, and I am happy to elaborate on that later.
Q 27 Mike Crockart: The point that previous witnesses in the evidence session made was that it need not necessarily be the type of work you are talking about—the workshops that are already there. If we are talking about external companies coming in and setting up a business within a prison, then surely it would be up to them to set up the infrastructure to allow those prisoners to do the meaningful work. Is that not a better way forward?
Steve Gillan: That would be a very interesting concept but the reality is there is no meat on the bone at this moment in time, and we do not know what individual companies may be talking about. We are broadly supportive of prisoners working, but it has to be meaningful, constructive and worthwhile, not putting knives and forks in plastic envelopes for airlines, which does not assist at all. Of course, you have to look at the situation with regard to companies that may well be laying people off on the outside and coming into prisons and setting up work forces. I am not sure how the general public would view that.
Q 28 Mike Crockart: You major on the word “meaningful”— that it has to be meaningful work—and then give the example of putting knives and forks together. Plenty of people outside prison are doing that type of work and regard it as meaningful because of what it achieves for them. Surely that is what we are trying to get for the prisoners. That sense of meaningful work is in supporting their families and giving something back to society.
Steve Gillan: I was not demeaning anybody in outside industry. I thought that what we were trying to do was to rehabilitate prisoners so that they did not come back. Unfortunately, for the past 25 years or so we have been playing political football with the issue, and we have not got anywhere. To be honest with you, the real issues are alcohol abuse, drug abuse, mental health issues, education and social exclusion. Until investment is made in those areas, we will just go round in circles.
Q 29 Mr Slaughter: In so far as there will be any new resources for dealing with rehabilitation, and particularly if there will be enhanced community punishments, they will come through payment by results alone. Does that cause you any concerns, and how do you see that working?
Steve Gillan: It does not cause me concern at this moment in time, for the simple reason that we do not know enough about payment by results. The first pilot was started at Peterborough, but we are awaiting the results of those pilots, which are not due out until 2015. To lay all your eggs in one basket, as we have just seen in the market testing process of Doncaster, where it was said that the payment by results ethos was in effect what got them the contract—it has not been measured and we seem to be playing a little bit of fast and loose and a little bit of Russian roulette with the criminal justice system.
Jonathan Ledger: On that point, I agree with Steve. We know very little at the moment, and the signs are that the project in Peterborough will take some time to assess. It seems to be something of a side issue in terms of those working on the ground and those who are dealing with community supervision on a day-to-day basis. At the moment, that has had no impact at all. We are concerned that there are issues about how you measure payment by results, and what you are looking to find out. Are you looking to improve things such as recidivism rates? We would all support that, but the problem is that with some sort of profit motive or financial incentive around it, we fear that the wrong motivation may begin to underpin a payment-by-results system. That is something that we would expect to be rigorously scrutinised.
Q 30 Mr Slaughter: I do not know whether you have had a chance to look at the Civitas report that came out this week. It seemed to say that rehabilitation as it is envisaged in the Bill would not work for repeat offenders, and that not enough consideration could be given. From your own experience—particularly Mr Ledger—do you feel that that is the case?
Q 31 Mr Slaughter: The Civitas report commented on rehabilitation as the Government envisage it at the moment, and stated that Civitas was not persuaded that it would work in the case of persistent repeat offenders. Do you think that more needs to be done to deal with that problem?
Jonathan Ledger: From the NAPO perspective, we have argued consistently—we argued this very strongly in our response to the Green Paper—for an increase in resources for the probation services in order to focus on offenders, particularly those in the category that you have just described, so that we could target the problem behaviour that they were presenting and intervene intensively and frequently at an early stage post sentence. The concern is that something of the revolution has been lost in the resulting Bill—we welcomed much of the original Green Paper—and we fear that there is now less of a focus on how we intervene positively to change lives, to use the old chestnut. That is how we protect communities and reduce the number of victims in our communities. It would be true to say that there has been a shift away from the focus on early intervention and rehabilitation, which may have unfortunate consequences.
Steve Gillan: I have seen that report, and I concur that we have had a big problem with prolific and repeat offenders. Again, I refer to Holme House and some of
Q 32 Mr Watts: We heard earlier from witnesses that they are keen on the strategy and they believe that the resources should be transferred to the community programmes that are an alternative to a prison sentence. Given that you said that you seem to need more space and more resources, what will the impact be if there are cuts in the overall budget, then further cuts from your budgets to pay for improved services in the probation service, drink prevention and all the other things? What practical impact will that have on prisons?
Steve Gillan: That is a very interesting analogy—I do not have all the answers to that. However, in 1993-94 there were approximately 43,000 prisoners and now we have 85,000 prisoners and roughly the same number of prison staff to work with them. Prisoners have doubled but staff have not. We have to get back to multi-agency networks working. There has to be a balance between community-based stuff and prison because the reality is that the general public want to feel safe. Sometimes the general public get forgotten in all this.
Jonathan Ledger: The important point here is that we are complementary services—prison and probation. We should not be set against each other in any way, certainly not in the context of resources and cuts. The key work that prison staff do is essential to the good work that the probation service does when we are dealing with those who have been released. It is vital that you look at this in the round rather than seeing us as competing against each other.
Q 33 Mr Watts: Is it your view that there is no scope for transferring resources away from the Prison Service itself? You would need to have the same resources that are there if you wanted to do things like the Work programme and more work in prisons. It seems to me—I do not know about other members of the Committee—that there is a contradiction here. There seems to be the easy hit. First, the Treasury takes a lump sum out of the system, then we transfer some into preventive services in probation and youth offending and that comes from your budget when you are saying that there is not that scope.
Jonathan Ledger: Yes, it means constantly adjusting the balance and often coming up with the same result, unfortunately. But the resources are interlinked in that sense. We have argued from a NAPO perspective that fewer people should go to prison for short sentences—we
Steve Gillan: I do not think it is right to rob Peter to pay Paul. Everybody clearly does a good job, whether it is probation services, social workers or prison officers. Certainly, I am clear about what my members believe: they are the forgotten service. Resources have been rushed away. There is this rush to privatisation and market testing to make it cheaper. We believe that it will be more dangerous because we do not believe the prison population will drop. In fact, it has increased slightly since last July.
Q 34 Yvonne Fovargue: I should like to move on to the duty to explain sentences. Do you feel that there are some offenders who do not understand the sentences? What resources do you think you need to be able to explain that fully to them?
Steve Gillan: Sentencing has always been very confusing. I do not think the general public understand sentencing that well. For example, my members have to be trained in what the sentencing policies are and what sentencing means. I think it is too complicated, and it needs sorting out rather quickly.
Jonathan Ledger: The probation service has a key role to play here. Recently we have been concerned about what we see as a slight dumbing down in the quality of court reports that can be done for the courts. When I was a practising probation officer, the pre-sentence report was absolutely key to sentences in terms of making a judgment. One of the things you did, through the process of preparing a report, was to explain sentences to those you were working with, so the offenders got the explanation from you of whether it was going to be a custodial sentence or some sort of community sentence.
I do not want to harp on about resources, but the focus on speed and shortening processes is not helping us, because we can explain these things, go through them and prepare people for whatever the outcome of the court appearance is going to be. It is an interesting point that you have made and again we are worried that we are not able to do as good a job as we used to.
Steve Gillan: That is partially correct. I believe that you cannot just look at the Bill in isolation from everything else that is going on with the cuts generally: police budgets have been cut, probation, even voluntary and community services. Inevitably—and there is some evidence out there—we believe that when unemployment goes up, crime will go up. So we do not believe that the prison population will fall as dramatically as anticipated; and, of course, with the U-turn on the discount rate of 50%, there is now a black hole in that budget of £130 million. We are greatly concerned about how that is going to be achieved.
Q 36 Mr Llwyd: Would you support the notion put by some authorities that it is time to have a full audit of everybody currently in prison; to look at those with mental health problems, or drug problems and so on, who are not a danger to society and consider whether they should actually be in prison?
Steve Gillan: Clearly, we believe that some people should not be in prison: the mentally ill and self-harmers all go into that envelope. If there is engagement and a process further down the line that can divert them away, we would fully support that. It would free up the prison population to a manageable degree, so my members can get on with the proactive work that they are paid to do on behalf of society.
Jonathan Ledger: In terms of Mr Llwyd’s question, reflecting on what I said earlier, that is why we are so disappointed in many ways by some of the shifts in the Bill away from the Green Paper that originally prompted it. Certainly the elements that may be added that I know have been discussed by Government, like introducing more mandatory imprisonment for certain types of behaviour and effectively reducing the discretion of the judiciary, are disappointing. They have run the risk of increasing the prison population considerably, meaning that prison staff have to deal with longer-term and disaffected prisoners who are being retained longer.
There is also an impact on the work of the probation service because judicial discretion is very much based on the advice and assessments that we provide. Again, where there is less discretion to be used, there is less opportunity to explore fully the reasons why offending behaviour has taken place and identify in those reasons ways in which you can deal with it and address it in the hope of stopping it in future.
Q 37 Alex Cunningham: Mr Gillan talker earlier of the need not to rob Peter to pay Paul, but what we actually have is both Peter and Paul being robbed to pay the Treasury. Your organisation has campaigned hard against cuts in prison, probation, the youth offending service and others, so is it actually realistic for the Government to have this aspiration for greater community sentences when there is such a cuts environment?
Steve Gillan: There are a couple of ways of answering that. We want to see the prison population fall, but we want to see it fall so that communities are safer and reoffending decreases. I do not see how that can be married up with the budget cuts over the next four or five years in every area and walk of life. I just do not see how that will actually happen and I think, as we have said continually, that the criminal justice system will eventually go into meltdown.
Jonathan Ledger: I think that the probation service is often attacked for not focusing enough on victims. We have always argued with that, because actually the focus has been strong in the probation service for a good part of 20 years now—a significant shift. Yes, you are absolutely right about the dangers that you mentioned, and the cuts and probation staff’s ability to work in the community. We are potentially less able to protect those communities
Jonathan Ledger: There is no getting away from the fact that cuts are bad news for any service. If you believe in the probation service, as I do, you know that it has an impact on criminal behaviour. If the probation service is less able to do its job and is affected by having fewer staff and resources to do so, then that must have some identifiable impacts on criminal behaviour.
Q 40 Mr Wallace: Perhaps one of the ways you could free up some money is that there are 3,400 prisoners who have completed their tariff but are serving indeterminate public protection sentences. We spend roughly £120 million a year on their custody. Would you agree that getting to grips with that backlog and finding them an appropriate setting—whether that is under the aegis of the probation service or not—would perhaps be a good way of finding alternative funding?
Steve Gillan: Certainly the IPP system should be sorted out so that people are getting on the right course and are not just lost in the system. We would welcome suggestions through the Bill process that would adequately address that while at the same time protecting the general public from violent crime.
Jonathan Ledger: The difficulty is that high risk offenders attract a huge amount of media attention, and if we are to work constructively with them in the community, we come back to resources. We need to make sure that everything is in place in terms of staffing and support to ensure that we can do the job properly, to maintain the public’s confidence and ensure that we intervene in a positive way. People being left without the situation being addressed is not good, because essentially they lose an understanding of why they are still in prison. The impact of the sentence is undermined as well.
Q 41 Helen Goodman: Steve Gillan mentioned the importance of multi-agency working, a point also made by Juliet Lyon in the previous evidence session. Do you think we should have a stronger duty to co-operate between the Prison Service and the probation service, and also with other services in the community—local authorities, housing associations, maybe health authorities—so that people do not fall through the cracks?
Steve Gillan: Absolutely. It is essential that you have what I call old school throughcare, so that we track the offender right through to where they are going. If you do not have that, there is nothing worse—and we have seen it time and again—than an offender being released into the community, the same environment that they came from in the first place, only to come back six weeks later. I do not think that that helps the taxpayer or prisons, and we have seen it for the last 25 years. We have had situations where young mothers have left prison with their babies and had nowhere to go. To me that just cannot be a society that we want to accept.
Jonathan Ledger: The partnership commitment is very strong in the probation service. It has been developed over years across the probation service in England and Wales to deal with the sort of issues that Steve raised. In the current climate my anxiety is that a lot of those partnership agencies—voluntary, charitable organisations— are at risk and under threat. They are struggling to maintain the sort of service that they provide. That will certainly be a huge loss to the probation service in its work. Clearly, we cannot do everything, and we need to be able to refer to specialist services and support agencies to do our work in communities.
Q 42 Mr Slaughter: The Bill seems to give quite a lot of new responsibilities to prison officers and the probation service. There are quite complex changes to sentencing, which you will have to understand and explain. You may want to correct us on this, but we have been told that the cuts will mean 10,000 prison officers having to leave over time and up to 10% cuts in probation services this year, by region. Have you experienced that level of cuts before, and what difference do you think that will make to the service that you can provide?
Steve Gillan: No, we have not experienced that level of cuts before. It is completely new to us, and there is a lot of fear among my members, because they want to do a decent job on behalf of the general public. I fear that they will not be able to do that.
The Chair: Order. I am sorry to interrupt, Mr Gillan, but under the terms of the programme motion, I have to bring this particular session to an end. I thank you and Mr Ledger for your time this morning and for giving evidence to the Committee.
Examination of Witnesses
Sally Gimson: Hi, my name is Sally Gimson. I am head of public policy at Victim Support. I think that you know about Victim Support, but I would like to tell you a little bit about us. We are an independent charity for victims and witnesses of crime. We were set up 35 years ago. We cover England and Wales. We are volunteer based with 6,500 volunteers and some 1,600 staff up and down the country. We contact more than 1 million victims a year. We run the witness service, which means that we have volunteers in every criminal court in the country, from the Old Bailey to Newcastle. Since April 2010, we have had a specialist homicide service, so we support almost all families bereaved through homicide. We are also the biggest employer of independent domestic violence advocates in the country, employing about 92 of them. At the moment, we are funded by the victims commissioner for victims service advocates.
We want to say three things. First, we welcome the introduction of the powers to enable money to be deducted from prisoners’ wages to go towards victim support services. We are very supportive of that. Overall,
We are particularly concerned about three things. One is that suspended sentences do not necessarily have a community requirement attached, which means that offenders in serious cases could simply walk free. We know that victims want the offender to be punished. In this case, there would effectively be no punishment. Even in some cases where that was breached, the only sanction would be a fine.
Secondly, we think that the Bill could have done more to make provision for the victims compensation fund. We are happy that there is a duty for the compensation fund, but we are worried that victims will not necessarily get the money and that there is no means to enforce that better than at the moment. The Government have not done that, and it is a missed opportunity, because victims tell us that money comes through from offenders in dribs and drabs. We would like there to be a compensation fund, so that the money is funded up front and so that the fund would get the money from the offenders.
We are also concerned that the Bill does not include a duty to explain sentences to victims. It includes a provision to explain them in ordinary language only to offenders. We recently asked victims what one thing they would change to make the criminal justice system better, and 48% said that they wanted more clarity in sentencing.
Louise Casey: Chairman, I am very grateful for the opportunity to appear before the scrutiny Committee today. I want to take a slightly different approach. The first thing that I would say as the victims commissioner is that we completely understand and are very supportive of the need for the criminal justice system to do a better job in the rehabilitation of criminals and offenders. That is a right and proper thing to happen. I feel that all too often I am under pressure to be a victims commissioner who says, “Don’t spend money on rehabilitating criminals. You should do this and not that.” You get into a world where if you are pro-offender, that means you are anti-victim, and if you are pro-victim, that means you are anti-offender. That is not where this victims commissioner is. I also feel very strongly that the evidence in terms of our Green Paper response is that victims, too, do not want offenders to go on committing further offences and creating more and more victims. I therefore think it is right and proper that the Bill is before the House and enjoying this scrutiny.
The issue is not just the financial cost of what criminals do to us in our society, but the human, personal, emotional and social cost, which I think I highlighted pretty squarely in the report that I delivered to Ministers last week on the needs of families bereaved through murder and manslaughter. I believe it is right that we are rehabilitating criminals and spending time and energy on that. That said, I can say on behalf of, I think, Victim Support and myself that it is a huge step forward that this Committee has asked to hear victims’ voices as part of what you are doing as the Bill proceeds. Given that we know that more than two thirds of the public believe that the criminal justice system respects the rights of perpetrators, offenders and criminals more than the rights of victims, it is really important at every single point when issues about crime, justice and offenders are discussed that we look at what happens with victims—I have the privilege of being the statutory voice of victims.
I am therefore very pleased that we are here today. I am pleased that as we look at elements of the measures—my friend and colleague has mentioned a number of them—we will be looking at them through the eyes of the victim, because the eyes of the victim are also where the wider public are. There is a connection between the two.
We were really pleased with the Government’s response to the Green Paper consultation. There were a couple of elements—particularly the not guilty early credit—that victims and I felt stretched the integrity of the principle of the sentence too far. We were really pleased—in fact, I felt relief—that that was not proceeded with. That showed real willingness by the Government to look at the issue through the eyes of victims, and we were very grateful for that.
My last point—I will keep it brief because I am sure that you want to get on—is that, overall, it is important that all the different elements, whether it is suspended sentences, compensation orders, curfews or whatever, are looked at through the principles that underlie the criminal justice system. What the public and therefore victims want is that, when someone breaks a law, there is a punitive consequence. That is why I support Victim Support’s position. For example, it is the right thing to do, possibly, to give more discretion to judges to suspend sentences for longer. That might be a right and proper place to be; I think that it is probably correct. However, the quid pro quo is that it cannot be the case that it is just seen as two years to keep your nose clean and there is no consequence to it—that is, it is like a bind-over; you are just told to get on with your business for a couple of years and there is no punishment.
In the same way, I am really pleased with the Government’s position on criminals essentially paying back to victims and to society more broadly. That is a very big political principle that I and victims would sign up to. The quid pro quo is that, once it has been put in a Bill and is a reality in the street and in the courts, victims have to know that they will not be strung along—that they will not be given a pound a week from a compensation order and then it will drop off. It is not that the principle of it is wrong; it is just that delivery of it is a really tall order. That is not necessarily about a Bill that goes through Parliament; it is more about the huge pressure that arises as you consider, perhaps rightly, whether to have a downward trend in custodial sentences.
What you have to do, therefore, is make non-custodial sentences much more punitive and much more up front and in the face of the public, so that they can have greater confidence in them. No one in this House should underestimate what a tall order that is. I suppose I may be jumping to when it is happening, and saying “Compo orders don’t always get paid back; how are they going to be?” I was very involved with the changes to community payback and trying to get people to don an orange jacket with the words “Community payback” on the back. Under the last Administration, that was a really tall order to drive through, so I think the delivery of some of these things will be the test of whether the Bill stands or fails.
Louise Casey: My view, and it is not the first time I will have said it, has been for a number of years, ever since I did a review of the public’s view of the criminal justice system, that the probation service would need a significant shift in its culture. It is not necessarily an issue of money and resources—although that might be the case—but it is certainly an issue of culture. I have felt that there is resistance to things like asking people to go and put orange jackets on—the sense of moving people out of charity shops, where they are invisible and they have a pretty easy ride, on to cleaning the streets. That is what you want if you are stopping short of locking someone up on a short-term prison sentence. You need something of equivalent weight. We have struggled to get the probation service to undergo a step change—I think that is the modern word. I still feel that to this day.
Sally Gimson: I think that is right. Victims really want to know that if there will be a community sentence, it will work and that there is some sort of evidence that it will prevent reoffending. Victims tell us that they want punishment, but they also do not want that person to do it again, so there really must be investment in rehabilitation, as the commissioner said, to make sure for victims that it does not happen again.
Q 44 Damian Hinds: Following on from Kate’s questioning, when there are custodial sentences, what polling or other evidence do you have from victims about what they think prisoners should be doing in prison—whether work, rehab or education—and what type of work? Within work, we have talked a lot about making deductions to help to fund Victim Support charities and create a savings gain, but what do you think is an appropriate proportion of prisoner earnings to be deducted to aid Victim Support?
Louise Casey: The Department asked me to consult victims during the Green Paper period, and we carried out a quite thorough consultation. The wholesale support for the word “work” and making prisons places of work was relentless. They are clear that prisons should be places of work. I am of the view—and I would be, as the victims commissioner—that a significant proportion of the money should go towards victim services. I hope that that will be one way to get more money into services for victims, which historically have enjoyed a tiny amount of money from the criminal justice bill—less than 1% to 2% of the entire spend in the criminal justice system goes to victims.
I am ever hopeful that the victim surcharge and prisoners’ earnings will be a significant part of getting better services for victims. That is the quid pro quo. It is right that we should spend rehabilitation money on offenders, as long as we also rehabilitate victims. As my report last week showed, plenty of parents and grandparents must spend their own resources on counselling, therapy and support for children who have been bereaved through murder or manslaughter and other homicide. We need a level playing field, and that is one way we can level it up.
Louise Casey: I am sure you know what I am going to say to that. I don’t need to spend money on a poll to tell you that victims would suggest that prison should be hard, people should be made to work and some of the earnings should go towards services for victims.
Q 46 Mr Watts: We heard this morning from prisoners’ associations about the difficulties of the present bail system and about the court system. From the victims’ point of view, one of the things that I have heard—I would be interested to hear your views—is that many people complain about the repeat offences committed by people on bail. Many complain that, once people are bailed, they fail to turn up for the next court session. What are the views of victims about the proposals, if it seems that we are going to have more of that?
Sally Gimson: We are very concerned about the proposals to restrict the use of pre-trial custody, in particular if there is a risk that the defendant not only might not come back but also might intimidate the victims or witnesses. We do not see enough safeguards in the Bill for victims or witnesses. It simply talks about the defendant possibly needing protection and only about the victims or witnesses in terms of domestic violence. So, yes, we are worried that more defendants could be on bail who might intimidate victims or witnesses and who might not come to trial.
Sally Gimson: Yes, that is absolutely right. Victims need to have reassurance that any people out there are being monitored, will come back to court and will face the consequences. Only 10% of people who report a crime told us that their case went to court. For those people who go to court, it is absolutely essential that it happens and that the defendant is tried.
Q 48 Mr Buckland: I want to look at the proposals to alter the duty on the court to explain the effect of sentence. I do not know whether you would agree with this proposition, but over the past few years, because of the amount of changes, judges have had to undertake some sort of steeplechase to try to explain sentences, which have become more and more enshrined in jargon. Do you now welcome the re-emphasis in the proposed new provisions to explain things in ordinary language? Not only would that assist those in court, but it could assist in translating that message to victims who, very often, will not be there to hear sentence.
Sally Gimson: Absolutely. We think it is very important that that should be explained in ordinary language, but the Bill does not mention victims, so we would like to see them, as well as the defendants, mentioned. Very often, as you say, victims are not in court, and they might not understand—if they are told at all, and they might not be. We talked to a victim who was a victim of assault. She was told that the sentence would be nine months but the person only served four, and she did not really understand why that had happened and felt that all that experience she had gone through in court had been something for nothing and that, in fact, she had been
Louise Casey: This has been something that I have been pushing for since 2008. I am really pleased that it is in the Bill. The fact that judges will have to explain sentences is a step forward. I entirely agree with Sally on this. Explaining a sentence to a defendant—actually he is an offender by this stage because he has been done for it—will entail his lawyer sitting next to him taking it all down and then explaining it to him later. Our problem is that there is nobody on our side who can then explain it to the victim. It would be good if greater care could be given to the victim. However, I do think that this is a very welcome move. In relation to very serious cases, such as murder, manslaughter, rape and possibly child sex offences and violence offences, it would make sense to me, and the evidence shows that it makes sense to a lot of other people, that some of that is delivered in writing. At the moment, high court judges and very senior judges hand out their written sentencing remarks. I can assure Members that that is a really positive move for victims because many of them pore over those for years to come.
May I say a very quick word about bail? There is a real principle at stake here. As the law currently stands, it is about “Will you go and do it again while you are on bail? Are you going to interfere with victims in the way that Sally talked about? Are you already a non-appearer and have you got a real address that we can actually bail you to?” They seem like the right sorts of principles that you would apply to a bail case as opposed to changing the rules slightly and saying, “This is going to be about what your sentence might be were you to be found guilty.” I do not see a case for changing the principles so significantly, though we are enormously grateful, as Ministers and colleagues know, to have at least the safeguard in there on domestic violence, but we would prefer it not to proceed at all.
Louise Casey: I did not mean to be flippant. I am just so conscious of your time. At the moment, when we suspend a sentence there is normally a community requirement attached. It is a very serious thing to hand out a suspended sentence. You are not in fine territory. You are up the tariff. Cleaning the streets for a few hours is one of the sorts of things that should be considered.
Q 51 Helen Goodman: When people breach suspended sentence orders, both of you expressed some doubt about simply imposing a fine. Have you any information on who would benefit from the proposals that the Government are making?
Louise Casey: What I would say is that the sort of scenario that possibly could work is that you suspend a sentence and do a compensation order. If we are so serious about compensation and if that compensation order is breached, are you then saying that your suspended sentence days are over and you are looking at custody? That is the type of thing that would work in terms of being punitive enough to reassure victims and the wider public about compensation orders and suspended sentences. I can see ways in which you could make this work. Saying to judges that they can have two years could be absolutely right, but if we do not put any punishment element into it and leave it to others to decide what that punishment element looks like, it could appear as a consequence-free couple of years, and yet it is further up the tariff in punishment than fining someone. There is an oddness to it around the principle of what you are using suspended sentences for when we know that there are such serious disposals.
Q 53 Elizabeth Truss: I completely agree with your comment earlier that there is an issue about the culture and organisation of resources in the prison and probation service rather than about the pure cost, and we have one of the most expensive justice systems in the world per head. I support the vision of the National Offender Management Service system as it was created, but how can that be put into practice when the Bill is implemented to created a much more seamless prison and probation operation rather than the very different cultures that we have at the moment?
Louise Casey: This is my view, so it was not a subject of the consultation as part of the Green Paper; there is a crossroads in the world of probation. Are we saying to people in probation, “You are there to concentrate on rehabilitation. It is your job to think about how you rehabilitate”? When it comes to doing seriously tough community punishment—for example, Westminster bridge being covered with people in orange jackets, cleaning it regularly—is it the right organisation to have such a responsibility? There are ways, with contracting out reform of the probation service, that it may be possible. I am simply saying that at this point, my experience over a long period of time is that the probation service has not reached that far. It would take a brave and seriously determined reform of the probation service to get it there, so is it time for us to think about whether it is the right organisation to deal with the punishment aspect of community orders?
Q 54 Mr Llwyd: May I go back to what Ms Gimson said about explaining sentences? The duty in the Bill is to use ordinary language, which may be a tall order for some senior judges. I put it to a senior judge in the Select Committee on Justice recently that it would be a
Sally Gimson: I absolutely think that that is the simple answer. It is a good idea, and if the justice system is not there for victims, who are representative of the general public, in a sense, who is it there for? Courts should have a duty to do that.
Q 55 Mr Slaughter: May I turn briefly to parts 1 and 2 of the Bill, which are also about victims, in their own way? They are about the victims of tortfeasors or about people who are trying to get compensation; for example, Criminal Injuries Compensation Authority cases would be removed from the scope of legal aid, and if victims were suing under the new conditional fee arrangement system, there is the possibility that 25% of their damages would go to paying their lawyer’s fees. Have you looked at those, and do you have any concerns about the changes?
Q 56 Mr Slaughter: I think that it would be interesting, particularly on Criminal Injuries Compensation Authority cases no longer being eligible for legal assistance in relation to legal aid, as we understand it
Louise Casey: Mr Slaughter, as a general principle, with the criminal injuries compensation scheme, victims regularly feed back. In the review that we published last week, almost 50% of victims’ families—these are murder and manslaughter cases—said that the complexity, administration and head-banging of the CICA as it stands just adds insult to injury. It sticks in my gullet slightly that we have to pay private lawyers to process some of these claims, because the system is so complicated.
I have again put on record that, if nothing else, the time is right to look at the CICA as an administrative burden on victims, frankly, which is the only way I can describe it. Certainly, when I visit Victim Support colleagues throughout the country, as they kindly allow me to do, a lot of their work is about doing the bloody—I am sorry. I am not allowed to swear at scrutiny Committees, and I am on tape. However, I cannot tell you how frustrating, for victims and their families, the bureaucracy is with the CICA, and the complications that exist with something that should be so straightforward. We end up giving 25% to these people who text you nowadays to ask, “Have you got a claim?” It is not right, and it needs to be stopped.
Sally Gimson: I think I misunderstood the question. I am absolutely with Louise about this. It can take more than two years for thousands of victims to get the money from the CICA, and they have to fill in loads of forms and get repeatedly asked for evidence that goes over a long time.
The Chair: Order. I am sorry to interrupt one of our witnesses. I thank you both for giving your time this morning and giving evidence to the Committee. We now come to the session where we hear evidence from the Magistrates’ Association.
Examination of Witnesses
Q 58 The Chair: I thank our witnesses from the Magistrates Association for coming before us this morning. May I invite you both to introduce yourselves to the Committee? If you would like to make a brief introductory statement, that would be most welcome.
John Thornhill: Good afternoon everybody. I am John Thornhill. I am current chairman of the Magistrates Association for only another four months, I think, John, is it not? I sit in the Liverpool city magistrates court, so it is quite a busy bench and we see a wide range of cases.
I would like to make a brief statement, Mr Chairman, if that is all right. We are delighted to have been invited to come and give evidence to the Committee today. I assure you that we will continue to engage in debates and discussions as the Bill proceeds through the various stages finally to enactment. Many of the proposals in the Bill resonate with our views. Those views reflect our response to the Green Paper, especially on the issues about wider powers to deal with young offenders—John has expertise in youth courts—and to deal with those who breach court orders.
There are three specific areas on which we would like to have further debate and discussion because they raise some concerns for us. As you would expect, one matter is the restriction on remanding in custody pre-trial. Secondly, there is the issue of the wider discretion for out-of-court disposals, given that we have some concerns about their use and the recent chief inspector’s report. A further matter is the repeal of section 154 of the Criminal Justice Act 2003, which would have given magistrates the power to impose 12 months for a single sentence. We know that it was argued that that was introduced in the context of custody plus, but certainly our information is that it was very much a separate entity as a clause within that particular Bill and that it was not tied in with custody plus. We would like to see that clause taken out. We support many of the principles about victims and witnesses that we have heard already today. That is our brief statement, Mr Chairman.
John Thornhill: The issue is very much about allowing judges and the magistrate to retain discretion where it is appropriate. The issue of sentencing is about offence
Q 60 Mr Llwyd: In other words, it is not simply about whether there is a custodial sentence on the horizon; it is to do with, among other things, the possibility of an interference with the judicial process.
John Thornhill: That is exactly the point we are making. As I said, we need to separate the sentence, which is down the line, from the risks posed by the offender. We do not really look at the sentence, but at whether the offender will turn up, interfere with witnesses or commit further offences on bail, particularly if there is a history in their record of so doing, even though the offence itself may not receive a custodial sentence in the end. For us they are two separate issues.
John Fassenfelt: I was a youth court magistrate for many years. It is a necessary weapon in our armoury, particularly for young people who are out of control and may not be sentenced to custody in the end. I see many youngsters who are out of control, in dangerous situations and mixing with an older group that may be involved in drug pushing or prostitution, and to take them away from dangerous situations, it is essential for magistrates’ discretion not to be tied, even though in the end those youngsters may not end up in custody.
John Thornhill: We could perhaps resolve the issue by having more bail hostels available. Very often the magistrate’s hands are tied because the risks posed are such that we have grave concerns about whether they will turn up and so on. However, if we had strong bail hostels where we could remand some offenders, it would certainly help.
Q 61 Mr Watts: Can I ask you about the penalty notices and penalty notices for disorder? Are they an effective way to deal with problem? It seems to me that, first, people with money would be able to pay a quick fine and not be held accountable for the crime or the offence they have committed, and, secondly, on the opposite side, there will be people on such low incomes that the level of payment would be set so low that it would not deter them. Whichever way you look at it, it seems that the Bill will make it even more difficult for people to see justice being done.
John Thornhill: That is the real nub of the issue. You will all know of course that we are required by the 1361 Act to impose appropriate and proportionate fines taking account of the means of the offender to pay. That does not happen with fixed penalty notices or a penalty notice for disorder. That is not to say that we do
From the examples we have seen, we are also concerned that very often the offenders accept the fixed penalty, penalty notice for disorder or caution as the quick and sharp resolution to a situation, which may well be appropriate—we do not want to spend more money than necessary on serious offences—but the offender is sometimes unaware of the consequences further down the line when they seek a CRB check for employment and it suddenly comes up, though they may not have been found guilty in a court.
John Fassenfelt: The education requirements will have to be looked at very closely. We have to be careful of the guidance concerning that. Given that it is up to the discretion of the local chief constable, it could lead to some form of postcode justice. Certainly, the individuals I see in front of me do not have the money to afford education provision.
Q 62 Mr Watts: Is there not a likelihood that the chief constables will want to use the sanctions to avoid so-called bureaucracy and paperwork? You may well have them used for inappropriate offences in future.
John Thornhill: But we accept that there may be a little too much bureaucracy at the moment, and we need to go back to first principles and pare some of it out. What do we actually need in court? Some of it is very simple: a short sharp statement of what happened.
Q 63 Kate Green: I declare an interest as a life member of the Magistrates’ Association. I want to ask about the proposals in the Bill on knife crime, and whether you have any views on the extent to which that might start to limit judicial discretion.
John Fassenfelt: The proposals are welcomed by the association. The difficulty we have is the six-month minimum mandatory provision, although we accept that there is a clause that allows us to change that in the interests of justice. We have to be extremely careful in the application of the clause, so that individuals can carry knives. As the Bill states, people can carry knives as long as they can prove that having a knife in their possession is a necessary part of their work.
John Thornhill: We can certainly appreciate the thinking behind the clause, but it seems to go against the concept of the rest of the Bill, which is about granting discretion to those who have a professional job to do—the judiciary, the Crown Prosecution Service or probation officers. It seems to be out of kilter with the rest of the Bill in that regard.
Q 65 Mike Crockart: We heard from the victims commissioner that there are real concerns about the extension of powers to suspend custodial sentences of up to two years. Do you think that you will use these new powers more, and what effect do you think that would have?
John Thornhill: We have to look at the context. You have talked about suspended sentences plus. If the principle is about rehabilitation as well as punishment, I am often left asking the question what does a suspended sentence do in terms of rehabilitation without some sort of programme attached to it. If an individual has committed an offence that merits a custodial sentence, and for a variety of reasons the bench or the judiciary decide not to impose an immediate custodial sentence but impose a suspended sentence, and if that offender has serious underlying reasons for committing those offences, we are doing nothing about it. It seems to us that we should still have the right to impose attendant programmes on suspended sentences.
We clearly need to look at the research that has taken place over the last five years on the number of requirements imposed on suspended sentences, but it seems to us that we still need the opportunity to say, “Fine, let’s do some rehabilitative work with the offender even though they are on a suspended custodial sentence.”
Q 66 Mike Crockart: Does that indicate that you feel that there is something missing from your toolbox—something that stands between restorative justice in the community and a suspended sentence? Is there something missing?
John Thornhill: I think magistrates would say, “Well, look, give us a bigger toolbox, with a wider range of tools that we can use in specific circumstances.” We are looking towards individualised sentencing. Of course, with every offence and every offender, there cannot be an individual sentence specific to their needs, but if we have a wider range of tools available we can begin to do that more constructively than we can at the moment.
We have discussed restorative justice in detail. We have visited Northern Ireland and spoken to the Restorative Justice Council, and we would like consideration to be given to restorative justice being added to one of the specific requirements that we could include in a community sentence, again to be used in specific circumstances with specific offenders.
John Fassenfelt: I echo John’s comments, particularly at the top end. That is where youth court sentences are slightly out of kilter with adult court sentences. I believe that one of the main reasons why youth court custody rates have gone down is because at the top end, there is an intensive alternative to custody, which is an intensive supervision and surveillance programme, or ISSP. Although that intensive alternative to custody has been piloted in a number of areas in England and Wales, it has not actually been rolled out in all areas. As John said, we need more weapons in our armoury to keep adults, in particular, out of custody.
Q 67 Helen Goodman: I want to come back to what you were saying earlier, Mr Thornhill, about out of court disposals, to see whether I really understood. Were you saying that, particularly with fixed penalties, one problem is that they are not recorded properly and that no proper track is kept of them?
John Thornhill: It is a very difficult point. Often, we see an offender brought to court, and it comes out by accident, sometimes from the offender’s own mouth, that they have had a number of fixed penalty notices or penalty notices for disorder, but there is no record of that for us to take into account. We would like to see some sort of record. We are not looking for complicated records, but it does not seem unreasonable, if we have a police computer that can give us information, for an FPN or PND to be recorded so that the information is available as part of the antecedents of the offender when they appear in court.
John Fassenfelt: For the sake of transparency and of the community, there has to be a record, and it has to be shared with the community in order for the community to gain confidence in some of the out of court disposals when they are used in a proper context.
John Thornhill: Yes. As I have said, justice is public, and some elements of our justice system at the moment are not public. Therefore, the public cannot have confidence in the whole range of sanctions and disposals that are available within the justice system.
John Thornhill: Yes. It gives magistrates the limit of a 12-month sentence for any single offence. One issue that we are all concerned about is finance. Many of the offences that go to the Crown court could be dealt with in magistrates courts. There are a variety of ways of dealing with that, one of which is to look at mode of trial guidelines, while another would be to say that the nature of some offences could be restricted. For instance, at the moment criminal damage under £5,000 is a summary only matter to be dealt with by magistrates, while damage of more than £5,000 is an either way offence. We might look at doing that with something like theft.
We are not at all saying that we should do away with jury trial; that is a right held by the citizens of this country. However, perhaps we need to look at how we could deal with more trials in the magistrates courts. The cost of a magistrates court trial is significantly less than the cost of a Crown court trial. We know the figures: in 80% of all trials for theft in the Crown court, the value involved is under £200. That means that those offenders would be given a sentence that a magistrate could impose. Keeping the 12-month limit would mean that we could deal with more serious examples of some of the offences that we deal with now, but we would still be within the powers.
We know there are concerns that such a move might increase the custodial population, but we have questions about the figures that have been given to us and we would like to pursue those in detail. We would like to see the measure remain in the Act for further debate and discussion. Yes, take out the custody plus elements because we always said that we could not afford custody plus, yet the concept of custody plus is something that we ought to look at. Once the offender has served their prison sentence, they may still need help and support in the community to turn themselves around. Whatever else we do, unless the offender is ready to rehabilitate themselves, we may well be working against them. We need to look at that and provide support.
The same principle applies to suspended sentences. We can put someone on a suspended sentence for two years, and if we do not do anything about it, at the end of two years they may be ready to reoffend, but if we work with them, they may turn themselves around. It is looking at what rehabilitation is about and how we do that. If we have that 12 months, we bring more trials from the Crown courts and deal with more matters in a summary way. That would cut the costs significantly.
John Fassenfelt: I would add to that the victim gain. Victims would not have to wait so long for Crown court trials and, bearing in mind that they deal with serious cases, victims in serious cases would not have to wait so long. With more cases being dealt with in the magistrates court, the backlog in the Crown court would not be so great.
Q 71 Mr Slaughter: You said that you do not believe that withdrawal of the 12 month sentence for a single offence is to do with custody plus and that it was a stand-alone provision. Do you know why it is going to be withdrawn? Do you still not have the power to sentence for 12 months consecutively on different offences?
John Thornhill: We have had figures put to us that that might be the reason, but when we questioned the figures, we noticed that the figures then reduced. The figures included those who elect trial at Crown court, so we have no control over that. They also included what we know is the fact—when the matter goes to trial, the charge is changed. Sometimes a charge is changed from an either way charge to a summary only charge. If we had pursued it further in the magistrates court, we might have got that charge put to us and therefore dealt with it without wasting time and money at the Crown court. It does bear further investigation and I do not think we should repeal that provision until we have further investigated it.
Q 74 Mr Slaughter: Indeed. The issue of remand seems quite a fundamental change to the way that the criminal justice system works. Effectively, a large body of defendants are going to come in front of you and you will, except in exceptional cases, have no ability, irrespective of whatever risks you think there are, to remand them in custody. Are magistrates very concerned about this? Do they see it as a limitation on their authority and discretion?
John Thornhill: There is a concern because, as I said, we have to look at each case on its own merits and each offender on their own merits. If we have a history of an offender who has failed to turn up, and we feel the only way to make sure that offender turns up is to put a restriction on them, be that a restriction by a remand in custody or a restriction in a bail hostel, then again we are saving time and money. If they keep failing to turn up, we keep adjourning with the hope that they will turn up and there is more and more cost. From a financial perspective, we need the opportunity, on occasion, to restrict their movements, either to stop them reoffending or interfering, or to make sure they turn up.
John Fassenfelt: I welcome the Government’s addition in the Bill, away from Breaking the Cycle concerning domestic violence. I draw to the Committee’s attention the fact that we deal with many cases of violence against witnesses that are not in a domestic situation. Under the Bill as currently worded, we would not have the power to remand that person in custody. I had a case a couple of weeks ago where the original offence was an assault by an individual of another individual over money issues. We remanded the individual on conditional bail not to contact or go near the person he had assaulted. A week later he went round and assaulted the person again. Under the new proposed legislation we would not be able to remand in custody, but clearly, in my view, there is a need to protect that witness.
Q 75 Mr Slaughter: There is an extension of fixed penalties. Do you have any concern about the type of offences that fixed penalties will be used for? Secondly, you have talked about public justice. Are you concerned that it will take matters away from judicial bodies and towards administrative bodies? Thirdly, you have talked about a postcode lottery. Is that because you cannot, as you can with magistrate sentencing, make comparisons between different police officers and different police forces?
John Thornhill: The Coroners and Justice Act 2009 contains a section that states that the judiciary must follow sentencing guidelines. We have strong, stringent guidelines. We can go outside those guidelines, if it is in the interest of justice. The guidelines are public and everybody knows what they are for any particular offence, so we are restricted by those guidelines as to how we sentence. At the moment there are no restrictions, and there are very few guidelines for the use of out of court disposals, as they are called. There is a place for out of court disposals, but we would like them to be within stringent guidelines and that certain offences should not be dealt with out of court. We strongly believe that any offence of violence should not be dealt with out of court.
The work the association did two years ago under the Freedom of Information Act showed that there was wide discrepancy across police authorities. At the top, in one police authority 66% of all criminal matters were dealt with outside a court through fixed penalties, penalty notices for disorder and cautions; and at the bottom, one authority dealt with 33% of criminal matters out of court. I am not saying that one or the other is right, but there is significant inconsistency of delivery. We know that a particular chief constable, the chief constable of Wiltshire, has gone on record in front of magistrates as saying that as far as he is concerned, he wants only 20% of all criminal matters ever to be brought to court.
There is inconsistency, and we have grave concerns. A chief inspectors report said that a third of the out of court disposals that they looked at had been imposed inappropriately. In our work, we discovered that 37,000 cautions had been imposed for what was listed as an offence occasioning actual bodily harm. Look that up in our guidelines and you will see that it is at least a high-level community penalty, if not a custodial sentence. We are saying that there is inconsistency of delivery. We need to look at that. There is a place for such sanctions and disposals, and we need a national framework within which they can operate.
Q 76 Mr Slaughter: If we put together the restrictions on sentencing powers, remand powers and out of court disposals—I suppose you could add to that minimum sentences and, possibly, although it is not in the Bill, the attacks on your allowances—how is the magistrate profession feeling now? Profession may be the wrong word. Is there a feeling that there is a cumulative attack on the discretion and ability of magistrates to do their job?
John Thornhill: I was going to use the words “feel got at”, which probably sum it up. Morale is exceedingly low. We are concerned that it always seems to be the magistrates, their powers or the work that they do that are attacked when no one has shown that the work of magistrates is not of a very high standard. All the research on the quality of justice delivered by magistrates courts has been accepted by Ministers in the past, and I know that the two Ministers sitting here support that principle. Why is it that people want to attack magistrates all the time? We are delivering high-quality public justice. Unless you can say that there is sufficient research to counter that, please continue to work with the magistracy.
John Fassenfelt: John is right. Morale is low, but we are an optimistic crowd and we welcome change. We want to be at the forefront of that change, and we want to be involved in change. That is why we welcome the opportunity to speak today.
John Thornhill: We have been around for 650 years, and if John and I have anything to do with it, we will still be around for the next 650 years. I am happy to come back to the Committee to say so. Please work with us.
Q 77 Alex Cunningham: I know we are very short of time, but under the Government’s plans you are being encouraged to impose more community-based sentences. Will the reduction in resources for people who deal with offenders in the community affect your making such decisions? Will it deter you from imposing such sentences? Yes or no would be good, given the time.
John Thornhill: I will be very quick. If we want to ensure that we work with the rehabilitation revolution and make greater use of community sentences, we have to ensure that they are challenging, effective and contain an element of punishment. Things such as the intensive alternatives to custody do.