Legal Aid, Sentencing and Punishment of Offenders Bill

My Lords, Clauses 67 and 75 refer to the maximum extension of curfews from 12 hours to 16, and from a maximum period of six months to 12, the first of the two referring to adults and the second to children and young people. I have a particular concern over Clause 75, which refers to children, although there are issues common to both it and Clause 67, which, as I have just said, refers to adults. The background to this is that curfews are one of the requirements of a community order where the offender is required to remain at a specified place for a specified period and is monitored by a tag that is administered by one of two private companies. The MoJ estimates that about 24,000 people are being electronically monitored at any one time, of whom it is estimated that—this is all I can say at this point—a significant proportion are children. The application of a curfew can be used selectively by magistrates, who have the power to split the times across the day—for example, when children are coming out of school—or to prohibit an offender from a football match, from being out in the evenings or from being with a group of troublemaking friends. It therefore gives the court the opportunity to use the sanction in a selective and targeted way. As such, we support the current curfews as having a useful role in the armoury of the available sanctions, particularly for adults. The official reason for these clauses and the extension of hours and months is to increase significantly the punitive element of the sanction, supposedly giving the public a sense of greater security and safety, and in the expectation that this would not restrict employment unduly. All of that I find unconvincing, particularly, as I said earlier, as punishment must also have a positive purpose. The new propositions leave many questions unanswered about the need and whether any real added value is entailed that would justify such a draconian change or the potential difficulties or damage likely to be encountered on the way, and whether there is any evidence of how it is likely to reduce reoffending. A curfew is sometimes described as a form of house arrest. The new provision could in theory allow a person on a curfew to leave home for up to only eight hours a day for a whole year. Does that sound possible or proportionate? I think not. We need to know more before such potentially draconian measures are adopted. Without such evidence, I urge the Minister to delete these clauses from the Bill. Proportionality is part of our system of law. It is fundamental that we do not tinker with our criminal justice system simply to be more punitive or tough for its own sake. The Government argue that a more punitive order would serve as a suitable disposal as an alternative to custody for more serious offenders, but the Ministry of Justice has not yet produced any evidence that such a disproportionate sanction—a year-long sanction—would work, what offences it might be relevant for or whether magistrates would in fact use a longer curfew as part of a community sentence for those offenders whom they could currently sentence to custody. It is much more probable that, over time, the timescales of 12 hours and six months could slide up to 16 hours and 12 months, but either way the case has simply not been made. For adults, this is likely significantly to disrupt employment opportunities or caring responsibilities, and for those with drug and alcohol issues, maintaining treatment or support will become seriously more difficult. These are the people affected by Clause 65. I turn to Clause 75, an identical clause that applies to children. As with adults, one of the problems is that comprehensive data on curfews are not available. However, a piece of work published by the Prison Reform Trust called Into the Breach—this might have been relevant to our earlier discussions—which looked at the enforcement of statutory orders in the youth justice system, found that in one YOT 23 per cent of orders were breached and the proportion for breach of curfews was 70 per cent. That was just one sample, but breach is the clearest evidence of whether any sanction has been succeeding, so it is important. I understand that there are some unpublished data from an electronic monitoring provider showing that from a sample of 3,902 children fewer than 50 per cent completed their curfew without breaching and, of those who breached, three-quarters had been absent from the address that they were tagged to. Also, the longer the length of the curfew, the higher the breach—thus a curfew of up to 14 days had a compliance rate of 62 per cent, but that fell to 23 per cent for a curfew of 90 days or more. This seems to be enough to suggest that much more comprehensive evidence is needed before decisions are taken to extend a sanction that we know so little about. What we know already is that children who get caught up in the criminal justice system are those who are already dealing with a range of deficits in their lives. Their home lives are often chaotic and their performance and attendance at school is often poor, many being excluded or at risk of exclusion and finding learning problematic. Gang life in these situations becomes more likely, while drugs and drink are available. Those children who are in hostels or some sort of independent living will find a curfew particularly difficult with no support at home. Unsurprisingly, we know that where parents are actively involved in helping, children are more likely to succeed. That might mean keeping notes about meetings, getting the children up in the morning or having their friends over when they cannot go out. The problem with curfews is that, while they remain a useful short-term sanction for the courts, they are really difficult for children whose lives are already so difficult at home, when the reason they are on the streets in the first place is to avoid home. Equally tragic is when children who are in care on a voluntary accommodated order try to visit their own home and are breached because the address for their tag is the children’s home. What an irony. Curfews do not address difficulties such as why the children have offended or, more importantly, how to help them to stop. Curfews control their movements, but there is no automatic, external support along with the tag to comply with the curfew, or any proactive involvement from youth offending teams. This is a proposal which sets them up to fail—nothing more and nothing less. In accepting it, we would be failing our children. The evidence demonstrates that while curfews are a useful way of using a community-based sanction in the selective and targeted way that magistrates do at present—which is, anyway, more relevant to adults but carries the same caveats—it would be a serious mistake to increase the length of time and number of hours without the benefit of much more comprehensive evidence of the success or failure, advantages or damage, of the proposed timescales and the extent to which they can possibly achieve the key target, which we all seek—the reduction of reoffending, not breach or failure, which is the more possible outcome of these proposals. As they stand, the clauses could theoretically mean that a child would have to be at home for 16 hours a day for a whole year. That is hardly proportionate, nor, I suggest, rational. If there is little expectation that such provisions will really be used, they should not be in the Bill in the first place. For children and adults alike, the likelihood that such sanctions will create rather than solve problems and inevitably be unsustainable is inescapable, thereby making breach, reoffending and the whole cycle ratchet up as we set the bar impossibly high. I say to my noble friend the Minister that as the evidence is lacking—in particular, where children are concerned, the risk of further failure is very real—will she seriously consider deleting Clauses 67 and 75 from the Bill?