I am reliably informed that the noble Lord might have to quit, and I fully understand that; I know how reliable east coast trains are.
This issue raised by the noble Lords, Lord Hylton and Lord Judd, and by my noble friend Lady Hamwee is serious. I sometimes think that we are too ready to leap on the idea that the cold and uncaring state is not concerned about these matters. Sometimes some of these cases arise because an accused person has not informed anybody of children or dependants at home, and it is difficult in those circumstances to deal with
matters. Courts already have a duty to take account of mitigating factors in every case, including the fact that an offender has primary care for children or other dependants. It is important that the presence of dependants is brought to the court’s attention, but the duty proposed in this amendment will not and could not force convicted offenders to tell the court about the existence of dependants.
The case law in this area makes it clear that a judge must perform a balancing act when making a sentence, weighing up the welfare of the child against other factors, such as the length of sentence and the necessary limitation on the offender’s rights by reason of their imprisonment. Where necessary, the court must obtain information on the consequences of the sentences on any children. It is important, therefore, that the existence of dependants is brought to the court’s attention. There will, however, be cases where the seriousness of offending is such that despite the existence of dependants a custodial sentence is necessary. I can also say that the changes in the women’s estate which I recently announced will try to make sure that women who are in prison and with family responsibilities are as close to home as the estate allows.
I appreciate that both noble Lords, Lord Ramsbotham and Lord Touhig, come to this from a deep concern. What they are proposing would place a duty on a criminal court following a decision to sentence an offender to immediate custody or to remand a defendant in custody to ascertain what arrangements had been made for the care of any child or dependant. I completely understand the sentiment behind the amendment. It is right that we should be concerned for the welfare of the children and dependants of those who are about to be deprived of their liberty. I am also aware of the Families Left Behind campaign from the Prison Advice and Care Trust—PACT—which also represents the views of a number of children’s charity and penal reform groups. Indeed, a number of noble Lords, including the noble Lord, Lord Touhig, and the right reverend Prelate the Bishop of Lichfield, referred to this campaign in the Second Reading debate.
I have now seen a very helpful letter from Bronwen Fitzpatrick of PACT that explains in more detail the context of this amendment. Let me say at the outset that I do not disagree with the sentiment behind the amendment. I do, however, have real concern about the details and the practicalities of what is proposed. I will mention these concerns briefly without going into too much technical detail. I should also say that I would be happy to meet Bronwen Fitzpatrick, as she asks in her letter to me. PACT has already met the Children’s Minister Ed Timpson, but I would be equally happy to see Bronwen Fitzpatrick with the noble Lord, Lord Touhig, if that would help.
6.30 pm
One particular concern is the duty this amendment places on a criminal court, dealing with serious crime, to take on what is essentially a non-criminal function. The criminal court should take account of a number of relevant factors, including any responsibility the offender has for dependants, but it cannot be the responsibility of our criminal courts to address all
the issues that flow from the offender’s conviction and custodial sentence. It is simply not realistic for the criminal courts to step in and manage an offender’s life after they have been convicted. I am also concerned that, under the noble Lord’s amendment, the proposed duty on the court comes at the end of the court process. At that point the offender has already been convicted and has been sentenced to a custodial term. The effect of a custodial term on dependants is a factor which should have been taken into account in considering the sentence to impose, not as an afterthought once the sentence has been decided on. In deciding on an appropriate sentence the court is required to consider, first and foremost, the seriousness of the offence. It will also consider personal mitigating factors relevant to the offender, which can include the impact of a sentence on dependants.
The impact that caring responsibilities may have on the type or severity of a sentence has been clarified over the years by decisions of the Court of Appeal. In short, it is long established that the courts can, and in certain circumstances must, consider the potential impact of a sentence on dependants and, if they do not where it is relevant, this could give rise to an appeal against sentence. The judge or magistrates, in deciding on sentence, should therefore already know about any dependants and have taken them into account. The pre-sentence report, prepared for the court by the probation service, should set out the background circumstances of the offender, including any family connections or caring responsibilities. I do not believe that our reforms will change that. The legal representative of the offender can raise any such caring responsibilities with the court, often as part of a plea in mitigation.
The Children Act 2004 already requires interagency co-operation to safeguard and promote the well-being of the child. Probation staff working in court or preparing pre-sentence reports already have a responsibility to consider the impact of custody on an offender’s children. If there is a likelihood of custody, children’s services will be alerted to ensure arrangements are in place to safeguard the well-being of children. This brings me to a crucial point. In order for agencies to promote the well-being of children, or for courts to take into account the impact that a custodial sentence would have on dependants, they must know about them. In the case studies provided by PACT, it is striking that the offender has often not disclosed to probation, any other authorities or even to their own legal representative that they have dependants. It is often not until they are in prison that this fact emerges. This amendment would not, however, address that situation. It would not force an offender to disclose to the court that they had dependants; it may well have the opposite effect. Judges or a bench of magistrates can be seen as intimidating authority figures. If they are quizzing a defendant about children in the context of calling in social services, that may, in fact, reinforce the offender’s mistaken desire to keep their dependants secret. It is simply impractical for a court to satisfy itself in every case involving custody of the adequacy of arrangements for care of dependants, especially if the offender does not disclose they have dependants. It is also unclear as to what duty the criminal court
would have should the care arrangements be unclear, and how, if at all, this should impact on the sentencing or remand decision.
It is for those practical reasons that the Government cannot accept this amendment. However, we believe that the issue should be addressed and we are willing to look at ways to do so. For example, I recognise that often, although not always, offenders who are primary carers are likely to be women. Last month, as I have said, we set out new approaches to managing female offenders. We are developing the custodial estate so that women can stay closer to home and maintain links with their families. Under our Transforming Rehabilitation reforms, all women’s prisons are to become resettlement prisons. This means that female prisoners will serve their sentences as close to home as possible and, most importantly, as close to their children as possible—maintaining vital links that will help them to break the pernicious cycle of reoffending.
It is important that we raise awareness of the importance of identifying the presence of dependants as soon as possible. We also have to convince defendants that ultimately it is misguided to hide the existence of dependants. I will certainly look at the point made by the noble Lord, Lord Hylton, about the inconsistency of courts exercising their responsibility to try to find out these facts. As I have indicated, I pay tribute to the work of PACT along with the senior judiciary to ensure that posters and information are available in courts to bring that message to the attention of defendants, the legal profession and the judiciary. If, as has been suggested, there is a problem, I am happy to discuss it with representatives of PACT, the court services and the senior judiciary to see how we can refresh these efforts to ensure that maximum coverage and publicity is given to the need to disclose these facts as much as possible. I would suggest that that is likely to be far more effective than a statutory provision, which I fear would not have the effect that is intended.
By putting some of the practicalities before the Committee, I hope that the noble Lord, Lord Touhig, will accept that we understand that there are issues. Not all of them lie at the door of the courts or of an uncaring state; they are often to do with the chaotic lives of some of the people who come before our courts. However, if we can hold a meeting with PACT and have further discussions, we will be able to see how we can take this problem forward. With that, I hope that the noble Lord will agree to withdraw his amendment.