My Lords, it may assist the Committee if I say a few words about the shape of this afternoon’s debate. A large number of amendments are down. The noble Lord, Lord Ramsbotham, has given notice of his intention to oppose the Question that Clause 23 stand part of the Bill. I shall also oppose Clause 23 because the whole aim of this process is now to replace Clause 23 with the outcome of the Government’s consultation that allows this debate today.
I see the proceedings today and on 13 November as running in this way. Today, we will have, to all intents and purposes, the kind of Second Reading debate that we would have had if this work had been in its proper place when we reached Clause 23. It has been agreed through usual channels to recommit the provisions of the community sentencing and deferred prosecution agreements so that we can effectively debate them in two stages; first, today’s Second Reading-style debate and, secondly, a Committee-style debate on 13 November, when noble Lords will be able put down appropriate amendments. Today, Second Reading rules apply. For good order, I shall move separately the two blocks of amendments, those referring to community sentencing and those to deferred prosecution agreements. Our first debate will be on the community sentencing proposals. When that debate is complete, I will close that debate until 13 November and then make some opening remarks on the deferred prosecution arrangements, which will allow another Second Reading-type debate. I hope that that is clear to noble Lords and will allow us a good, well informed debate on both sets of proposals.
The amendments will strengthen the community sentencing framework to ensure that non-custodial sentences provide robust punishment, are effective in reducing reoffending and give a better deal for victims. The amendments give effect to a number of proposals in the Punishment and Reform: Effective Community Sentences consultation that the Government published in March of this year. As noble Lords will be aware, non-custodial sentences make up the great majority of sentences imposed by our courts. In 2011, fines and community orders made up around 80% of the sentences handed down by the courts. Given those numbers, it is
clearly vital that sentences served in the community punish offenders, prevent further offending and repair the harm caused to victims and communities.
Our current community sentences framework delivers some of those purposes better than others. For example, community orders can be effective at tackling the causes of reoffending. The reoffending rate for adults subject to court orders in the 12 months ending September 2010 was 34%. The reoffending rate has fallen by 3.9 percentage points since 2000. Although there is still further to go, these figures are evidence of the hard work and dedication of all of those who work with offenders within probation and other organisations.
However, at present, community orders do not always inspire public confidence. Some community orders do not contain an element that the public would consider punitive, demanding or restrictive. For example, in 2011, around 10% of community orders contained only a supervision requirement, while the percentage of successfully completed orders is still low. The Government are determined to increase public confidence that community orders provide a proper sanction for criminal behaviour. Only in this way can community sentences be effective at tackling the causes of offending while reassuring victims and communities that justice has been done.
There is also scope for community orders to do much more to provide reparation to individual victims and communities affected by crime. It is true that around one-third of all requirements commenced with the probation service are community payback. In 2011 around 50,000 community orders had a compensation order imposed alongside them. But while some community orders already engage victims and offenders in restorative activities, the Government believe that there should be much greater use of restorative justice across the community sentencing framework and beyond.
Before I go into the detail of these amendments, it may assist the Committee if I summarise the responses to our consultation. We received just under 250 responses from a wide range of criminal justice professionals, representative groups, private and third-sector organisations and others. Practitioners have been clear that we need to trust their professional judgment and expertise, and that in doing so it is vital we retain the flexibility of the community order framework. They have also been clear that a one-size-fits-all approach to reforming community orders will not work.
The feedback has been critical in refining and reshaping our proposals. As a result, we have decided not to take forward some proposals. For example, we received a wide range of views on our original proposal for a centrally mandated intensive community punishment order but a common theme was the need to shape intensive orders around local needs. Changes to community orders under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 will give courts new and strengthened requirements to impose on offenders and will increase their flexibility to tailor rehabilitative requirements to offenders’ needs. These changes should provide the courts with more flexible and robust community order requirements that can be combined in creative ways to provide a sentence that delivers intensive punishment but is tailored to local circumstances.
Similarly, the Government have listened to the views of respondents on our original proposal for a fixed penalty for certain breaches of community orders and on giving offender managers the power to impose them. Instead, we have considered alternative means of making the breach process swifter and more immediate for offenders. For example, a significant cause of adjournment of breach hearings is that the defendant is not present. We propose to do further work with the courts, judiciary and probation service to explore improvements in operational procedures for dealing with breaches.
Turning to the detail of our amendments, the core provisions are to be found in the new schedule to be inserted by Amendment 155EZA. Part 1 of the new schedule flows out of our original consultation proposal to require all community orders to include at least one specified punitive element. The Government continue to believe that community orders must represent a clear sanction for criminal behaviour. However, we have listened to the views of respondents who argued that what is punitive for one offender may not be punitive for another and that the courts are best placed to determine what is an appropriate punishment. Part 1 will therefore require courts to impose an element that fulfils the purpose of punishment as part of every community order. That element can either be a requirement of a community order or a fine. The fact that a community order includes a punitive element does not mean that it may not also include a requirement or requirements that are rehabilitative.
In response to the feedback we have received, the duty does not specify what requirements courts should impose. However, based on comments from sentencers and other practitioners on what they generally consider to be a punitive requirement, a punitive element might generally include a restriction of liberty that represents a recognisable sanction to the public, such as a curfew, exclusion or community payback. Many community order requirements are capable of delivering both punishment and rehabilitation at the same time.
The Government have also borne in mind that there may be a minority of offenders for whom a requirement that fulfils the purpose of punishment is not appropriate. The duty therefore provides for an exemption where there are exceptional circumstances that would make it unjust to impose a punitive element. We received a wide range of views from practitioners on cases in which a punitive element might not be appropriate. Ultimately, what constitutes an exceptional case can relate only to the circumstances of each individual case, and the Government believe that that is properly a matter for the courts.
Part 2 of the new schedule amends the courts’ existing powers to defer sentencing in order for a victim and offender to take part in restorative activities. As noble Lords will be aware, restorative justice can have a positive impact on both victim satisfaction and reoffending. The Government believe that access to restorative justice should be available for all victims at all stages of the justice process, so that, where appropriate, they can opt-in at a time that is right for them. For some victims, that may happen immediately
after an incident occurs, while other victims may want to participate in a restorative justice process post-sentencing.
We have noted in particular the significant support that consultation respondents expressed for increasing the use of restorative justice between conviction and sentence and the potential benefits that that could have for both victims and offenders. New Section 1ZA of the Powers of Criminal Courts (Sentencing) Act 2000, as inserted by Paragraph 5 of the new schedule, therefore makes it clear that courts can defer sentences until a restorative activity has taken place, if that is the course of action that both the victim and the offender choose.
This amendment is an integral part of the Government’s wider work on developing a cross-criminal justice system framework for restorative justice. The framework will seek to ensure that there is a coherent vision of how restorative justice should apply across all stages of the justice process, including how we build local capacity within available funding and how we ensure a consistently high quality of delivery through accreditation and training standards.
Part 3 of the new schedule removes the current £5,000 cap on a single compensation order that applies in the magistrates’ courts for adult offenders. The Government are committed to ensuring that as many victims as possible receive financial compensation from their offender. This change will give magistrates greater flexibility to impose appropriate levels of compensation in cases where significant harm may have been involved; for example, in environmental offences or criminal damage offences.
Part 4 of the new schedule amends courts’ powers to use technology to monitor offenders electronically as part of a community order. Current legislation already allows electronic monitoring technology to be used to monitor compliance with any other requirements imposed by the court as part of a community order. The vast majority of electronic monitoring is currently delivered by way of radio frequency technology. This technology has proven to be robust and reliable and an accurate way of monitoring an offender’s compliance with their curfew requirement. However, its capability is in practice limited to monitoring whether the offender is present at a specified address during specified times. The Government want to harness recent developments in technology to make greater use of location monitoring technologies, such as GPS, for offenders serving community orders. The National Offender Management Service is currently recompeting its contracts for providing electronic monitoring, which will include this new technology.
In addition to using location monitoring technology to enforce existing community order requirements, the Government propose to give the courts power to track offenders for the purposes of deterring crime, public protection and crime detection. The Government are clear that implementation of the new provision will be subject to the relevant technology being affordable and fit for purpose and to appropriate safeguards for its use being in place. Among other things, the Secretary of State will be under a duty to publish a code of
practice setting out the appropriate tests and safeguards for the use, retention and sharing of any collected data.
Part 5 of the new schedule amends courts’ powers to order offenders to provide a statement of their financial circumstances before imposing a financial penalty or dealing with default in payment to make it clear that such a statement may include details of all their assets. Our consultation set out our aspiration to make greater use of asset seizure across the justice system. We consulted on the idea of creating a stand alone sentencing power to seize offenders’ assets as a punishment in its own right. Many respondents felt that in practice such a power could be difficult to impose and enforce. However, some respondents suggested that greater weight might be placed on offenders’ assets when fixing financial penalties.
Courts are already required to have regard to offenders’ financial circumstances when fixing fines, compensation orders and other types of financial order. In many cases, information about offenders’ earnings and outgoings will be sufficient for courts to set a proportionate and equitable penalty. However, the Government wish to ensure that, in cases where offenders may be cash-poor but have items of property that are more valuable, courts can, if appropriate, take account of this when fixing the value of a financial penalty.
Part 6 creates new powers for Her Majesty’s Courts and Tribunals Service to access data from Her Majesty’s Revenue and Customs and the Department for Work and Pensions to ensure that, when setting the level of a fine or compensation order, the courts have accurate information about an offender’s income or state benefits. This will ensure that fines are set at the appropriate level—not too low if they have a well paid job and not too high if they rely on state benefits.
With the addition to the Bill of these substantive provisions on community and other non-custodial sentencing, I am happy, as I said, to join the noble Lord, Lord Ramsbotham, in opposing the Question that Clause 23 should stand part of the Bill. I believe that these amendments will build on the strength of our current community sentencing framework to ensure that such sentences strike the right balance between punishment, rehabilitation and reparation when they are effectively enforced. I commend the amendments to the Committee. I beg to move.
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