Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, I thank the noble Lord, Lord Bach, for the constructive way in which he has responded. I hope that Part 3 of the Bill can draw on the experience and expertise around this House. I see a number of old friends and familiar faces in this area of policy. I am also grateful to a number of noble Lords for having the chance to discuss these issues in advance of them reaching the Committee. That has been of great help in understanding where they are coming from with their amendments. Before I turn to the amendments, it may assist the Committee if I explain what Clause 61 intends to do. It replaces the current Section 174 of the Criminal Justice Act 2003 with a revised section that simplifies the existing duty to give reasons for, and explain, the sentence. In response to the consultation paper Breaking the Cycle, the judiciary, among others, said that the current statutory requirements are overly prescriptive and have become increasingly complex as additional requirements have been added. As a result, the current legislation is difficult to find and difficult to understand, and in the day-to-day operation of the court can simply become impractical. The Government wanted to address these problems, which is why we created in Clause 61 a replacement Section 174. It has been simplified and shortened and consolidates the various changes made to the section since 2003. In doing so, however, we have retained the important statutory requirement placed on courts to explain the effectiveness of the sentence and, crucially, the duty to state in open court and in ordinary language, in general terms, the court’s reasons for deciding on the sentence. This means that not only the offender but victims, witnesses and the public can see that justice is being done. A balancing act is required here. On the one hand, we need to ensure that courts make very clear why a sentence is being imposed and what the effect of the sentence is. On the other hand, we need to avoid burdening courts with unnecessary and prescriptive provisions that are very often irrelevant in particular cases and which, rather than clarifying the position, simply confuse victims, witnesses and offenders. I turn to the details of the amendments and begin with Amendment 172A in the name of the noble Lord, Lord Ponsonby. I start by saying that I take the point made by the noble and learned Lord, Lord Goldsmith, about greater transparency. He will remember that when he was Attorney-General there was an obligation on victim care units jointly run by the CPS and the police to explain sentences, regardless of whether the case was brought by the CPS or was a private prosecution. The Ministry of Justice has also embarked on a transparency programme, publishing data about the outcomes of court cases. We hope that being able to see the progress and outcome of cases will give people confidence. Our approach to the amendment in the name of the noble Lord, Lord Ponsonby, is that we do not believe that it is necessary. First, we would not want legislation to suggest that a court could simply avoid its own obligation to give reasons for the sentence in open court by delegating this to the prosecution. Secondly, and more importantly, there is already an obligation on witness care units, which are run jointly by the police and the CPS, to inform and explain sentences to victims under the victims’ code. The victims’ code is very clear. Paragraph 6.8 says, "““The joint police/CPS Witness Care Units must explain to victims the meaning and effect of the sentence given to the offender in their case, and respond to any questions the victim may have””." I turn now to Amendment 172B in the name of the noble Baroness, Lady Quin, and Amendment 173 from the noble Lord, Lord Rix. I was grateful for the opportunity to meet the noble Lord in advance of this Committee and to benefit from his expertise and that of Mencap in issues affecting people with learning difficulties. I understand the thinking behind these amendments. My concern, however, is to make this duty on courts as simple and as practical as possible for the million-plus sentencing decisions made each year. I want to avoid the problem of overly prescribing in legislation how courts should go about explaining the reasons for, and the effect of, a sentence. With that in mind, I do not think it is necessary to complicate the wording of the duties in the new Section 174. The use of the phrase ““ordinary language”” is lifted directly from the Criminal Justice Act 2003 and is, by definition, meant to include language that most people can understand. However, I understand the point made by the noble Baroness, Lady Quin, about people’s comprehension of even ordinary language. I heard a programme the other day about training apprentices in Stockport, my old stamping ground, and the difficulties of 16 and 17 year-olds in training who did not understand what ““catalyst”” meant. There are some worrying things in that respect and I am sure that that happens even more in the courts. The current duty requires that the explanation, as a minimum, should be in ordinary language. It does not therefore stop the court going further where required. So I hope the noble Lord will accept that we should retain that minimum standard, which should apply in the vast majority of cases, while allowing discretion to go further if required. I very much appreciate the advice that Mencap provided on the various techniques that could be used to explain a sentence to people with learning difficulties. That will be used in the training of judges and magistrates, and I intend to pass that on to the bodies responsible for that training. Amendment 172C, from my noble friend Lord Dholakia, would reinsert into the revised Section 174 a requirement on a sentencer, when imposing a custodial sentence, to refer back to Section 152 of the Criminal Justice Act 2003. That is one of the requirements that the simplified version of Section 174 has removed because we believe that it is unnecessary and complicates the duty on sentencers. The revised duty to give reasons simplifies the provision, but it does not mean that a sentencer does not have to say why they have imposed a custodial sentence. That duty remains. On Amendment 174, in the name of the noble Lord, Lord Ramsbotham, I understand where the noble Lord comes from, particularly about rehabilitation. I share his enthusiasm for rehabilitation. Unless we successfully build rehabilitation into our criminal justice system, we condemn ourselves to an ever-upward lift in prison population, a prison population that will be warehoused and that will leave us with the problems of reoffending and no improvement in the situation. Certainly we must build rehabilitation into the policy. However, for many people punishment, public protection or reparation will be important, so we do not think it helpful to pick out one purpose of sentencing for special attention when explaining a sentence. Some sentences will not have a particularly strong rehabilitative element: for example, a fine for a minor traffic offence. Therefore, while I recognise the intention behind the amendment, it is not necessary. Amendment 177 would place a duty on a public body imposing requirements in community orders to take all reasonable steps to explain the terms of the requirements to the offender. I understand the intent of the amendment, but again I question whether it is necessary. Any offender sentenced to a community order will have the effect of the sentence explained by the court. The explanation will include what can happen if they do not comply with the order. The legal representative of the offender is also likely to explain the implications of the sentence. Finally, the probation service will always explain at the outset what the sentence is and what is required by the offender. I went recently to observe Isleworth Crown Court for a day. One case that came up was that of a young man with learning difficulties. I was massively impressed by the care taken by the judge to make sure that the young man fully understood what was happening to him, why it was happening and what would happen next. Many concerns expressed today have much more to do with judicial training and the training of staff, and building awareness of this into the system. The comprehension issue and making sure that people with learning difficulties are not left behind are very much part of what we are trying to do. Where we disagree with part of the House is on whether all this should be written into a Bill. I will mention briefly the other amendments that relate to later clauses on youth remand, prison work and conditional cautions. Again, we believe that they are unnecessary. Youth court judges, prison officers, probation staff and the police are well versed and trained to deal with a range of offenders. Amendments 178ZA and 178ZB concern youth remand. Every court that deals with a child or young person who is brought before it has a duty not only to have regard to the principal aim of the youth justice system, which is to prevent offending or reoffending by a person under 18, but to have regard to the welfare of the child. These duties must include a duty for the court to explain its decisions not just in ordinary language but in language that can be understood by the young person. Amendments 183, 184 and 185 cover cautions. It is as crucial to the integrity and fairness of out-of-court justice as it is to sentencing that individuals fully understand the meaning and implications of receiving a caution. Operational guidelines rather than legislation are the right place for such safeguards. A constable cautioning an offender who is accompanied by an appropriate adult because they need support to understand or communicate will also explain the effect to the appropriate adult. On that basis, again, we do not consider the amendment necessary. Finally, Amendments 181 and 182 concern prison work. Existing guidelines already contain sufficient safeguards to ensure that the needs of prisoners with disabilities are met. The Prison Service instruction Ensuring Equality makes it clear that all managers and staff must ensure that efforts are made to identify whether a prisoner has a mental or physical problem of any form. Governors must consider what prisoners within a range of disabilities might reasonably need, and must ensure that reasonable adjustments are made for disabled prisoners. I cannot accept any of these amendments. However, I can say that the debate was useful. As I said, I can make no promises, but I will look at the points raised in this debate to see whether there are any parts of the concerns on which we can give satisfaction, either by the statements I make from this Box, in guidance and training to the various authorities within the criminal justice system or even by amendment. On those terms, I hope the noble Lord will agree to withdraw his amendment.