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Legal Aid, Sentencing and Punishment of Offenders Bill

Volume 735: debated on Tuesday 7 February 2012

Committee (8th Day) (Continued)

Amendment 176ZZA

Moved by

176ZZA: After Clause 61, insert the following new Clause—

“Sentencing where there is aggravation related to transgender identity

(1) The Criminal Justice Act 2003 is amended as follows.

(2) Section 146 (increase in sentence for aggravation related to disability or sexual orientation) is amended as follows.

(3) In the heading, for “or sexual orientation” substitute “, sexual orientation or transgender identity”.

(4) In subsection (2)(a)—

(a) after sub-paragraph (i) omit “or”;(b) at the end insert—“(iii) the victim being (or being presumed to be) transgender, or”.(5) In subsection (2)(b)—

(a) after sub-paragraph (i) omit “or”;(b) at the end insert “, or(iii) by hostility towards persons who are transgender.”(6) After subsection (5) insert—

“(6) In this section references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment.”

(7) Schedule 21 (determination of minimum term in relation to mandatory life sentence) is amended as follows.

(8) For paragraph 3 substitute—

“3 For the purposes of this Schedule—

(a) an offence is aggravated by sexual orientation if it is committed in circumstances mentioned in section 146(2)(a)(i) or (b)(i);(b) an offence is aggravated by disability if it is committed in circumstances mentioned in section 146(2)(a)(ii) or (b)(ii);(c) an offence is aggravated by transgender identity if it is committed in circumstances mentioned in section 146(2)(a)(iii) or (b)(iii).”(9) In paragraph 5(2)(g) (30 year starting point), after “aggravated by sexual orientation” insert “, disability or transgender identity”.

(10) Section 241 of the Armed Forces Act 2006 (increase in sentence for aggravation related to disability or sexual orientation) is amended as follows.

(11) In the heading, for “or sexual orientation” substitute “, sexual orientation or transgender identity”.

(12) In subsection (2)(a)—

(a) after sub-paragraph (i) omit “or”;(b) at the end insert— “(iii) the victim being (or being presumed to be) transgender, or”.(13) In subsection (2)(b)—

(a) after sub-paragraph (i) omit “or”;(b) at the end insert “, or(iii) by hostility towards persons who are transgender.”(14) After subsection (5) insert—

“(6) In this section references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment.””

My Lords, Amendment 176ZZA deals with hate crime. Hate crime is abhorrent and the criminal justice system should be seen to treat it severely. We want to ensure that offenders should be in no doubt that they will face more serious penalties for this type of crime. The effect of this government amendment is to add “transgender identity” to Section 146 of the Criminal Justice Act 2003, which provides for the sentence to be aggravated where the offender demonstrates hostility towards the victim on the basis of a specified personal characteristic. Currently, Section 146 applies to hostility based on the victim’s,

“sexual orientation (or presumed sexual orientation) … or … disability (or presumed disability)”.

Section 145 makes similar provision in relation to hostility based on the victim’s race or religion. In addition, the amendment adds references to transgender identity and disability to paragraph 5 of Schedule 21, so that murders aggravated on the basis of hostility towards the victim on those grounds will attract a 30-year starting point.

The amendments are straightforward but I should be clear that “transgender” is an umbrella term that includes, but is not restricted to, being transsexual. It will be for the courts to determine in individual cases whether or not the words or behaviour of the offender constitute hostility based on the victim’s transgender identity or presumed transgender identity.

The Government consider that all five monitored strands of hate crime should be treated equally under these particular provisions. This sends a strong message and should, I hope, give more confidence to victims in reporting these dreadful crimes. I beg to move.

My Lords, some of the saddest cases that I found in prisons when I was inspecting them were of people suffering from gender dysphoria, who were hoping to be able to change their gender while in prison. This imposed great difficulties on the prisons in which these people were because the facilities were not there to cope with them while they were going through that change. At the same time they faced considerable hostility; indeed, the hate crime that is mentioned in this amendment applies also to the attitude that other prisoners use towards these people in prison. If this is enacted as part of the Bill, will adjustments be made to prison regulations to allow action to be taken against those who show such hatred towards people suffering from gender dysphoria while in prison?

My Lords, it took the good Lord seven days to create heaven and earth and it has taken the noble Lord only a day longer in Committee to come up with something on which I can offer him the Opposition’s wholehearted congratulations. We are very pleased with the amendments, which cover two points: the alignment of the starting point of sentencing to cut across all the categories; and the inclusion of transgender people in the scope of the Bill.

Yesterday’s Guardian was a disturbing edition, showing that at the moment disabled people generally are being singled out for victimisation in society as a whole. I hope very much that the signal that today’s amendment gives will help to counter that disgraceful and worrying development. I congratulate the Minister again on bringing forward the amendments.

My Lords, to respond to the noble Lord, Lord Ramsbotham, I cannot imagine that actions such as he described are not already covered by prison regulations, but I will examine that and write on the matter.

Amendment 176ZZA agreed.

Amendment 176A had been withdrawn from the Marshalled List.

Amendment 176ZAA (in substitution for Amendment 176ZA)

Moved by

176ZAA: After Clause 61, insert the following new Clause—

“Awareness of sentencing options

The Lord Chancellor must make arrangements to ensure that each Probation Trust provides to all magistrates in the area for which it has responsibility—(a) information about all programmes and options for which it is responsible, and(b) opportunities to observe such programmes.”

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.

You are my dear. I have my hero here, so I can say that. I had better go on before I make any more silly mistakes.

In fact, the average sentence from the magistrates’ courts is a brief and unconstructive 2.5 months, which came as a surprise to me. I ought to mention that in the Crown Courts the number of all those sentenced to immediate custody went up by 20 per cent last year, which was the highest for 11 years. The killer series of facts is that the National Audit Office estimated that the overall cost to the economy of reoffending by former short-sentence prisoners was between £7 billion and £10 billion in 2007-08; that while prisoners were actually in prison, it cost us an average of £39,500 per prisoner per year; and, amazingly, that the Crown Court process of imposing a prison sentence cost an additional £30,500. Imprisonment and subsequent reoffending comes at an enormous cost.

Here I must thank the Prison Reform Trust for publishing its Bromley Briefings Prison Factfile, which is a gold-mine of statistical information and the source of my figures—when I can get them straight. By contrast, court-ordered community sentences have been demonstrated by countless projects and schemes to be more effective in reducing offending by eight percentage points overall, but with many more really dramatic and successful outcomes all over the country. For example, an assessment of the prolific and other priority offender programme showed a 62 per cent reduction in reconviction rates after 17 months. I refer noble Lords to the booklet published by the Howard League for Penal Reform outlining the work and achievements of community-based programmes, including award-winning ones, the length and breadth of the country—all of which show equally impressive outcomes.

The Government have already invested in payment by results to reduce reoffending, and Social Finance is investing in social impact bonds to finance a programme in Peterborough prison that is in its early days. Such programmes have been generated, are happening and are growing all the time. We must buy into them.

What sentencers can see and learn when they visit programmes is that for many—probably most—people on a community order this is a much more challenging experience than a few months or weeks in prison. Programmes dealing with domestic violence, drug and alcohol addiction or mental health difficulties, to name but a few, require the person to face up to these issues—a really difficult thing to do—in ways that they will never be able to in prison because such programmes are simply not available to the short-term prisoner, but this is the way that people change their lives.

The proposed new clause in Amendment 176ZB requires that sentencers, when imposing sentences of six months or less, must state in open court why a prison sentence is more appropriate than a community sentence and draw where the threshold comes, so that people can understand what is going on and why the custody threshold has been reached. This, by implication, requires knowledge of the range of available options in the community, so that there is no doubt that the disposal is appropriate and just, and the decision can be clearly explained to the defendant.

There is a jingle in the sentencing business—that it is a roof, a relationship and a job that anyone needs as preconditions when coming out of prison, if they are to have a chance of staying out. Of course, those are the preconditions for most of us if we are to have happy and fulfilled lives. At a stroke, imprisonment can take that all away, making reoffending all too likely and condemning the family to a parallel sentence of its own. Community penalties mean that the three preconditions can stay in place and something constructive can come out of the experience for the offender, the family and the community. The court must explain why, in the light of all the evidence, the decision has been made and where the threshold comes, and give the options available to it. Justice will then have been done. I beg to move.

My Lords, I am very glad to have been able to add my name to these amendments, and would like to say how much I admire the work of the noble Baroness. It is not simply the utterly sensible amendments that she brings to our deliberations, but all the work she does to follow up what she is arguing for in this House. Of course, that is a two-way process, because it also means that when we listen to her, we listen not just to the voice of theory but to the voice of experience and practical engagement. That is a special asset to have in our deliberations.

Punishment is the easy bit. Of course crime must be punished—there is no argument about that—but in a sane society in which reason prevails, the greater challenge is how lives are rebuilt and how, as I said in argument on a previous amendment, we can enable people to become positive citizens contributing to the well-being of society, as distinct from indulging in delinquent behaviour. That is the real challenge. If that is to be done well, it means that those individuals have to be looked at as individuals.

I remember talking to a chief superintendent of police who was just about to retire when I was president of the YMCA and he was a prominent and active member of the YMCA in Britain. It was a private conversation, so I hope that he will not mind my relaying what he said. He said: “You know, it is a very lonely moment when you are sentenced. Some people respond with more bravado, but the overwhelming majority at that moment feel very lonely. I have always felt that where we get it wrong in our penal policy is that that is the very moment when someone should be there at the elbow of the person concerned saying, ‘Isn’t this a terrible mess? How are we going to sort it out and try to make some sense of this situation?’”.

What the noble Baroness said was not only emotionally powerful—there is no harm in emotion of the kind she was displaying in her remarks today; it is very healthy, and the passion which she feels for these issues is a great challenge to us all—but so important. So many of the people with whom the penal system is dealing have not had proper relationships, have not had people who cared, have not had families able to cope with or relate to them in their situation. There is a desperate need, as I have said in other debates in this House, for someone to take the hand of the person concerned and walk with them through the experience back into full rehabilitation in society, back into the job to which the noble Baroness referred, which is so central.

If that is the case, if we are asking magistrates and others to function on our behalf to tackle those issues, it is imperative that we do everything we can to ensure that magistrates know of all the possibilities which can be considered for the individual in front of them. To have a limited range of possibilities, or not to be very much aware of the range of possibilities, is disastrous because it means that we are not taking seriously the issue of rehabilitation.

On the issue of short sentences, I remember on a visit to a prison—in fact, it has happened more than once in conversation with prison officers—the prison officers themselves saying what nonsense it was and asking: “What on earth are we expected to achieve with these young people? How on earth is this helping them? They are going through a more disruptive experience. They are being taken further away from society and the chance to start rebuilding their lives in detention. What are we doing? What are we expected to be administering on behalf of society?”. If it is a matter to be dealt with by some by awarding a short sentence, there must be other means available which are more constructive and intelligent.

I conclude what I want to say in support of the noble Baroness by repeating something which has been said in debates before but which it is not possible to repeat too often. On the door of every cell should be “Rehabilitation?”—with a question mark after it—because, if we are not achieving rehabilitation, what are we doing? We are losing an individual, and we are almost inevitably ensuring future costs for society not only in terms of reoffending but in terms of the cost of dealing with the consequences of that reoffending, with further spells in prison or whatever. I believe that in the whole culture of our penal system and in the culture of the professions that administer our penal system there should be a passionate commitment to achieving at all costs, wherever possible, the rehabilitation of offenders. That is why these amendments tabled by the noble Baroness are so right. They make economic and social sense, and I hope that they also make sense when we think about what the values of a decent and civilised society should be. I hope that we care about the individual.

This morning in my old constituency of Portsmouth, where Dickens was born, I attended a ceremony to mark his 200th birthday. During the service in the great St Mary’s Church in Portsmouth, which was part of the ceremony, I was startled to hear a piece by Dickens himself on the application of Christian values. I had not read it before, to my shame, but I commend it to Members of this House. With his social commitment and understanding, and his brilliance in setting out the issues with which society is confronted, as well as its responsibilities to put them right, Dickens speaks directly about the whole principle that, if we call ourselves Christians, we must commit ourselves to caring not simply for the victim—although of course the victim matters—but for the offender, with a commitment to enabling the offender to sort out his or her life.

My Lords, I, too, have added my name to the amendments tabled by the noble Baroness, Lady Linklater. At the outset, I echo the tributes paid to her by the noble Lord, Lord Judd, and at the same time I pay tribute to the noble Lord for the passion and compassion that he always brings to debates on these subjects.

On Amendment 176ZAA, I have long thought that the provision of sentences with prospectuses of what the prison and probation services can and cannot do for offenders would serve a very useful purpose for the whole of the management system, and therefore I should like to widen the amendment slightly to include the Prison Service. While the noble Baroness was speaking, I could not help reflecting that for the first 100 years of its existence the probation service worked very closely with the courts and the police. It is only in recent years that it has been made subordinate to prisons, and that, to my mind, has given the wrong emphasis.

Everything that the noble Baroness said about Rethinking Crime and Punishment I share, because I had the great privilege of being a member of the initiative’s steering group. I entirely endorse everything that she said about the place of the community sentence. However, perhaps I may refer to the prospectuses. First and most obviously, they tell sentencers what is or is not possible and how long that might take to be achieved, because there is no point in somebody embarking on a course which cannot be completed during the sentence.

Of course, there is a danger that, as a result, some sentencers might award sentences that are longer than normal in order to complete a behaviour programme. I believe that that is a fault in the right direction, not least because the present practice of awarding sentences that are too short for the completion of any meaningful remedial action is wasteful of both time and money. As a side-effect, the provision of such a practice might also encourage the adoption of what happens in some Scandinavian countries where, at the time of sentence, the sentencer lays down what course of programmes a prisoner has to complete during that sentence. If these are satisfactorily completed before the end of the period of the sentence, the governor of the prison can take the prisoner back to the sentencer and ask for earlier release on the grounds that the conditions laid down have been met. Prisoners can then be released on licence, which saves prison time, space and money.

The second side-effect would be to force the prison and probation services to cost and plan all their offending behaviour and other courses. Knowing how many courses and programmes are required to meet the need of sentencers would for the first time give some indication of the actual shortfall in the current provision. What is more, it would allow individual prisons to be made responsible for conducting certain courses in particular geographical areas rather than the current inefficient system in which individual governors are not bound to carry on from where their predecessors left off—remarkably, and expensively, they are left to decide how they will satisfy particular targets and performance indicators, which may have no relation to overall need and involve the cancellation of programmes initiated by their predecessors. In other words, knowing what has to be done and by when would at last allow some certainty and stability to be applied to the role of each and every prison. I do not want to say more, or to say more about short sentences, except to echo everything that the noble Baroness said. The figures prove how much cheaper community sentences are.

Actually, there is another side-effect because if it was accepted that community sentences were to be the norm—the default position—and the short sentence the opposite, improvements on the provision of the community sentence would be forced, in order to give the public confidence that that is worth while. That links with Amendment 176A because I believe that the prospectus of what can be done in those community sentences is just as important as what is done in custody.

It is with great diffidence that I seek to say a few words as almost everything that can be said on this subject has been said by the three very distinguished noble Lords who preceded me. This is ground that has been well trodden. I fear that the importance of the two amendments may not be appreciated for that reason and that it will be said, “Oh yes, we all know everything contained in the amendments and therefore we can do without them”. Perhaps I can rely on my experience in a different capacity to enable me to say that such an approach would be wrong.

For five years, at least, it was my responsibility to try and oversee the sentencing in the courts of England and Wales. We all knew that our sentencing was not working as well as it should. We were distracted from time to time by arguments about whether prison worked but that really was not the issue. The issue was: were we imposing sentences that would most likely result in the offender who was before the court not reoffending but instead, as a result of his previous offending and being brought before the court, setting himself or herself on a new road to live as a law-abiding member of the community? Every time that could be achieved—it was not easy to achieve—the community would receive protection that it would not otherwise receive. Every time that that was done, the public would be less in danger than if the course that was adopted was achieved.

That is particularly true in that difficult ground which lies between sentences that can properly take place in the community and those that cannot. There is a very simple way of approaching this. What every court that has to impose sentences involving deprivation of liberty should do is to impose a sentence that is no longer than it has to be. If it has to be a sentence of custody, then it should be as short as is appropriate. In the case of short sentences, any sentencer should have well in mind the real restrictions on what can be done by the Prison Service for those who are sentenced to a short sentence. In the great majority of cases, the position is clear: nothing positive can be achieved by a short sentence, other than to mark the nature of the offence. Magistrates and judges are faced again and again with a situation where they have tried to avoid sending an offender to custody, but his or her conduct has shown that the alternatives are just ignored. Then, with reluctance, the sentencer can, and should, in my judgment, impose, as a final resort, a sentence of imprisonment, as long as the sentencer bears in mind the need to keep that sentence as short as possible. Those are a minority of cases. They are not the cases that make up the statistics to which the noble Baroness, Lady Linklater, referred. They cannot account for that number of people being given sentences that cannot achieve anything positive as the final deterrent.

I tried, and other senior judges tried, to inculcate within the magistrates and the judiciary the importance of keeping the number of prisoners serving short sentences to the minimum. I am bound to say that I never succeeded. Having listened to the speeches made in the course of this short debate, I think it would be marvellous if copies of Hansard containing them could be placed before each judge and magistrate. I am not going to suggest a further amendment to achieve that, but I want to underline that even though it is so well known that the effectiveness of short sentences is so limited, and even though it is so well known that the resources that are spent on short sentences are needed for community sentences, it does not happen. That means that these amendments could just make a difference. For that reason alone, I hope the Government will consider the amendments most seriously. I think it is appropriate to adopt them.

Perhaps I might ask the noble and learned Lord, Lord Woolf, a question. Does he agree that the villain of the piece is the sensationalist writing—if you can actually call it writing—in some of the populist press about penal matters? Does he also agree that we ignore at our cost the reality that even judges—if I may say so, with respect—are human beings, that magistrates living in the community are very much human beings, and that unfortunately there is a degree of intimidation to the effect that if they do what they believe is right in the circumstances they may be pilloried in a way that is going to be unpleasant for them and their families? Is it not time that we all got together and started confronting that element of the media and saying, “You are the very people who are exacerbating the issue of crime and misconduct in society by playing for short-term gains and completely misrepresenting the reality”?

I would be bold beyond my own abilities to be bold if I were to try to attribute responsibility between the various players in our society as a whole. I think that we all contribute to the present situation. Judges cannot hide behind the media; magistrates cannot hide behind the media; and I certainly would not have sought to shirk the responsibilities I had by hiding behind the media. Nothing would please me more than if the media could learn the wise lesson that the noble Lord, Lord Judd, was suggesting that they should learn.

The noble Lord is absolutely correct. Sentencing is a lonely business. When you are put under considerable pressure in trying to determine the right sentence, you try to put out of your mind what you read daily in the media, but sometimes it is a very difficult thing to do. But it can just make the difference that I have said is so important between taking the decision of imposing a short sentence and taking the much more sensible course of imposing a positive sentence—one of the sentences that the noble Baroness, Lady Linklater, wants the courts to be aware of—which can so much better be imposed of service in the community.

My Lords, I had not intended to intervene in this debate but it has been so important that I felt that I really had to.

Some noble Lords may know that I sit as a magistrate so it is with some trepidation that I follow the noble and learned Lord. I sit as a very junior magistrate in central London and I sit on a probation liaison committee. That committee is of huge importance, both to me personally and to all my colleagues. Of course, we become aware of the sentencing options. It is a training event that happens regularly—it happens every Thursday as well as more substantial training events—and I and my colleagues regard it as extremely helpful to be brought up to date on a continuous basis with all the community sentence courses that are available.

I very much support the first amendment of the noble Baroness, Lady Linklater. It is of huge importance. It is particularly important that it is on a statutory basis because that will recognise the importance of that work in giving magistrates confidence in the community sentences so they can go ahead and issue them. That is an absolutely central point, about which I can talk from my own experience.

I also take the point made by the noble Lord, Lord Ramsbotham, about programmes sometimes being too long to fit in with the length of the community sentence. I have come across this issue several times. One needs to have a real faith and trust in the probation reports that one is given in order to come up, if you like, with the minimum time realistically to achieve the elements within those sentences. Again, that comes down to a question of professional trust between the different elements in any court.

Even though I agree with the general views on minimum sentences, I am rather less enthusiastic about the noble Baroness’s second amendment which concerns them. In my experience, some 90 to 95 per cent of the short-term sentences that I have given have been for people who have broken their community orders. I understand that that is not an attractive argument but that is the reality of my sentencing experience here in London. Of course we constantly look at the alternatives. No one wants to give short-term custodial sentences. I understand that they are very often ineffective, but the reality is that very often the people to whom one gives those sentences have already failed on their community orders.

My Lords, does the noble Lord not think that the amendment clearly covers that case? It allows a short sentence to be imposed when there is no other appropriate way of dealing with the offender. If you have imposed a sentence and the offender has not complied with it, surely that is a classic example of a situation where there is no other appropriate method of dealing with the offender. I say that with diffidence because I appreciate how difficult it is for magistrates to deal with the sort of offender the noble Lord has just described.

The noble and learned Lord, Lord Woolf, is of course correct. Magistrates already give their reasons and say why it is so serious that only a custodial sentence will do. I was really addressing the speech made by the noble Baroness, a substantial part of which was against short sentences per se. I understand that the amendment does not make that point, but, because of her speech, I felt duty bound to point out that the reality is that we are very often sentencing for breaches of community orders. Nevertheless, this is an important debate and I am happy to support both amendments.

My Lords, I defer to the huge wisdom and practical experience of all noble Lords who have spoken in this debate. In particular, I congratulate the noble Baroness, Lady Linklater, on the clarity with which she developed her arguments in respect of both amendments. Like her, I am indebted to the Prison Reform Trust for its briefing. I should say that I am a member of an advisory group on young offenders that is run by the Prison Reform Trust.

On the first amendment, clearly it would be helpful to everyone involved in the system for the maximum degree of information to be available to those who are charged with the responsibility of sentencing—and in so doing, to take advantage of the work of the Local Crime: Community Sentence initiative which is run by the Magistrates’ Association and the Probation Association and has been endorsed by the Lord Chief Justice. This is in part to assist magistrates in coming to their decisions, but also in part to ensure that the public are aware that community penalties can be and often are an effective alternative to imprisonment. But there is a feeling that, perhaps due to pressures on the probation service in particular, there has been a reduction in the degree to which the two are working together and communicating effectively in practice. It is no easy task to deal with the volume of cases that come before the courts, either from the standpoint of the probation service or, indeed, from that of the magistracy and those who provide advice to magistrates. This amendment certainly offers an opportunity to develop what has been good practice and ensure that it is spread more widely.

On the second amendment, my noble friend Lord Ponsonby touched on an interesting area, which is the degree to which short sentences are used to deal with breaches of community orders and the like. It could be argued that custodial sentences are sometimes imposed too readily in such cases, but in any event, as the noble and learned Lord, Lord Woolf, implied, they are potentially a discrete category and one could well see them falling within the qualification which, as the noble and learned Lord reminded us, is part of the provision. It is interesting to note that the former chair of the Public Accounts Committee, Mr Edward Leigh—who I think would be the first to say that he could not be counted among the most liberal-minded of politicians—in talking about short prison terms, observed:

“They served little purpose over and above taking the offenders in question out of the community for a short time …The uncomfortable truth is that they are not working, studying or doing almost anything constructive with their time. Indeed, half of then them spend all day, every day sitting in their cells”.

That is true of more than those serving short sentences in prison. Whatever else happens as we develop our penal system, it is clearly necessary to do more than simply confine people if they are to be rehabilitated and, indeed, to constructively pay their debt to society. So whether it is a shorter sentence or a longer sentence, support and guidance needs to be provided as well as retribution, along with support once people leave prison. That is not always available, in many cases even for people serving longer sentences than a couple of months. It is a matter which has to be addressed.

If I have one other reservation about the amendment it is that, paradoxically, it might push magistrates in the wrong direction from the point of view of the mover of the amendment. They might feel that rather than being obliged to give reasons for imposing short sentences, they could go the whole hog, as it were, and impose longer sentences. I am not sure whether the noble Baroness or other noble Lords would welcome that, but it is a temptation that might present itself in certain circumstances. I have just that one reservation.

Although I accept the general points made by the noble Lord about the general undesirability of short sentences, does he accept that there are some cases where the clang of the prison door really is the only answer for repeated minor offences? Notwithstanding all the valuable points about how little can be achieved, something can sometimes be achieved in some circumstances by the very fact of incarceration.

I think that that is right, and indeed the noble and learned Lord, Lord Woolf, said very much the same. It is quite possible, within the ambit of the amendment, to achieve that objective. There may well be cases where what some call the “short sharp shock” may work. I think it will work in probably only a relatively small number of cases, but the option should certainly be open.

As I say, I have some reservations about the second amendment, but I wholly endorse the first one. This is a matter that we need to continue to evaluate, but above all we need to ensure that the probation service in particular is given the resources that it needs to work with offenders so as to avoid not only the social and individual harm that is done but also the enormous cost to the public purse of reoffending, where the rates remain unduly high.

My Lords, I am extremely grateful to all those who have contributed to this debate. It has been an extremely useful one. I am also grateful to the noble Lord, Lord Judd, for reminding us that this is the 200th birthday of Charles Dickens, who gave us the most well-known phrase about the law: “The law is an ass”. He also gave us the best example of the futility of litigation in Bleak House. Dickens was certainly not in awe of the law, and very few of his legal characters are particularly warm.

The noble Lord is being a bit unfair towards Charles Dickens himself. I may be wrong about this, but I think he put the expression, “The law is an ass”, in the mouth of Mr Bumble in Oliver Twist. He is hardly the most sympathetic character in the whole of Dickens.

I shall add that he was saying it in the context of a married woman, who had no separate identity in those days. She was regarded as a part of her husband.

I do not know if my noble friend is agreeing with the proposition, but in these more enlightened days we would all agree that the law on that particular aspect was an ass.

I live and learn. I shall make the point, though, that the phrase, “The law is an ass”, is used more widely than just in terms of the marital relations referred to by my noble friend Lord Thomas. But I digress.

Yes, I started it, but in terms of the quality of the debate, to have a sitting magistrate and a former Lord Chief Justice along with everything in between reflects the range of the debate we have had. I can only say to the noble and learned Lord, Lord Woolf, that providing a copy of Hansard for every judge and magistrate would, in these straitened times, be beyond the Ministry of Justice. However, it is an interesting idea, and of course magistrates can now go online to read our words, so they should certainly do that.

Where I can follow the noble Lords, Lord Judd and Lord Ramsbotham, and others, is in paying tribute to my noble friend Lady Linklater. She invites the term “do-gooder”, and it is a proud badge to wear. She is a wise, realistic and practical do-gooder, and that is why I personally benefit from her advice, as does this House. I should also say that my own commitment to both the magistracy and the probation service is as strong as that of any Member of this House. I believe that both are very important parts of our criminal justice system.

I listened to what my noble friend said about the need for information to be shared between probation officers and magistrates and of course I agree that that is important. But coming back again to a comment made in our earlier debate, I am not convinced that this aim actually requires a legislative provision. I welcome and encourage the sharing of information by probation trusts with magistrates. This already happens in a number of ways. Some are formal and relate to individual cases. For example, when probation supplies a pre-sentence report, the probation staff will outline for the court the suitability of an offender for a particular programme or requirement and the availability of that programme in the local area. There are existing liaison arrangements at both national and local level. At national level, a forum meets quarterly, bringing sentencers, probation and Ministry of Justice officials together to allow for the sharing of information on the national picture.

I was interested to hear of the experience of noble Lord, Lord Ponsonby, of local liaison meetings. I hope that the noble Baroness, Lady Linklater, will not mind me saying that, in private conversation, she has expressed the view that such local liaison meetings have fallen into disuse.

Perhaps I could put the record straight. It is not that they have fallen into disuse, but that they are no longer common practice throughout the country. The noble Lord, Lord Ponsonby, is nodding his head. There are some areas where they are alive and well, and others, probably in the majority, where they are either very poor or non-existent.

I am grateful for that clarification, because I think that such meetings are important. When we discussed this matter previously, it was suggested that a bar to the effectiveness of the meetings might be that magistrates who engage with the work of probation trusts are unable to claim expenses to attend liaison or other meetings with probation. I am happy to say that Her Majesty’s Courts and Tribunals Service is already looking at, and plans to consult on, some of these issues relating to magistrates’ expenses. I suggest that a better approach, working with the Magistrates’ Association, Bench chairs and the senior judiciary, would be to come to a practical solution rather than create more statutory requirements

There are arrangements for local liaison meetings, and I hope that what I have just said helps to plug some of the gaps that the noble Baroness just referred to. The arrangements are governed by a protocol issued by the senior presiding judge setting out the parameters for any discussions between magistrates and probation. A protocol exists because there is a need to ensure that there is no suggestion that sentencers have been influenced by probation priorities or resourcing decisions. The existing arrangements therefore allow for flexibility, with due propriety, as to what should be discussed.

I am not aware of any particular problems with probation trusts supplying information to the judiciary. If any noble Lords are aware of any problems, I would be grateful for details which I could follow up. I certainly think that magistrates should be encouraged to visit both prisons and probation regularly and not just as part of their initial training. I am not aware of any obstacle to them doing so. I do not therefore consider that there is any need for a new statutory duty on the Lord Chancellor to make arrangements for magistrates to visit.

Amendment 176ZB seeks to deal with the different issue of the use of short custodial sentences. The amendment would place a duty on courts to consider all alternatives before imposing a short custodial term. It would also require the court, if imposing a short custodial sentence, to explain why alternative sentences were not considered appropriate. I understand the intention behind the amendment. As the noble Baroness, Lady Linklater, has argued, short custodial sentences can be less effective in tackling reoffending than community sentences. They can mean that an offender during their short time in prison loses their employment and accommodation, all of which is a hindrance to their rehabilitation.

We are about to start a consultation on the effectiveness of community sentences. We are not simply pushing them as a replacement for prison but are hoping to provide sentencers with a much improved community sentence, offering a robust and credible punishment that will have the confidence of sentencers, victims and the public. Although I understand the points that the noble Lord, Lord Judd, made about the treatment of sentencing in some of our media, unless we have public confidence in non-custodial sentences we will have criticism of them. We have to win that public confidence. We will publish a consultation document shortly. We are also running payment-by-result pilots, looking at ways to support offenders on release from short custodial sentences.

There are now shorter programmes on drug and alcohol treatment requirements as part of a community order. The Bill gives more discretion for dealing with breaches of orders; for example, allowing for fines for minor breaches. The system is therefore not as rigid as might be suggested.

It must be clear that the Government have never advocated that short custodial sentences be not available to a court where the offence or the offender merits such a sentence; for example, where the offence is so serious that only a custodial sentence, even a short one, is justified or where an offender has a history of previous convictions or continued breaches of community orders.

Like many noble Lords, I came to this issue initially with great suspicion of short sentences because of the inability to build into them any kind of rehabilitation content. However, it has been put to me on my travels and in this House that a short sentence sometimes gives a community respite from somebody who is making their life hell, and the clang of the prison door, referred to by the noble Lord, Lord Faulks, may just straighten that person out. It has also been put to me that, in certain cases of persistent domestic violence, a custodial sentence may give a wife—usually—the chance to rebuild and reorganise her life. Therefore, although the case against short sentences is strong, we intend to retain them.

I do not quite follow my noble friend’s reasoned argumentation, because Amendment 176ZB, put forward by my noble friend Lady Linklater, does not prohibit short sentences but states that if a short sentence is imposed a court must give reasons. That seems in line with what the Minister was saying previously.

That is why the amendment is not necessary. Since a number of noble Lords had referred to the damaging elements of short sentences, I thought that it was worth putting on the record that, as a lay man in all this, I have had pointed out to me by people with considerable experience areas where the short sentence is effective. I certainly acknowledge that my noble friend said as much in her introduction. Her amendment is not an attempt to prohibit short custodial sentences; rather it seeks to create a kind of presumption that a short custodial sentence will not be imposed unless the alternatives are considered and found to be inappropriate. Such a statutory provision already exists. Section 152 of the Criminal Justice Act 2003 places restrictions on imposing discretionary custodial sentences. Section 152(2) sets out what is sometimes called the “custodial threshold”, the test that has to be met before a custodial sentence can be imposed:

“The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone or a community sentence can be justified for the offence”.

That is the current situation. I suggest to my noble friend that the current requirement is stronger and more wide-ranging than that proposed in this amendment.

I welcome a reminder of the importance of imposing short custodial sentences in essence as a last resort. I see, as I have always done, the full importance of rehabilitation. However, I do not think that this amendment adds significantly to the current law. I hope that the noble Baroness will feel able to withdraw her amendment.

My Lords, would the Minister seriously consider the suggestion by my noble friend Lady Linklater about the proper liaison between the probation service and the magistrate? I chair a commission by the Magistrates’ Association on the future of summary justice. Evidence has been taken from across the country. What comes out very clearly is the extent to which there is effectively good rapport where you have good liaison between the magistracy and the probation liaison committees or probation officers. But there are a number of areas within the country where that does not happen. Could the Minister establish in which areas magistrates’ courts have proper liaison? If that information does not exist, would he issue guidelines so that they can be recommended good practice for this continuous liaison, which is in the interests of both justice and the offender?

If there is anybody I take even more notice of in these matters than my noble friend Lady Linklater, it is my noble friend Lord Dholakia. I will take away that suggestion. As I said, we are looking at the question of expenses in helping to grease the wheels of better liaison. If my noble friend’s suggestion is feasible, I am sure that we can take it forward. I will certainly take it away and think about it.

My Lords, I would be interested if the Minister could encourage the presiding judges of each circuit around the country to carry out an audit of what the situation is in their particular circuit. The presiding judges have a great deal of influence and control over the way that the judicial system works within their bailiwick. Requiring each presiding judge to be in charge of such an investigation is a better way to go about it than starting from the centre—from London—and working outward.

I am not sure what my powers are in instructing, advising or making requests of presiding judges. I suspect that the present Lord Chief Justice might start breathing down my neck. I note what my noble friend has suggested and I will take that back to think about.

My Lords, I thank all noble Lords who have taken part in this extraordinarily interesting and well informed debate, which is really important for how we will take things forward in future. I will whizz through some of the very helpful comments that were made.

The noble Lord, Lord Judd, is always very wise. He said such nice things about me that I could only cap them with my endless admiration for him. He pointed out how important the individual is—the hand held out to lead somebody out of a dark place where we have possibly stuck them. Sharing experiences is of unbelievable importance. I must get the Dickens quotation from him. I know exactly what he means about the press exacerbating the problems of crime.

The noble Lord, Lord Ramsbotham, is the voice of such wisdom and experience. The idea of a prospectus across the services is very good. Is it not interesting that we do not have such a thing? If sentences were linked to behavioural progress, that would make those kinds of targets meaningful instead of being independent of each other.

The noble and learned Lord, Lord Woolf, is my hero. He said that he knew that sentencing was not working well when he was in charge. That showed great honesty and insight. Of course, we both agree that there are times when certain sentences, including custody, are the one appropriate disposal. We accept that. The idea that some of these arguments could make a difference is a wonderful and extraordinary thing. I hope that everybody heard the range of the arguments we have had today.

I thank the noble Lord, Lord Ponsonby, for what he said. I am not sure that I entirely approve of the idea of using custody as the appropriate sanction for a breach. If a community sentence is not working, maybe the community sentence could be reviewed rather than saying, “This has not worked; we must go for breach”.

I certainly think that community sentences can be reviewed and beefed up in some way. We have very clear guidelines on that point. The only point I made was that the vast majority of short custodial sentences that I give are for breaches and maybe multiple breaches. That was my only point.

My noble friend Lady Linklater was on the point about community sentences made by the noble Lords, Lord Ramsbotham and Lord Ponsonby. Probation staff can take back to court offenders who have made significant progress on their requirements in a community sentence. Provision in Clause 62 clarifies the position when community orders come to an end and requirements have been completed. It is already there for community sentences. As I said, we will also consult more on making community sentences effective.

I thank my noble friend for that and for the clarification. It is very good news that that is being taken forward.

I listened to and heard what the noble Lord, Lord Beecham, said on the importance of post-prison support. He suggested that the clang of the prison door might have some effect. I do not really believe that, and the evidence for it is not substantial enough to actually influence policy. I have gone into a cell and heard a prison door clang on me. Even when I have not—to my knowledge—done anything too terrible, that is unpleasant but I question whether it changes the lives of people who are probably already in a very bad place.

Finally, I respond to the Minister. I am not very happy with “do-gooder”, if he does not mind. I am glad that he is pro magistrates and probation. I reiterate that there are some places where liaison committees exist and work well. Yet, if the reality was that the provision was in place and working well, I would not be here, nor would the Magistrates’ Association, the Probation Service and all the others behind me. There is a real sense of a need to beef up and put on some statutory basis the provision that will facilitate this and make the things that we know we need to have in place happen properly. If it was adequate as it is, I would not be here; the fact is that there is a severe deficit in what we are trying to do to make this society a safer and better place, and to make the way we work with offenders more constructive, effective and cost-effective. The fact is that 67 per cent of people on short prison sentences reoffend—that is over two-thirds—and £7.1 billion a year is wasted on sustaining and dealing with the results of such offenders. That is a very important thing, which I hope that my noble friend the Minister will not forget.

I apologise for not being here for the earlier part of the debate. Would my noble friend agree that one should insert an additional factor into the argument—that the vast majority of people who are sentenced to short terms of imprisonment have mental health issues? If we had a stronger community mental health sector, they should not be in custody; they should be in residential or community mental health care.

I thank my noble friend for that, and regard it as very remiss of me for not having mentioned it earlier.

I have listened to what my noble friend Lord McNally said, and am delighted to hear that further investigations into certain things on the justice front, such as community sentences, are being taken forward. That will be very important. I will ponder what he has said until we return at Report. I beg leave to withdraw the amendment.

Amendment 176ZAA, in substitution for Amendment 176ZA, withdrawn.

Amendment 176ZB not moved.

Clause 62 agreed.

Clause 63 : Breach of community order

Amendment 176A

Moved by

176A: Clause 63, page 47, line 6, at end insert—

“(c) omit sub-paragraph (c)”

I shall be very brief. Sub-paragraph (1)(c) of Paragraph 9 of Schedule 8 to the Criminal Justice Act 2003, to which these two amendments refer, allows a court to sentence an offender to custody for breach of a community order even though the original sentence was non-imprisonable. Figures published in 2009 show that 3,996 people were received into prison for a breach of such a community sentence—

This is an important point that the noble Lord is making, but I wonder whether he is right in saying that sub-paragraph (1)(c) refers to being in breach of a community order. It refers to a person who,

“has wilfully and persistently failed to comply”.

It is the difference between those two that is quite important here. I apologise for interrupting the noble Lord so early in what he has to say.

I am very grateful to the noble Lord, Lord Bach. I am speaking about the breach, and I will come to my conclusion if I may. I am not talking about inconsiderable numbers. There is nothing meaningful that can be done in prison to prevent a person from breaching a community order, so what such people are doing merely exacerbates the main problem facing our prisons at considerable expense and to no good effect.

I am very conscious of the problems facing the magistrates. Those problems were very ably set out by the noble Lord, Lord Ponsonby. I refer particularly to the effects of this on the Prison Service ever since the 2003 Act and the increased numbers of people in prison merely for breaching a community order. I personally welcome the flexibility that Clause 63 allows, in that a court dealing with breaches now has new options of taking no action or fining. However, the clause does not provide enough protection for the Prison Service, which is why I am tabling the two amendments, deleting the sub-paragraph and inviting the Minister to consider that the powers to resentence someone to custody for breach should be awarded only if the original sentence was an imprisonable one. I beg to move.

My Lords, in many of his amendments I agree with the noble Lord, Lord Ramsbotham, and I hope to do so later this evening, but on my understanding of his argument here I find it difficult to accept the amendment on behalf of the Opposition.

I shall make a general point. This is not a government amendment—but when there are government amendments dealing with a different Act, as in the case of this Bill, where we are amending the Criminal Justice Act 2003, Keeling schedules, which set out what the amended 2003 Act would look like if we passed this legislation, are incredibly helpful. Indeed, when we were in government, the opposition on all sides used to ask us where the Keeling schedules were—and they were often there. In this Bill, later on tonight or whenever we reach the 17th group, there are very helpful Keeling schedules in important government amendments. But they do not exist elsewhere, as far as I can see, although the Minister has been helpful in writing to noble Lords about government amendments. There is a value in having Keeling schedules in that the House can understand what is being amended.

The Criminal Justice Act 2003 states:

“If it is proved to the satisfaction of a magistrates' court before which an offender appears or is brought under paragraph 7 that he has failed without reasonable excuse to comply with any of the requirements of the community order, the court must deal with him in respect of the failure in any one of the following ways”.

The Bill changes that “must” to “may”. The following ways include,

“amending the terms of the community order so as to impose more onerous requirements”,


“where the community order was made by a magistrates' court, by dealing with him, for the offence in respect of which the order was made, in any way in which the court could deal with him if he had just been convicted by it of the offence”.

I know that the noble Lord has no objection to those provisions, as amended by this Bill. It is sub-paragraph (1)(c) that his complaint is with. That sub-paragraph is not just about a breach. It refers to,


(i) the community order was made by a magistrates’ court,

(ii) the offence in respect of which the order was made was not an offence punishable by imprisonment”—

that is the noble Lord’s point. It goes on to refer to,

“(iii) the offender is aged 18 or over, and

(iv) the offender”—

and these are the crucial words—

“has wilfully and persistently failed to comply with the requirements of the order … by dealing with him, in respect of that offence, by imposing a sentence of imprisonment for a term not exceeding”,

six months.

Provided that the Bill reads “may” rather than “must”, I can see nothing wrong with that. The danger is that someone who is given a community service order for an offence for which there is no imprisonment can get away for ever in breaching community service orders to the extent that he wilfully and persistently fails to comply, and the court will never have the power to deprive that person of their liberty. I agree with the Minister’s point from earlier that if community orders are to succeed—we want them to succeed because they are vital—they must be, in the words of the noble Baroness, Lady Linklater, “robust” community orders. There must be something there, eventually, if someone wilfully and persistently fails to comply with them. It is not just a breach in sub-paragraph (1)(c), but a wilful and persistent failure to comply, which is a step beyond a breach. Clearly, it is more than one breach; one breach would not be enough. Two might be—three might well be. In those circumstances, my case—I may be wrong about this—is that if we agree to these amendments, the result would be that someone who was given a community order for an offence that was not in itself subject to imprisonment could never be sent to prison, however wilfully and persistently he failed to comply with it. On this issue, which I concede is not a major one, I do not agree with the noble Lord, Lord Ramsbotham.

My Lords, I thank the noble Lord, Lord Bach, for his support on this, the first group of amendments that I am dealing with on this Bill. That is extremely welcome. Maybe the issue to which he refers rather reflects upon the quantity of legislation that this House has dealt with over a number of years. I absolutely take his point about the need for clarity and for linking Bills one to another.

I will seek to clarify what we understand these two amendments would do and why we resist them. They would repeal some of the provisions giving powers to both magistrates’ courts and the Crown Court to deal with breach of a community order. The provisions that the amendments propose to repeal give the courts the power to imprison offenders for serious breach of community orders which have been imposed for offences which do not carry imprisonment. Noble Lords agree on that.

As it so happens, community orders cannot currently be imposed for offences which do not carry imprisonment, so these provisions may appear to be redundant and I can appreciate why the noble Lord, Lord Ramsbotham, might have tabled these amendments. However, they were certainly needed in the past and it was only in 2008 that the community order stopped being available for non-imprisonable offences. Before then, a community sentence could be imposed for a non-imprisonable offence. When that happened, these provisions were the only way that a breach could be dealt with—by sending the offender to prison—so however serious the breach, there would have been no custodial disposal without these measures. As I have noted, since 2008 there has on the face of it been no further need for them to remain on the statute book because they are, in practice, no longer necessary.

However, it is not quite as straightforward as that, complex though that may seem. There is an unimplemented provision in Section 151 of the Criminal Justice Act 2003 which, if it were commenced, would allow the courts to impose a community order on a persistent offender, in the way that the noble Lord, Lord Bach, has spelt out, who has at least three previous fines, even if the offence they committed was not serious enough to cross the community sentence threshold. If that provision in Section 151 were to be implemented, it would become possible once more for a community order to be imposed for an offence which did not carry imprisonment.

It follows that we would therefore need the provisions which the noble Lord’s amendments would repeal to ensure that a persistent offender who gets a community order because they have received at least three fines could be penalised by imprisonment in case of breach. Effectively, these two measures go together. While we retain the sentencing power, even if it is not in force, we also need the breach power. I should perhaps say that we have no intention at present to implement the sentencing power but, as I have explained, while this is still an option, we need the breach power against the possibility that it might happen in the future.

I follow the noble Baroness’s argument, which she has made very clearly. Indeed, I was not aware that the law was changed in 2008 so that non-imprisonable offences could not receive a community order, but I see the noble Baroness's way around that. However, to describe it as a breach power seems to be wrong on the basis of how the 2003 Act is phrased. It refers to a person who,

“wilfully and persistently failed to comply”.

In one sense, that is about a breach but not a breach on one occasion. It is the court having to find that there has been a wilful and persistent failure to comply and I hate to see that lessened to a mere breach, if I may call it that.

I heard what the noble Lord said and was very interested in the points that he made. Perhaps it is best if I come back to him to clarify that point. In the mean time, I hope that after this incredibly clear explanation—

My noble friend will recall that it was part of the vaunt of the coalition that the statute book would be tidied up so that there were far fewer redundant statutes. There are in fact hundreds and hundreds, possibly thousands, of redundant statutory provisions—I have a book of them upstairs by my desk. Given that this has not been brought into force now for nine years, in the spirit of clear statute-making would it not be better simply to repeal the original provision and, if the Government wished to have something like it in the future, to introduce that in a proper way in a Bill?

My Lords, that is exactly what I asked and I was assured that in fact the Government wanted to keep the possibility of this being implemented. We therefore need to make sure that it is, as it were, complete.

My noble friend clearly did not understand what I was suggesting: that it is, to put it plainly, senseless to have something on the statute book nine years after it was enacted, with absolutely no intention of bringing it into force.

No, this provision is from 2003 and it has not been brought into force for nine years. Is the right answer to this not to repeal the 2003 provision in question? If the Government then have some constructive suggestions for imposing imprisonment, if it be merited, on people who have been given a community sentence, why do we not start again with those provisions? In reality, my noble friend is not going to suggest for one moment that the Government will bring this redundant provision into force.

I assure my noble friend that in fact I understood him very clearly the first time. I asked, as this was introduced in 2003, changed in 2008 but not complete, why we would not seek to repeal it. However, I was told that the Government wish to retain this, in the possibility that it might be implemented—although with no intention of doing that at the moment. I fully support what he says about trying to rationalise legislation in all areas, and I worked very hard on the companies legislation, the first elements of which were finally rationalised relatively recently, after 100 years. I realise that these things can take a long time, but I take very much the point that legislation needs clarity. However, I hope that in this instance the noble Lord, Lord Ramsbotham, will understand what I am arguing here and be willing to withdraw his amendment.

May I ask my noble friend what may be a naive question? If the provision to which this is attached has not been brought into force but the Government require it to remain on the statute book in case it is necessary at some future date, why is the provision that we are discussing not also subject to a statutory instrument to bring it into force at the same time?

In answer to my noble friend, I expect that it will be necessary that this is in legislation, whereas the implementing would not require further legislation. This is therefore a time to tidy up something which was left untidy.

My Lords, I am grateful to the Minister for that response and intrigued with the points made by the noble Lord, Lord Bach. I am grateful to him for those and for the intervention of the noble Lord, Lord Carlile. As I rather suspected, this simple amendment has disclosed that there is a need to examine the clarity of the legislation regarding breach, while absolutely accepting the problems faced by magistrates. I very deliberately did not include “wilfully and persistently” regarding a breach, because that was not what I was after. Wilful and persistent was covered deliberately by the noble Baroness, Lady Linklater, in her contribution.

There is merit in doing this, though; as I said, we are talking about the sentences but we must also consider what is going to happen to the person who has committed the breach and what the impact will be on the prison service. In our overcrowded prisons, there are currently vast numbers of people serving sentences for a breach since the 2003 Act. It was a small number before but it has become large, and there is nothing meaningful that can be done with them. That really is a waste of time and money, accepting that the magistrates have to do something. This should be thought through, which I hope is what the Minister will take away from this short debate. I beg leave to withdraw the amendment.

Amendment 176A withdrawn.

Amendment 176B not moved.

Clause 63 agreed.

Clause 64 agreed.

Schedule 9 agreed.

Clause 65 agreed.

Amendment 177 not moved.

Amendment 177ZA had been withdrawn from the Marshalled List.

Clause 66 agreed.

Clause 67 : Curfew requirement

Debate on whether Clause 67 should stand part of the 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?

My Lords, I put my name to the stand part debate for exactly the reasons that the noble Baroness, Lady Linklater, has outlined. In his letter to us of 12 December, the Minister said that a curfew can be an effective tool in punishing offenders, preventing reoffending and giving respite to victims. At the same time, the National Audit Office said in a report that such curfews were a problem for employment and could pose real barriers to people finding work. That seems to be the antithesis of preventing reoffending through helping people to live purposeful lives.

I have two comments, one about Clause 67 and one about Clause 75. There is a particular problem with women who are disproportionately affected by such increases, especially if they have children. I cannot believe that this has been thought through.

The other people I am particularly concerned about are those with mental health problems. They certainly do not need to be locked up under virtual house arrest—they need the stimulus of company and everything that goes with it. Again, I do not think that extending such a curfew for a year would serve any useful purpose.

I will always remember visiting young offender institutions where the youngsters were locked up all day, and watching what happened when they were let out for an hour at about 6 pm. They were just like puppies, all over each other. The prison staff, who did not know how to handle this, called it assault. It was not—it was the letting off of the adolescent steam which is a normal part of growing up. Locking up youngsters who come from a dysfunctional family, living in a small number of rooms, surrounded by others, for 16 hours a day for a year, is not a civilised way of coping with the problem. It is punishment, punishment, punishment, to the exclusion of civilisation.

The present system, which has a 12-hour curfew lasting six months, is in many ways causing the problems which the National Audit Office has commented on. Therefore, an extension would make things worse. As the noble Baroness said, we are setting these people up to breach the curfew, and then all we will do is make the problem worse. So I beg the Minister seriously to consider this extension and preferably to omit these clauses from the Bill.

I support the proposal that the clauses should not stand part of the Bill and the comments of the previous two speakers. Liberty has sent me a very helpful brief which I will be using. I declare my interest as a trustee of the Civil Liberties Trust.

Liberty points out in its brief that the Green Paper which led to this Bill envisaged that if there were tougher community sentences, prison would be used less because those sentences would be used instead. This is indeed a worthy idea, but I point out to the Minister that it is supported by absolutely no evidence whatever. Making community sentences tougher instead of making them more positive, rehabilitative and socially useful, simply adds to the number of such sentences and leads to more failure and imprisonment.

On the extension of curfews, it is hard to envisage a beneficial effect on the normal life of a curfewed person. How can a curfewed person become interested in going to work or jobseeking? How can they become involved in caring for a relative or in some activity which will take them away from crime? A curfew is a very blunt instrument with very little penal value. Has thought been given to the effect on the rest of the family? What will the effect be on the other siblings who may be on the straight and narrow and have to spend all their time in the house with the one member of the family who has been deemed not to be on the straight and narrow? What will be the effect on the family if it is the father who has to stay at home for 16 hours for 12 months? That person may spend his time at home drinking, so what happens to his wife and children? These points apply especially to the impact of curfews on children. Surely this measure will be a real hindrance to normal teenage development. It is hard to envisage anything else.

What is the objective of these clauses in terms of ensuring a more effective criminal justice system? In the other place, the Minister said that they would give courts more flexibility. But the flexibility to increase a curfew from 12 hours to 16 or six months to 12 seems more like punitiveness. If it is to give an impression of toughness, I would counsel the Minister against this. The public will not register the difference between 12 and 16 hours and six and 12 months. As a result, more people will fail and the public will then say, “There you are—he should have gone to prison. These non-custodial sentences never work”.

Finally, it might also be worth bearing in mind the cost. These proposals come with a price tag. In terms of change, rehabilitation, giving up drugs and alcohol and developing a social conscience, they add nothing. There are many better ways of spending money.

My Lords, I strongly endorse the proposal of the noble Baroness that both clauses should be deleted from the Bill and the criticisms of the clauses that she and other noble Lords have made. The noble Baroness, Lady Stern, has just referred to a statement made by the Prisons and Probation Minister in the House of Commons, in which he argued that this 33.3 per cent increase in the hours of the curfew and the 100 per cent increase in the maximum period over which such a curfew might be imposed—from six to 12 months—would enable the court to use curfews “creatively and flexibly”. However, there is potential for flexibility in the present system. That is not to say that one is entirely convinced by the present system but even it makes it clear that the 12 hours do not have to be a single period; they do not have to be consecutive. They can be in two or more blocks if the court thinks that is right. The curfew can be for a longer period at weekends than during the week. An element of flexibility is currently available.

I have yet to hear of an evidence base for this proposed change. What has persuaded the Government that a change of this kind will be effective? For that matter, what leads the Government to think that the present system is all that effective? We have heard from my noble friend Lord Ponsonby—no doubt rightly—that he spends much of his time dealing with breaches of community orders, of which this would be one, and sending people to prison for short sentences. It seems that the effect of these amendments would be to place a larger number of people on a conveyor belt to his court and other courts, and thence to prison, with consequences that have hardly been calculated.

A 12-hour curfew is difficult enough. It would be very difficult for anyone with a job, voluntary work or training to fit them in with a 16-hour curfew. It would make it virtually impossible for anyone to travel any kind of distance to work or some other establishment. That cannot be consistent with the aim of getting people—in this case mainly adults—into employment, which is one of the principal ways of avoiding reoffending.

As the noble Baroness, Lady Stern, has pointed out, the curfew is effectively a negative form of community sentence. For community sentencing to be effective it ought to be positive, for example through community pay-back and restorative justice, which we will come to on later amendments. This is simply temporary containment. Indeed, one wonders what the effect will be of children being cooped up in the dysfunctional homes from which too many unfortunately come, and which are probably at the root of their problems in the first place.

I do not know whether the Government propose any assessment of the impact of the current system, let alone—if these clauses stand part and the Bill goes unamended—of the lengthened periods that these two clauses would impose. A proper evaluation should be made before proceeding with any change in either direction, but I am not aware that any such evaluation has taken place or is being planned. Perhaps the Minister could enlighten us. The figure for the number of breaches that the noble Baroness, Lady Linklater, cited at the beginning hardly suggests that the system is all that effective, particularly for children.

This is very much a retrograde change. The noble Lord, Lord McNally, referred to Dickens earlier. I feel that this is almost a Dickensian proposal and one that we should not be developing in the bicentenary of that great writer. I think he would have had some pointed things to say about this type of legislation, and rightly so. I hope that the Government will think again and not press the changes that have been so effectively criticised by Members of the Committee and those outside.

My Lords, Clauses 67 and 75 would enable a court to impose longer curfew requirements as part of a community order, a suspended sentence order or a youth rehabilitation order. The clauses would allow the court to impose a curfew of up to 16 hours a day for a duration of up to 12 months. Enabling the courts to impose longer curfews in this way will make the community order capable of being more punitive and attractive as a suitable disposal for more serious offenders, possibly some who might otherwise have gone to prison. It will also increase the confidence of the public, who too often see community sentences as insufficiently demanding. No doubt these issues will be much debated in this House, but I am very glad that noble Lords support the principle of doing what we can to keep people out of prison. We all know the drivers of that.

We believe that increasing the maximum number of hours of curfew per day will give the courts more scope to use community orders imaginatively to punish offenders, protect the public and encourage compliance.

Perhaps we should leave that to those who are curfewed. For example, a curfew period of 16 hours will enable courts to curfew offenders for 12 hours overnight, as often happens now, but also to add a further period. This is designed to ensure that the offender is at home immediately before a community pay-back session to increase the likelihood of their turning up on time. More seriously, that illustrates the point that I just made about how this could be teamed with something else that the court wishes to achieve. If the curfew is timed so that the person will be at home before the community pay-back session, that is an imaginative way of using it. A young person attending school will need less restriction during the school week but could have their movements more tightly restricted at weekends, when they are at greatest risk of reoffending. That is another point.

I am aware that the Prison Reform Trust does not share this view and believes that the courts already have sufficient flexibility to impose curfews. I know that this belief has been endorsed by the Bar Council. Both have commented on their particular concerns about the impact of these changes on children. While I understand these concerns, it should be remembered that the new curfew limits are maxima. They will be imposed only where such a requirement is, as the law requires, the most suitable for the offender and where the sentence is proportionate to the seriousness of the offence. In respect of under-18s, we expect the longer curfews to be used sparingly and that courts will take their age into account. It will be the court that decides whether and how to use this option.

My noble friend Lady Linklater makes the case for when lengthy curfews would be disproportionate. Doubtless the court would see that in the relevant cases. The kind of aspects that my noble friend mentioned would be raised in court and taken into consideration.

Compliance with curfew is normally monitored electronically through the offender wearing a tag. This will not change. Indeed, we are exploring ways of making more use of electronic monitoring as the technology becomes more sophisticated and robust. None of the existing safeguards will change. Courts will still be required by law to ensure that the restrictions on liberty imposed by any community order are commensurate with the seriousness of the offence, so longer curfews may be more suitable for more serious offenders. It will remain the case that before imposing a curfew requirement, the court will have to consider what the effect of the curfew might be on the person themselves and their individual needs and circumstances and on other people living at the curfew address. With longer curfews being available, it will be even more important that the courts take account of the needs and views of the family members before setting the curfew hours. Youth offending teams will assess the suitability of the home address for curfew purposes. They will make a recommendation to the court on what length of curfew is appropriate. We would expect that any longer length and duration of curfew would be focused on older children where the alternative might be custody.

The point was made that longer curfews would interfere with work and children’s education. The law requires that all community order requirements, including curfews, should, as far as possible, avoid interfering with an offender’s work and education. I hope that that will reassure people. We believe that giving courts the power to impose longer curfews will contribute to realising the aim of making non-custodial sentences tougher and more demanding. In doing so, we hope that they will command greater confidence among sentencers and the public.

I thank everybody who has participated in the debate. Consensus on this issue has broken out loudly and strongly with one unfortunate exception. I understand entirely where my noble friend is coming from and I do not envy her taking that position. Graphic arguments have been put forward regarding the reality of the lives of the people we are discussing. I respectfully suggest that the people who have framed these conditions have not been able to imagine what it is like to be in a house you cannot bear to be in for 12 hours a day for up to a year. Some sort of assessment by the Government in advance of imposing such restrictions on people who are already in trouble might be a good idea. Perhaps some sort of evaluation is in place that could be looked at. I do not know whether that is the case. Of course, it is a good idea to find alternatives to custody and for more serious offending but not, I suggest, if it hastens the route to custody. I cannot imagine how this measure will not lead to more reoffending. If there are more serious offenders around, it will simply result in more serious offending because these sanctions will be almost impossibly difficult to adhere to.

Once again, I thank everybody who has participated in the debate. I say to my noble friend that I hope that the arguments that have been made this evening will be taken away and considered very carefully before we come back to the matter on Report.

Clause 67 agreed.

Clause 68 : Foreign travel prohibition requirement

Amendment 177ZB

Moved by

177ZB: Clause 68, page 51, line 3, after “country” insert “or territory”

My Lords, the amendments in this group are minor, technical amendments to ensure that the extent of court-imposed foreign travel prohibitions includes territories as well as countries. I beg to move.

Whenever I was sitting where the noble Baroness is sitting now and I began my speech on government amendments by saying that they were minor and technical, those sitting opposite me used to look doubly hard at those amendments to see whether they really were minor and technical. I am not saying that I have looked doubly hard at these amendments but they are clearly minor and technical and we have no objection to them.

Amendment 177ZB agreed.

Amendments 177ZC to 177ZE

Moved by

177ZC: Clause 68, page 51, line 5, after first “country” insert “or territory”

177ZD: Clause 68, page 51, line 5, at end insert “or territory”

177ZE: Clause 68, page 51, line 7, at end insert “or territory”

Amendments 177ZC to 177ZE agreed.

Clause 68, as amended, agreed.

Clauses 69 to 71 agreed.

Amendment 177A

Moved by

177A: After Clause 71, insert the following new Clause—

“Alcohol monitoring requirement

(1) After section 212 of the Criminal Justice Act 2003, insert—

“212A Alcohol monitoring requirement

(1) In this Part “alcohol monitoring requirement”, in relation to a relevant order, means a requirement that during a period specified in the order, the offender must—

(a) not consume alcohol,(b) for the purpose of ascertaining whether there is alcohol in the offender’s body, provide samples of such description as may be determined, at such times or in such circumstances as may (subject to the provisions of the order) be determined by the responsible officer or by the person specified as the person to whom the samples are to be provided, and (c) pay such amount of no less than £1 and no more than £5 in respect of the costs of taking and analysing the sample as may be specified in the order.(2) A court may not impose an alcohol monitoring requirement unless—

(a) it is satisfied that—(i) the offender has a propensity to misuse alcohol and the offender expresses willingness to comply with the alcohol monitoring requirement, or(ii) the misuse by the offender of alcohol caused or contributed to the offence in question, and(b) the court has been notified by the Secretary of State that arrangements for implementing the requirement are available in the area proposed to be specified in the order under section 216 (local justice area to be specified in relevant order).(3) A relevant order imposing an alcohol monitoring requirement must provide that the results of any tests carried out on any samples provided by the offender to the monitoring officer in pursuance of the requirement are to be communicated to the responsible officer.

(4) The Secretary of State may from time to time give guidance about the exercise of the function of making determinations as to the provision of samples pursuant to subsection (1)(b).

(5) The Secretary of State may make rules for all or any of the following purposes—

(a) regulating the provision of samples pursuant to an alcohol monitoring requirement, including hours of attendance, interval between samples and the keeping of attendance records;(b) regulating the provision and carrying on of a facility for the testing of samples;(c) determining the maximum and minimum fee that may be specified under subsection (1)(c), and the frequency of such payments;(d) regulating the functions of the monitoring officer; and(e) making such supplemental, incidental, consequential and transitional provision as the Secretary of State considers necessary or expedient.(6) In this section, “monitoring officer” means any person, other than the responsible officer, specified in an alcohol monitoring requirement as the person to whom samples must be provided.”.”

My Lords, this set of amendments concerns an alcohol monitoring requirement and is modified from those tabled in Committee on the Police Reform and Social Responsibility Bill. The alcohol monitoring requirement requires an offender to abstain from alcohol and be regularly tested to ensure compliance as part of any community or custodial sentence. It would provide an additional option—a new tool—for the courts.

These amendments would not stop responsible social drinking. They aim to deal with irresponsible, anti-social alcohol abuse and its devastating consequences. When I tabled these amendments previously, the Government’s response was that they would pilot the idea in October, using existing legislation for low-level crimes. October has come and gone. Where is the pilot? Anyway, this is needed for middle and high-level crimes, not just low-level crimes.

I should explain why we need primary legislation to undertake a proper pilot. London wants to do a pilot and will fund that pilot. The proposal has wide support. London Councils, which represents all 32 London boroughs, has written to Ken Clarke supporting the scheme. The chair of London Councils is Mayor Jules Pipe, the Labour elected mayor of Hackney. The scheme’s project board has representatives from Her Majesty’s Courts Service, London Probation, Public Health and the Crown Prosecution Service involved in developing the pilot. Consultation has involved domestic violence victims, Refuge, Women’s Aid, domestic violence offenders, health leads and those with an interest in the night-time economy from transport to addiction support services.

Today, I spoke to Bernard Hogan-Howe, the Metropolitan Police Commissioner, who is “fully supportive” of the proposal. He commented that alcohol is a precursor to crime in about 80 per cent of crimes in London and that after six o’clock at night you can smell the problem in the police cells. Violence against the person offences account for 64 per cent of Metropolitan Police alcohol-flagged offences and criminal damage accounts for some 11 per cent of alcohol- flagged crime. We should remember that only about 10 per cent of offences get flagged as alcohol-related even though, in recent British Crime Surveys, victims believe offenders to be under the influence of alcohol in about half of all violent incidents. The commissioner wants this to be a mandatory scheme. Voluntary schemes do not work because you need to support those who most need it and who are unlikely to recognise that need without compulsion. He wants this measure to act as a driver for better health as youth binge drinking is now a common cause of end-stage alcohol-induced liver failure in those aged under 25. We have a major social and health problem.

The Metropolitan Police view this measure as an additional tool against drink-driving and domestic violence. The proposed alcohol monitoring requirement has the potential to reduce reoffending for alcohol-related crime, particularly drink-driving and domestic violence, and contribute to long-term behavioural change of offenders.

Data in the US, where the scheme has been in place for eight years, show that reoffending rates at three years after alcohol monitoring more than halved when compared with traditional sentences of fines or custody. There in the US, 99 per cent of tests are negative, and two-thirds of those on an alcohol monitoring scheme have perfect compliance throughout the whole period of the scheme.

Courts need a different sentence to tackle alcohol-related crime because what we have is just not working. Custody tears families apart and single large fines damage the children in the home more than the offender. Neither custody nor fines address behavioural change. London wants to pilot this scheme in relation to offences of violence against the person, drink-driving and domestic violence. It is recognised that developing a scheme in relation to domestic violence would require particular care to ensure that the safety of the victim, including any dependants, was an integral part of the scheme.

These amendments will enable the court to take enforcement action on alcohol-related violence and to monitor compliance, particularly regarding middle-level offences such as common assault, offences against the person, threatening behaviour and domestic violence. How would it work? Pre-court screening aims to identify alcoholics whose needs are so great that the scheme would not be suitable for them. Alcohol monitoring as part of a suspended sentence, a community sentence or post-release licence would be an alternative to custody when the magistrate is satisfied that the offender understands the demands, which are no alcohol and daily testing.

Evidence suggests that the period needs to be 12 weeks to achieve real behavioural change. The court would order the offender to pay for each test—usually £1, which is less than such offenders are paying for their drinks. Let us get this in proportion: £2 a day is less than the cost of one pint of beer in a pub or two pints from many supermarkets. The cost of the monitoring to the offender is very low compared with the amount that they are normally spending on their huge alcohol intake—even when that is irregular. Testing would be done by either a private company or voluntary third-sector agency using paid staff, not volunteers. It will not tie up police constable time.

For the pilot, test centres would use existing court and probation premises near transport hubs. The initial alcohol test would be taken with a standard breathalyser. If it is positive, a second test would be taken with evidential standard equipment and mouthpiece. Breaches, which might be through a positive breath test, non-attendance or non-payment, would be dealt with using standard processes, with a swift and modest sanction such as an extension of the monitoring period in the first instance. Non-payment will need a flexible approach, particularly for those on benefits, and will be specified in the protocol. I have gone through the draft protocol but I shall not delay the debate by going through its minutiae.

The amendments are compatible with our human rights law—in particular, Articles 5 and 8, and habeas corpus. Let me be explicit: there is no compulsion on an officer to arrest a person for non-compliance and no compulsion to detain on arrest. An officer may arrest a person only when it satisfies the test of reasonableness and proportionality in Article 5.1(b).

In London alone, almost 9,000 cases would be suitable for the scheme. Between half and a quarter of these are people who are employed. The scheme would allow them to present for testing on the way to and from work, without any risk to their job. For offenders with anger and aggression issues, counselling and family support have the greatest chance of success when the participants are sober.

Existing orders that relate to offences for low-level crimes and have been used in cases of alcohol abuse do not have a success story attached to them. The alcohol-monitoring requirement would be appropriate for medium to high-level offences that require appearance at a court for sentencing. Existing orders were discussed with the Home Office and Ministry of Justice officials, but were considered inappropriate by those who want to pilot this scheme in London because, for example, drink-banning orders keep people out of an area but do not halt the abuse, and are non-enforceable. Conditional cautions need to be voluntary, involve an admission of guilt and are managed by the police. The police do not want to use conditional cautions because they do not have the manpower and do not feel that such cautions are appropriate. Anti-social behaviour orders are civil orders to tackle harassment, alarm or distress to one or more persons not in the same household, and therefore do nothing to tackle domestic violence. Community sentencing could require attendance but not testing by breathalyser. Penalty notices for disorder do not require an admission of guilt, and do not count as convictions. The current fine of £80 is suitable only for minor offences.

I am sure that the Minister will say in response that the Government plan a pilot under community sentencing, just as they did previously for low-level offences, by using tagging for secure continuous remote alcohol monitoring—SCRAM devices that detect alcohol in sweat. These devices are not yet type-approved by the Home Office. They are bulky, are fixed around the ankle, and make a buzzing sound every 30 minutes as they sample the sweat. The offender cannot travel without prior permission because they have to be near the base station to download data daily. The wearer has to connect the device to the mains to recharge and cannot bath, use household cleaning or personal hygiene products that contain any alcohol at all, because that would give a false positive reading—and the device is in place for three months. As for the collection of the £1 test cost, the principle of hypothecation locally is already in place for asset seizures. The police can already hypothecate when the money is there.

We have an epidemic of alcohol abuse in this country. We cannot carry on doing what we are doing. It just is not working. These amendments would allow a full pilot to take place in a small area. London wants to do that to discover how well it works or not, and to iron out any problems. These amendments are essential to allow that pilot to happen. I beg to move.

My Lords, anyone who has spent time in an accident and emergency department on a weekend evening will recognise the truth of what the noble Baroness has just said—that we face an epidemic of alcohol-related crime that is clogging up the A&E departments every weekend, with people being brought in with serious injuries sustained as a result of alcohol-related violence. I declare a personal interest, having been taken into St Thomas’s after suffering a burst colon as a result of being knocked off my bicycle in Millbank. It was on a Saturday night after a delayed reaction to the accident. I was taken in at 4.30 am and had to wait six hours before I received attention, and the whole of St Thomas’s A&E department was filled with people who had suffered alcohol-related injuries on the streets.

I echo the noble Baroness in saying that we have signally failed in attempting to find an effective way of dealing particularly with persistent offenders who commit their crimes under the influence of alcohol. London Councils has drawn our attention, as the noble Baroness said, to the fact that almost half all violent crime is fuelled by alcohol, and that each year more than a million alcohol-related hospital admissions occur—and that figure is increasing by 8 per cent per annum. The Home Office estimates that the cost of alcohol-related crime is somewhere around £10.5 billion a year, which does not even count the costs imposed on other departments such as health or justice.

These amendments therefore provide a new approach that has been tested and found to be highly effective in reducing serial alcohol-related offences of all kinds, including street violence, driving under the influence, domestic violence, burglary and theft.

In South Dakota, where the scheme was pioneered, alcohol-related motor vehicle fatalities were reduced by 60 per cent after the scheme had been in operation for five years. The system has now been extended to neighbouring states and will, I believe, be imminently tested in Strathclyde.

I was very impressed by the presentation given to some of your Lordships in a Committee Room upstairs by Professor Humphreys on the behavioural science associated with the Dakota system and why it works. The statistics certainly show that it is highly effective. The essence of the system is that the offender must sign up to total abstinence from alcohol and undergo regular testing to ensure that he adheres to the undertaking.

If the test is positive, that leads to a further confirmation test, and if that too is positive the breach leads to an immediate court appearance, which could mean a night spent in custody—it mandatorily leads to a night in custody in the case of South Dakota, whereas in the case of the London experiment, which is supported by all the London councils and the GLA, it means an extension of the alcohol monitoring requirement. In the South Dakota pilot, I understand that immediate 24-hour imprisonment was mandatory but, in the review of the proposal, the sentencing power of the courts in the proposed Greater London scheme is far more flexible. The case is overwhelming that we should try this experiment, and I very much hope that the Minister will accept the noble Baroness’s amendment.

My Lords, it is a pleasure to speak to the amendments and to support the noble Baroness, Lady Finlay. To me, the points made by the two previous speakers are unanswerable. We know that we have a very serious problem with alcohol, and the current solutions are not working. Those problems are leading to enormous costs not just for stretched hospital and police services but for the health and well-being of those concerned. We heard about some of the London statistics, but I hope that your Lordships will forgive me for repeating them because they are so shocking.

In 2010-11, there were more than 1 million alcohol-related hospital admissions, and the figure is rising by about 78,000 each year. Alcohol accounts for an estimated 40 per cent of A&E attendances. London has the highest rate of alcohol-related crime in England. In 2010-11, there were 11.7 alcohol-related crimes recorded per 1,000 population, compared with 7.6 countrywide. Last year, the police alcohol-flagged offences for London showed 18,403 violence against the person offences, 3,612 criminal damage offences, and 2,136 theft and handling offences. London also had the highest rate of alcohol-related violent crimes and sexual offences, which is why the impact on violence against women has been incorporated within the proposal, initially for domestic violence.

It is not surprising that, as we have already heard, the proposals have the enthusiastic support of the Metropolitan Police and the mayor, who wish to trial the scheme. But what do the general public think about the proposals? ICM research conducted a survey on behalf of the GLA in November last year which showed that 69 per cent support the idea of the courts having the option of banning an offender from consuming alcohol if they have been found guilty of committing an alcohol-related offence. There is also support of nearly two-thirds for the courts having the option of banning someone who has been given bail from consuming alcohol.

Let us remember that these are not just statistics; they are real people.

I wish to make a few further comments as a family member, as a mother, on behalf of hundreds of thousands of anxious parents who spend sleepless nights waiting for a call from A&E or the police station, waiting for the door to slam, for the sound of stumbling up the stairs, for the retching in the bathroom, hoping not to see, the following morning, another black eye or more bruised knuckles.

The current measures fail. These proposals ensure three months of enforced sobriety and would provide a window of opportunity for reflection, for peace for the whole family unit to work together to help a young person to take responsibility for his or her—and we all know the shocking statistics now of how many “hers” are getting into trouble—own behaviour. These proposals would provide families with a lifeline to cling to at a time of enormous stress and strain in their lives.

I say to my noble friend that 69 per cent of the public support the proposals. The mayor is prepared to fund a pilot scheme and every London borough wishes to run that pilot. Members of your Lordships' House with tremendous expertise and experience support the proposals. I so hope that the Government are prepared to do so too.

My Lords, I, too, support the amendment, which was moved so ably by the noble Baroness, who has done a great deal of work in bringing it to the attention of your Lordships. I shall make four points briefly.

The noble Baroness, Lady Finlay, said that this is an epidemic affecting the nation. She is of course right, but it is not a new epidemic. It is absolutely shameful that this epidemic has been affecting the nation to a greater and greater extent for, perhaps, the past 150 years. My noble friend Lord McNally got into a little difficulty earlier when he mentioned Dickens to the Committee, and probably rather wished that he had not. I think I will not be controverted if I say that Dickens describes the effect of drink on young and, in many cases, very poor people in London very graphically in a way which has developed over the years. It is absolutely shameful that this epidemic has been allowed to continue for so long and it is about time that we did something about it. This proposal promises a great deal.

My second point is about the experience of the courts. The Metropolitan Police Commissioner, Mr Hogan-Howe, who supports the amendment at least in principle, came to London after a gap following a period when he was the chief constable of Merseyside. On every Monday morning—I do not wish to be Liverpoolist about this; I am merely using a city I love as an example—in the magistrates’ court in Dale Street, there is a procession of young men and some young women who have been in custody over the weekend because of mostly, but not always, relatively low-level offences committed because of uncontrolled drinking. Bridewells such as the Liverpool Bridewell on a Friday and Saturday night are a sad piece of evidence as to the effects of drink taken to excess by young people.

I do not want to sound sanctimonious about this. Teaching people responsible drinking is a very good idea. We want families to teach their children responsible drinking, which you will have seen in fairly large measure after Wales’s victory over Ireland at the last gasp of the match last weekend—I knew that that would provoke my noble friend Lord Thomas from his slumber in front of me.

My point is that in every magistrates’ court and every Crown Court—this goes to serious levels of offending —although we tend to talk a great deal about the effect of drugs, believe me, the effect of drink is ubiquitous. Any of us who has practised or has sat in those courts knows that it attracts every kind of crime and affects every class in society and every age group, but particularly the young.

Thirdly, I mention legal aid. We have spent a lot of time in this Committee trying to find ways to save money without removing legal aid. If there is one sure way to save money on legal aid, it is by reducing the incidence of serious crime by the introduction of this kind of measure. I confess my interest as president of the Howard League and feel that I can put my hand on what passes for my heart and say to my noble friends on the Front Bench: if there is one guaranteed way of saving a great deal of money on legal aid in the very serious and middling sectors of crime, it is by adopting this kind of measure.

My fourth point is about the revolving door of imprisonment. In one connection we heard earlier from the noble Lord, Lord Ramsbotham, about 3,000 people who found themselves in prison because they were in breach of an order made in respect of a non-imprisonable offence. That is just one example of a huge cohort of people who find themselves in prison for breaking the law, although not terribly badly, relatively speaking. There is no cause of that door revolving at high speed greater than the misuse of alcohol. I believe that it would be completely irresponsible if we were not to seize this opportunity provided by the noble Baroness and have some serious pilot projects of the kind described in the amendment. I respectfully suggest to my noble friend on the Front Bench that in fact Liverpool would be a very good place to have a pilot because it has the community court, which was introduced by the previous Government. It is working extremely well and has won plaudits all around the world. In partnership with the community court, this kind of system could offer something towards reducing crime.

There is an analogy here. Drug treatment and testing orders—DTTOs—administered by judges, have been extremely effective in reducing drug-taking at a relatively low level. I have spoken to a number of circuit judges who have had to administer these orders and to a man and woman they believe that this kind of measure, which seeks to reduce the level of substance misuse gradually, works really well, mainly because it ceases to be authoritarian and engages the partnership of the person concerned. It works because most people who commit violent offences when they are, for example, under the influence of drink regret it afterwards and do not want to appear before a court in the future.

On those grounds, I support the amendment as strongly as I can and I hope that we will hear a positive response from the Front Bench.

My Lords, I start by giving the apologies of my noble friend Lord Brooke of Alverthorpe, whose name appears on the amendment. Unfortunately, he had to leave for another engagement.

I very strongly support the initiative set out by the noble Baroness. As has been said by others, it is a real recognition of the role that alcohol plays in crime, especially in domestic violence. The link between alcohol and domestic abuse is well known, as is the link between alcohol and cases of child protection. Alcohol Concern has demonstrated how often the criminal behaviour is repeated if the alcohol abuse is not tackled. As more than one of its clients has said, “He only hits me when he’s been drinking”. But as the alcohol support worker would reply, “If you knew you were going to hit the person you most loved once you were drunk, do you think you’d have that first drink?”.

The fact that so many men continue to take that first drink shows how valuable an intervention aimed at offenders could be. The sobriety scheme could play a role in this. I do not think that it is enough on its own, as I think that there needs to be some alcohol referral work to go alongside it. People who fail to tackle their misuse themselves are likely to need some assistance to work in parallel with breath-testing. That may involve some fairly brief intervention by experienced staff, and I believe that this scheme, working in parallel with the provision of such help, could make a real difference. The running of a pilot scheme, as suggested, is just the way to see whether this would work and whether, together with some brief interventions, it could help to deal with people who have a drink problem but who, by themselves, simply cannot get it under control. It could make a difference to the continued problem drinking of those who have broken the law.

I am no longer a magistrate, unlike my noble friend, but when I was a magistrate I would have loved the possibility of a rehabilitation order to monitor alcohol consumption. I believe that we should place victims centre-stage when we assess these amendments. Not only is most domestic abuse—that is the phrase used, although we used to call it “wife battering”—alcohol-fuelled but so, as we have already heard, is violence on the streets and against property, and there would be considerably less of that without the addition of drunkenness. When are we going to take action, as this House could do tonight, and do what ordinary, decent people want, which is to reduce the alcohol-related disruption to their lives?

This is an enabling measure. It does not require courts to impose it. It is an opportunity for someone with a propensity to misuse alcohol in a way that damages others, not themselves, to have a period of sobriety with, it is hoped, help, thus improving their family life as well as the well-being of others. The amendment would allow a magistrate to do this only if alcohol caused or contributed to the offence and the offender had a propensity to misuse alcohol and was willing to comply with the requirement.

My noble friend Lord Brooke of Alverthorpe was very anxious to make the point that a sunset clause could be added to a provision for such pilots so that, if they had not taken place after a year, the provision would not be needed on the statute book. Might that help the Government to accept the proposal? I very much hope that they will grasp with both hands this excellent idea of a pilot.

My Lords, I must admit that when I started to listen to this short and interesting debate, I was somewhat puzzled by it and I certainly did not think that this proposal had much of a part to play. However, the more I listened, the more interested I became. Having heard the very good speeches of my noble friend Lady Finlay and the noble Baroness, Lady Jenkin, setting out the support that exists, and indeed the practical support from the mayor, I am now convinced that this is a possible area for action. However, I have a question. When an assessment of alcohol consumption was made, could a test also be carried out to see whether drugs were involved and, if they were, could drugs also come under the treatment required? We all know that, alas, the consumption of drugs, as with alcohol, is rife. Equally, I totally accept that the amount of alcohol consumed by the young today is huge compared with what young people drank in the past. I am talking about quantities, because one sees how much is drunk by the younger generations. Having heard the noble Baroness, Lady Hayter, I also agree that it might be a good idea to have a sunset clause. Somewhat to my surprise, I am quite attracted to this idea and I shall be very interested to hear what the Government have to say.

It may be helpful if I respond briefly to the question about drugs. Drugs can be tested using this model, as has happened in Hawaii. However, this is about alcohol monitoring. The drug problem involves a much smaller number of people and there is not the same level of gratuitous violence as one gets with alcohol. Also, drug-testing usually requires a urine sample, whereas here we are talking about a breathalyser which will pick up alcohol levels. This is exactly why a pilot is important. One can find out the problems that can occur and the pilot could be rolled out further if it was successful. This is about alcohol monitoring, and we are dealing with alcohol because it is the biggest problem that we face. In conjunction with that, of course, there is lots of support on offer to people. The problem is that they do not take it up.

My Lords, I had no intention of speaking in this debate but having listened to noble Lords, especially the noble Baroness, Lady Finlay, I could not sit any longer. I am speaking because I truly support what is being said about sobriety testing and I ask the Government really to look at this. In the area in which I work, alcohol is my passion, because I am the victim of a crime—my husband was kicked to death in an alcohol-fuelled murder, so I am passionate about this subject. I am a practical person and not into statistics. The statistic that I want to look at is, what is the magic number? Are we really going to roll up our sleeves and tackle this? I welcome the amendment and am looking for support around the House. We need to consider the solutions in front of us and not keep waiting for further evidence. Let us do something not just to prevent having more murder victims but to help the young to have a healthy and socially responsible lifestyle ahead of them.

My Lords, I do not want to detain the Committee for long partly because I agree with virtually every word that all noble Lords who have contributed to the short debate have said. The speeches made by the noble Baronesses, Lady Finlay, Lady Jenkin and Lady Newlove, and the speech of my noble friend Lady Hayter encompass all the arguments.

I have to disagree, however, with one point made by the noble Baroness Lady Finlay, which was the dismissal of possible technical solutions. Quite fortuitously, after the debate on a similar amendment to the Police Reform and Social Responsibility Act, I met some manufacturers of equipment who, in passing, referred to equipment they have developed—I gather that three or four other manufacturers have done similar things—that enables remote alcohol monitoring. It would be wrong to dismiss that as an option. The equipment that I saw when I asked further about this—I understand that it has been shown to the Home Office, although I do not know the outcome of those discussions—clearly did not have all the disadvantages that the noble Baroness described.

I hope that the Government will respond to the views that have been overwhelmingly expressed in the Committee today and recognise that this point should be taken on board. This is a permissive proposal that will allow the pilots to take place. It is not mandatory either on magistrates or the police in terms of the action that they take. About 40 per cent of violent crimes have an alcohol component to them, so if this demonstrates that you can do something useful to reduce the level of alcohol-fuelled crimes, reduce the number of people who have to be admitted for longer periods or reduce the numbers at the revolving door into penal establishments, then it has to be in the interests of society as a whole. I hope that the noble Baroness who will respond to this debate has been briefed to say that the Government will support the scheme, and that they will either accept the amendment or table a suitable one on Report or Third Reading that will put this on to the statute book and enable these pilots to go ahead.

My Lords, the problems of drugs in this country are always in the news. The arguments about whether they should be legal, illegal or somewhere in between are a constant source of debate among talking heads—quite rightly too, as it is a very serious problem and issue. By comparison, the issues of alcoholism and too much consumption of alcohol have always taken, certainly in recent times, very much a second place in discussion. Of course, if we read our local newspapers, we will see one such case after another—often they are minor, but sometimes they are very serious, which I shall talk about in a moment. We hear of X being found drunk and disorderly at the very bottom end of it, or of criminal damage or damage to a person. Every week countless cases are there to be recorded by any enterprising journalist who goes along to the local magistrates’ court. It is a wonder that, over many years, we have allowed this imbalance to grow—as the noble Lord, Lord Carlile, emphasised—in our discussion of drugs and alcohol. Alcohol when misused is a drug. There is no question or doubt about that.

We have heard some extraordinarily impressive speeches in a very impressive debate. From the opposition Front Bench we welcome the amendment and will support it all the way. I can be brief, as I know that people are waiting for other business to begin, but the facts are truly terrifying. There are 1.2 million alcohol-related violent incidents a year, including about half of all violent crimes. There are 360,000 incidents of domestic violence, a third of which are linked to alcohol misuse. There are all those arrests for drunkenness and disorder. The noble Lord, Lord Carlile, talked about medium and serious crime. There are 530 drink-driving deaths—what a waste that is. There is also the appalling statistic that 58 per cent of rapists reported drinking, no doubt to excess, beforehand. They are horrifying figures for a civilised society and more needs to be done.

We are living in a time of austerity—it does not matter whose fault it is for these purposes—when more people are unemployed and people are probably poorer than they were. The figures for relationship breakdown are not exactly encouraging. Those are all factors that have been associated in the past with heavy drinking. We cannot be careless about the issue now. The cost each year is absolutely huge—£8 billion to £13 billion a year, as estimated by the Home Office in 2010. We have heard about the National Health Service and the ridiculous amount of money that it has to spend on people who constantly get drunk and then get hurt.

Of course I claim that the previous Government did useful and good things in this field, and no doubt the Government before that one did too, but that is no argument in itself. We have to do more and we have to take slight risks. We have to do more than we would otherwise think of doing. It is not a matter for some bureaucracy to decide that we can move forward on this step but not that one. This suggestion has been well discussed by the noble Baroness, Lady Finlay, and her supporters, and I pay special tribute to the noble Baroness, Lady Newlove, who speaks with such effect on all these matters. The argument has been so one-sided that is very hard to see any argument at all against the Government supporting, at least in principle, what has been suggested. I hope that they will support the amendment. We certainly support it—it would be a crying shame not to. It is, after all, a pilot that is being proposed. It is not a dramatic implementation across the country all in one go. A pilot has been proposed and I cannot think of one argument against adopting it.

My Lords, in responding to these amendments I am aware that these proposals were discussed previously in the Police Reform and Social Responsibility Act last year. I am very glad to say that we very much support the principle of the intention of the noble Baroness and other noble Lords who have contributed to this debate. It is very clear that alcohol-related offending causes a great deal of harm and there is an undeniable logic in tackling alcohol-related offending by preventing an offender from participating in the activity that has given rise to or exacerbated their criminal conduct.

The noble Baroness makes a very cogent case, and we all know how very damaging the abuse of alcohol can be. I can therefore confirm to the Committee that the Government will shortly be establishing two pilot schemes to test the principles and effect of enforced sobriety schemes as part of our effort to tackle and reduce alcohol-related crime, drawing on the success of similar schemes that have been trialled in the United States.

At the time of the policing Bill, the Government committed to testing sobriety schemes as part of conditional cautions within existing legislation. Since then, the Ministry of Justice and the Home Office have developed further proposals to pilot sobriety as part of community orders within the existing law. There will be two pilots using tags and breathalysers because it is extremely important to assess the practical advantages and disadvantages of schemes such as this. The conditional caution pilot will focus upon offenders who commit high-volume alcohol-related offences, such as drunk and disorderly, common assault and criminal damage. Offenders will face the tough choice of accepting sobriety conditions or facing prosecution and the prospect of receiving a drinking banning order on conviction. Anyone failing to comply with these conditions would be prosecuted for the original offence.

The second pilot will test sobriety as part of community orders, which will target a range of more serious offences where alcohol is a contributing factor. We will be looking at making use of the latest technology through which to monitor an offender’s compliance with the terms of the sobriety requirements. Breach procedures will exist as they currently do. We will set out further details of these pilots in the Government’s forthcoming alcohol strategy.

We want to hear the views of the judiciary, professionals within the criminal justice system and the public on the proposals. We will therefore be consulting in parallel with the pilot schemes to ensure that we give full consideration to the purpose, effect and benefit of sobriety schemes as we develop work further. The noble Baroness, Lady Finlay, as a medical scientist, knows how important it is to evaluate evidence. In her introductory remarks, she flagged up some of the complexities in this area. It is extremely important that we learn from these pilots in order that we can take forward what works best.

Alongside this we are taking a range of other measures to tackle alcohol-related offending. Pricing is one crucial lever for tackling alcohol misuse and its associated crime and health harms. I have just mentioned that the Government’s alcohol strategy will be set out shortly. We are also rebalancing the Licensing Act in favour of communities by giving greater powers to police and licensing officers to tackle irresponsible businesses. We are also strengthening violence reduction programmes to incorporate a greater emphasis on tackling the impact of alcohol and drugs and gathering evidence from drinking banning orders that are being piloted in 50 areas across England and Wales.

The noble Baroness has done a great deal to bring this issue to the Government’s attention, and I congratulate her for it, but as I have said, it is extremely important that we are certain of the effectiveness of this policy before it is put in statute, which is why I am very glad that we can take forward the pilots under current legislation so that the practical aspects can be properly assessed. There are some concerns not about the principles of the amendment but about the design of some of the elements. We feel that some safeguards are not quite as they should be.

The noble Baroness mentioned questions over the tagging equipment. It will be assessed, but I flag up that in 45 states in the United States it has been used for more than 5,000 offenders and has the confidence of the US judiciary and so on. There are a number of things that I can write to the noble Baroness about in regard to that, but as the noble Lord, Lord Harris, said, there are different views on some of the equipment which are slightly at variance with what the noble Baroness said. That shows how important it is to pilot and to see how these various approaches work.

On the issue of compelling an offender to pay for the test, while there are mechanisms for courts to administer and collect financial penalties, no mechanism exists for a criminal court to require an offender to pay the costs of delivering a non-financial penalty in this way. Furthermore, since the fine would be a punishment in its own right, this would add considerable punitive weight to the nature of the sentence and the court would factor that in. Therefore, we feel that the offender-pay element in the noble Baroness’s pilot proposals should not be taken forward. It is not an essential part of them, and we feel it is very important to see how other aspects of the proposals work.

There are a number of other concerns about the proposed amendments—for example, the proposal to give a constable a power of arrest without warrant, without warning and, more importantly, without appropriate consultation with the responsible officer, either a probation officer or a youth offending team worker. If the intention is to bring an offender immediately back to court, it would achieve little because there is no power to detain the offender, who would have to be released pending any breach hearing. There are some complexities in that.

Various noble Lords mentioned domestic violence. In piloting this, we do not feel that it is the first area in which we want to use this. We have reservations about sobriety schemes being applied to domestic violence offenders because, if you like, alcohol does not cause domestic violence although, of course, it may very well increase its severity and/or frequency. The noble Baroness, Lady Hayter, referred to that and to the need to make sure that there are other programmes in place to ensure that the reasons for that domestic violence are being tackled properly. Therefore, for those reasons, it is clear that we need to address the underlying reasons why domestic violence is taking place. It is probably not the best area in which to see whether this is working well. If in future, in conjunction with other supportive measures in the way that the noble Baroness, Lady Hayter, indicated, it is seen as having potential, that will be a different matter.

I am not at all surprised that there has been huge public interest in this. Like the noble Baroness, Lady Jenkin, I am a mother, and I know the impact on my children of alcohol—their own consumption, that of their friends and that of their adversaries. I have been in A&E with broken bones and in hospital with one of my children who chose to swim the Thames when drunk at midnight and ended up with something like typhus. Thus far, my children have survived, and I have not faced the awfulness of what the noble Baroness, Lady Newlove, had to face.

These are very important proposals and we have given very serious thought to them. We are very grateful to the noble Baroness. She is very persistent in arguing her case, and she is right to be so. That is why I am very pleased that we are taking forward the principles of the amendments in the pilots that I have laid out. The noble Baroness, Lady Hayter, and the noble Lord, Lord Harris, should be reassured that we can take this forward under current legislation, so we do not need to think about sunset clauses and whether we are putting something flawed into the Bill.

Although we are very pleased to welcome the principle of these amendments, we ask the noble Baroness to withdraw her amendment and hope to work with her in future to take this forward.

I will be grateful if the Minister will tell the Committee under exactly which parts of current legislation these pilots can be conducted. The legal advice that I have had is that it is only low-level offences. I have also been advised that breathalysers cannot be used under current legislation, so it would be helpful if she could specify which legislation they would be used under. Will she tell the Committee whether devices that detect alcohol in sweat are Home Office-approved and, if they are not, when she anticipates that approval will come through so that the pilots can start? Where will these pilots be conducted? When will they start? For how long will they be conducted? Who is funding them? Without that information, it is very difficult to accept at face value what sounds like a great idea, but we have heard it before, last summer, and I am afraid that no action has been seen since then.

I agree that alcohol does not cause domestic violence but I would be grateful if the Minister could tell us why alcohol-fuelled domestic violence is fundamentally different from other forms of domestic violence. Perhaps it is because it is witnessed by children in the family, who will bear those scars for their whole lives; at least if there is a drunken brawl out in the streets at midnight, it is not witnessed by children where their parent is being seriously injured. Therefore, I also ask for an explanation of why the Government have decided to downgrade the importance of domestic violence, which has extremely long-term effects.

I have to dispute what the noble Baroness says about downgrading the importance of domestic violence—we have not. It is because we recognise that it is a very complex and dangerous form of violence that we are separating it out from the assessment of the practicalities of this scheme in these pilots. It is something that has to be addressed across the board and in a much more complex way than whether or not you breathalyse or tag somebody and decide whether or not they have breached various conditions.

The noble Baroness has made her case extremely clear. We absolutely accept the principles. We are taking this forward in the pilots that I have mentioned. I realise there is another debate coming on. I am very happy to engage with her, as is my noble friend Lord McNally, and give her the answers to all the questions she has raised. I will not detain everybody at this point, and I hope that she will be prepared to work with us to take this further forward. As my noble friend Lord Carlile said, this is a very intractable, long-standing problem, but anything we can do to try to resolve the elements that we can, we should do; that comes overwhelmingly from people in this debate. We are taking forward these pilots—I give her that commitment—and let us discuss the details after the sitting.

I am grateful to the Minister for having responded in that way, for offering to meet me and work through all the details. I am also extremely grateful for the support that I have had from all sides of the House, unequivocally. I make it clear that I am not against the tagging process; I am not against anything that deals with this problem effectively. What I am worried about is that if these schemes are not approved this problem will be kicked into touch for yet longer, as the noble Lord, Lord Carlile, said, and we just cannot do that. Like others, I also pay particular tribute to the noble Baroness, Lady Newlove, who has spoken movingly and has committed her life to trying to bring some good out of the tragedy that she personally suffered.

With that, I will not press my amendment tonight, but I look forward to further discussions, and I must warn the Government that if I do not get satisfactory answers I intend to bring this back on Report.

Amendment 177A withdrawn.

House resumed. Committee to begin again not before 8.54 pm.