Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, the amendment would insert a new clause on the subject of awareness of sentencing options. The amendments in this group in my name and that of my noble friend Lord Thomas of Gresford come at the beginning of this very important section of the Bill for which we have been waiting, as has been pointed out, for some considerable time. The proposed new clause would address the crucial issue of ensuring greater awareness of, and confidence in, the local programmes and provision available to magistrates when they make sentencing decisions. It would require that the Lord Chancellor should ensure that a process was established by which each probation trust liaised with its local court to inform it of the programmes that it provided and gave it opportunities to observe them. That would mean conveying the content and range of programmes, the options that were available and, importantly, their quality. It is all about communication, which informs and facilitates the decision-making processes of the court when it is sentencing. Of course, any discussion of individual sentencing decisions would in this context be entirely inappropriate and irrelevant. It is about the generality of provision and provides the statutory basis for effective communication between the magistracy and probation, which is in the interests of both and, of course, of the community. I pay tribute to the Magistrates’ Association, whose chair, and particularly its policy officer Sally Dickinson, have worked with me in framing these amendments. They are wholeheartedly behind the objectives of these proposed new clauses, as indeed is the probation service through the Probation Chiefs Association. I am enormously encouraged by their support, which I hope will convey to the Government just how important those central agencies are in their support. Most importantly, both proposed new clauses directly reflect the central argument of the Government’s Green Paper, which preceded the Bill—that too many people are in prison and that short prison sentences are largely ineffective and counterproductive, as evidenced by the high reoffending rates. Importantly, however, the evidence also shows that robust community-based sentences serve the purposes of justice and a safer society much more effectively because they provide targeted programmes and supervision, which result in greatly lower reoffending rates. The key to the increasing use of these sentences is the combination of understanding and, even more importantly, confidence in what is on offer. I believe that these proposals will be the way to achieve this. The initiative that I chaired for seven years, Rethinking Crime and Punishment, which was funded by the Esmée Fairbairn Foundation—I declare an interest as a trustee—demonstrated this case unequivocally. We set up a series of visits around the country when magistrates and Crown Court judges visited the probation programmes provided in their patch. Not only were they deeply interested in what they saw but their confidence in the programmes was clearly greatly enhanced when they came together after these visits to discuss what they had seen and heard. As a result of this work, it became absolutely clear to me that this level of working together is really important. I can say confidently that this feeling was shared by all the sentencers, including judges. Indeed, in the debriefings after the visits, the common response by many sentencers was very enthusiastic, and the phrase, ““I had no idea it was like that””, was typical. While I was delighted to hear that, it demonstrated to me how little they knew about what alternatives were available to them; it made one wonder just how appropriate, given what was available, their decisions might have been from time to time. That should no longer be the case if we are successful in this amendment. Probation’s role in providing effective alternatives to custody is key to the Government’s strategy of reducing the number of short prison sentences. The probation service is the agency with the closest working relationship with the courts in making this provision. Of course, we must bear in mind some of the shortcomings in that area where work has to be done. Starting from providing the court’s pre-sentence report, the service is the prime provider of alternative programmes, working with offenders ranging from unpaid work to drug and alcohol programmes, domestic violence programmes, hostels and mental health provision, to name but a few. These are the sort of disposals that it can offer. The voluntary sector is of course an important provider and so, increasingly, is the private sector. It is equally important that the visits happen routinely to ensure that magistrates keep up to date. Inevitably, things change and move on over time. Provision develops and people change—it is a busy, evolving scene, and so it should be. Therefore, it is important, too, that regular arrangements are in place. Regular communication and visits also ensure that standards—another important element of giving confidence to sentencers—are sustained and, if necessary, improved to ensure that public as well as sentencers’ confidence is maintained. What is being proposed here does not reinvent the wheel. Liaison committees were originally set up almost 20 years ago as part of the Probation Service Act. They were the vehicles by which the courts and probation service kept in touch. That Act was then repealed by the Criminal Justice and Court Services Act 2000, which removed the statutory basis for these committees, most unfortunately. What we seek here is the restoration of that statutory responsibility to make the arrangements necessary for liaison between probation and magistrates, with an understood programme that has all the necessary back-up built in. This is something that both the probation service and the magistracy seek as the way to ensure that joint working is effective and sustained. A voluntary and informal basis will not do. This may entail simple small details such as magistrates’ petrol costs or bus fares to visit projects. I understand that this issue may be under consideration by Her Majesty’s Courts and Tribunals Service. I wonder whether the Minister could enlighten me on this when he replies because this, too, is a key issue, small though it may seem. Both the probation service and the magistracy have undergone considerable structural changes in the past few years. I have worked closely with them for some time and I emphasise that they, who are the key players, believe that the proposed new clause is the best way forward and is in everyone’s interests, not least those of the wider community. I am very pleased that the advisory guidelines for liaison between these two providers, issued by the senior presiding judge last December, endorse the importance of this liaison. Indeed, the judge’s protocol coincides perfectly with my arguments. The critical purpose of the proposed new clause is to commit both organisations to this mutual working, backed by the statutory requirement to ensure that regular visits do indeed take place within the proper organisational framework. There is still a well of ignorance among the public at large about how courts, sentences and probation work. Public confidence is very important to the development of effective community sentencing. The proposed new clause is a vital step in bringing the magistrates, who also represent the community, and the probation service together in a greater awareness of how they can work ever more closely together, what community sentences are like and what they can achieve. This in turn will help to sustain high standards of delivery of service and underpin our striving for a safer, better society. My second amendment, Amendment 176ZB, develops logically from my first and again concerns sentencing, specifically the use of short prison sentences of less than six months. The amendment originally presumed that Section 174 of the Criminal Justice Act 2003 would be retained. It places a clear, specific duty on the court to give the reasons for and explain the effect of a sentence, including why and when a community sentence is appropriate, or why the threshold for custody has been reached. In Clause 61 of the Bill, which has already been debated, the Government propose the substitution of this section with a revised set of duties that look very detailed and thorough. I hope to be reassured by the Minister that a strong, specific duty remains on sentencers to explain when the threshold for a custodial sentence has been passed and when the offence is so serious that a community sentence cannot be justified, so that the court and the public will understand clearly how and why a particular decision has been arrived at. I fear that the change in Clause 61 could have the potential to weaken the seriousness with which a custodial sentence is considered by the court and, by extension, the community, which I am sure the Government would not welcome. The courts’ attention to these thresholds must not be diluted. The effect of a sentence being properly understood is also very important. Built into the Government’s approach is the presumption that short prison sentences are tougher than community sentences, which in fact is often far from the case. Community sentences can be a great deal more challenging as the offenders are made to face up to their crimes and their problems. By contrast, one has only to think of the phrase describing children in a YOI getting a short prison sentence, for which there is absolutely no supportive input over a short period of time: namely, that they literally sleep through their sentences as they spend most of that time in their cells on their beds. What on earth can that possibly achieve? All the evidence is that short prison sentences are the most ineffective and potentially damaging way of dealing with low-level offending. This was, indeed, implicitly recognised in the Government’s Green Paper—I repeat that it is an enlightened and constructive document—which outlined the need to reduce our unacceptably large prison population. The cost in human, social and financial terms to all of us has simply gone far enough. We must, of course, have punishments for law-breakers and prison has its place, particularly for those violent, dangerous and prolific offenders from whom we need to be protected and for whom prison is appropriate and effective. However, for the majority, particularly for those doing these short sentences, alternatives to custody are less damaging than prison, cheaper to provide, more effective in reducing reoffending and keep society a safer place. It is, as they say, a no-brainer. Punishment must be constructive as well as punitive. It is simply self-defeating and unintelligent to continue to pursue policies which can seriously damage our own interests as well as those of offenders. I am reassured that the Green Paper effectively acknowledges and understands this. I hope that I am not reading too much into it. I hope that by the end of this Bill we can see the legislation in place which will reflect this, along the lines of the legislation already passed in Scotland in May of last year, where there is now a clear presumption against all custodial sentences of three months or less. The purpose of my proposed new clause is to support the Government in their stated aim of reducing the prison population. It focuses specifically on short sentences, not only because of the damage caused by these sentences but because last year the 57 per cent of immediate custodial sentences that were for six months or less had the worst reoffending outcomes. I give noble Lords three quick figures: 67 per cent of those serving under a year, 66 per cent of prolific offenders and 71 per cent of child offenders will all reoffend within a year. My dear—my Lords, that is a lot of reoffending.