My Lords, my Amendment 14, which is very similar in many ways to the amendment moved by the noble Lord, Lord Marks, would help to ensure that the purpose of the new supervision period is primarily rehabilitative by removing custody as a sanction for technical breach of requirements. It would retain the sanctions available to the courts of imposing a fine or a supervision default order imposing either an unpaid work requirement or a curfew requirement. The option of recall to custody for breach of conditions during the licence period is unaffected.
The Prison Reform Trust—it is good to see the noble and learned Lord, Lord Woolf, in his place—has had many tributes paid to it to which I add my own for the invaluable work it does in the whole of this area. It is particularly concerned that, without additional safeguards, the proposals will result in an increase in breach and recall to custody, which will drive up the short sentenced prison population. As the Transforming Rehabilitation consultation acknowledges, many people serving short prison sentences have complex and multiple problems, including homelessness, unemployment, drug and alcohol addictions, mental health needs and learning disabilities. This in turn increases the likelihood of breach and recall to custody if sanctions imposed for non-compliance are too onerous or the period of licence or supervision is too long.
By limiting custody as an option for breach, the amendment should help to reduce the costs of extending statutory supervision to short sentenced prisoners. The risk of breach and recall to custody is acknowledged but not quantified in the impact assessment. It states:
“There will be court costs associated with breaches of this provision and costs of providing sanctions for these breaches. These will include additional pressure on the prison population arising out of offenders being recalled to custody and further electronic monitoring starts. Initial estimates of these costs are of the order of £25 million per year”.
In addition, the impact assessment states:
“There may be an additional burden to the police from extending supervision in the community to offenders released from custodial sentences of less than 12 months, as police time will be needed to deal with offenders who fail to comply with the conditions of supervision. Our initial estimate is that this could cost up to £5 million per year”.
The rise in the number of recalls has been identified by the Ministry of Justice as a key driver of the growth in the prison population over the past two decades. The recall population has grown rapidly since 1993, increasing by more than 55 times. The recall population increased by 5,300 between 1993 and 2012. Growth in the recall population began in 1999, reflecting the change to the law in 1998 which extended executive recall to medium-term sentences—12 months to less than four years.
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There is a significant risk that extending recall to custody as an option for breach of the new supervision requirements for short sentenced prisoners could have
a similar impact on the short sentenced prison population. This would be counterproductive to the rehabilitative aims of the proposal, given the poor record of prison at reducing reoffending, particularly by short sentenced prisoners. Reoffending by offenders sentenced to less than 12 months in prison is estimated to cost the economy up to £10 billion annually and 57.6% of prisoners sentenced to 12 months or less reoffend within one year of release. For those who have served more than 11 previous custodial sentences, the rate of reoffending rises to 68%, which is a horrific figure. By contrast, community sentences for 18 to 24 year olds outperform prison sentences by 12.8 percentage points in reducing reoffending. Even when offenders of all ages are closely matched in terms of criminal history, offence type and other significant characteristics, the performance gap remains a robust 8%.
In the summary of responses to the Transforming Rehabilitation consultation the Government acknowledge that “many” respondents suggested that return to custody should,
“only be available as a final option after other sanctions had failed, rather than an automatic response in every case”.
The Government then state:
“The conditions attached to mandatory supervision will be geared towards rehabilitation rather than punishment, with discretion for providers to identify the activities that should be carried out. We propose to adopt a range of sanctions to address non-compliance with supervision, only recalling offenders to custody as a final measure”.
That is partly reassuring and I was rather more reassured after the meeting we had yesterday on these and other issues. However, despite these assurances, very little provision is made in the proposed legislation to ensure that custody will be imposed as a last resort in response to breach of the supervision requirements. Subsection (4) of new Section 256AC sets out the sanctions available to the court where it is proved to the satisfaction of the court that the offender has, without reasonable excuse, failed to comply with a requirement during the supervision period. These include committal to prison for a period not exceeding 14 days, a fine and a supervision default order imposing either an unpaid work requirement or a curfew requirement. There is nothing in the legislation which guarantees that custody will be imposed only as a final measure. I very much hope that the Minister will be able to reassure us further on these points.