Intermittent Custody: Amendments of Part 12 of the Criminal Justice Act 2003

– in the House of Lords at 6:30 pm on 11th March 2004.

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1 The Criminal Justice Act 2003 is amended as follows.

2 In section 244 (duty to release prisoners), in subsection (3)—

(a) in paragraph (c), for the words from "which is not" to "section 183(3)" substitute "which for the purposes of section 183 (as read with section 263(2) or 264A(2) in the case of concurrent or consecutive sentences) is not a licence period";

(b) in paragraph (d), after "consecutive sentences" insert "none of which falls within paragraph (c)".

3 In section 246 (power to release prisoners on licence before required to do so), in the definition of "the required custodial days" in subsection(6)—

(a) in paragraph (b), after "custody" insert "which are consecutive";

(b) at the end of that paragraph insert ", or

(c) in the case of two or more sentences of intermittent custody which are wholly or partly concurrent, the aggregate of the numbers so specified less the number of days that are to be served concurrently;".

4 In section 249 (duration of licence), at the end of subsection (3) insert "and subsection (2) has effect subject to section 264A(3) (consecutive terms: intermittent custody)".

5 In section 250 (licence conditions), in subsection (7), for "and section 264(3) and (4) (consecutive terms)" substitute ", section 264(3) and (4) (consecutive terms) and section 264A(3) (consecutive terms: intermittent custody)".

6 In section 264 (consecutive terms), in subsection (1), after paragraph (b) insert ", and

(c) none of those terms is a term to which an intermittent custody order relates."

7 After that section insert—

"264A CONSECUTIVE TERMS: INTERMITTENT CUSTODY

(1) This section applies where—

(a) a person ("the offender") has been sentenced to two or more terms of imprisonment which are to be served consecutively on each other,

(b) the sentences were passed on the same occasion or, where they were passed on different occasions, the person has not been released under this Chapter at any time during the period beginning with the first and ending with the last of those occasions, and

(c) each of the terms is a term to which an intermittent custody order relates.

(2) The offender is not to be treated as having served all the required custodial days in relation to any of the terms of imprisonment until he has served the aggregate of all the required custodial days in relation to each of them.

(3) After the number of days served by the offender in prison is equal to the aggregate of the required custodial days in relation to each of the terms of imprisonment, the offender is to be on licence until the relevant time and subject to such conditions as are required by this Chapter in respect of any of the terms of imprisonment, and none of the terms is to be regarded for any purpose as continuing after the relevant time.

(4) In subsection (2) "the relevant time" means the time when the offender would, but for his release, have served a term equal in length to the aggregate of—

(a) all the required custodial days in relation to the terms of imprisonment, and

(b) the longest of the total licence periods in relation to those terms.

(5) In this section—

"total licence period", in relation to a term of imprisonment to which an intermittent custody order relates, means a period equal in length to the aggregate of all the licence periods as defined by section 183 in relation to that term;

"the required custodial days", in relation to such a term, means the number of days specified under that section."

On Question, amendments agreed to.

Clause 18 [General functions of Commissioner]:

Photo of Viscount Bridgeman Viscount Bridgeman Conservative

moved Amendment No. 72:

Page 11, line 13, after "practice" insert ", including not causing further distress,"

Photo of Viscount Bridgeman Viscount Bridgeman Conservative

My Lords, in moving this amendment, I shall speak also to Amendments Nos. 73 and 74.

The code of practice aims to ensure effective delivery of services to victims, witnesses and those who experience the negative effects of crime. We believe that agencies have a positive duty not to cause further distress to such people. The commissioner should therefore have a vital role to play in preventing organisations from causing further distress to victims and witnesses. A term is used by organisations working to help victims and witnesses when statutory, voluntary and private sector organisations inadvertently cause further distress to victims. It is known as secondary victimisation. I shall quote an excerpt from the European Forum for Victim Services publication, The Social Rights of Victims of Crime published in 1998. It states:

"Research and professional experience shows that secondary victimisation, generated either by institutions or individuals, is often experienced by victims in the aftermath crime. Secondary victimisation involves a lack of understanding of the suffering of victims which can leave them feeling both isolated and insecure, losing faith in the help available from their communities and the professional agencies. The experience of secondary victimisation intensifies the immediate consequences of crime by prolonging or aggravating victim's trauma; attitudes, behaviour and acts or omissions can leave victims feeling alienated from society as a whole".

Victim Support suggests that the following case study is an example of secondary victimisation. I know that the hour is late, but I hope that your Lordships will permit me to mention this, because it is pertinent to this amendment. A woman who happened upon a street fight and intervened to stop the perpetrators of violence and protect the victim was herself attacked by the perpetrators. After the attack she went to the police to report her injuries and the attack. The police explained that there was nothing they could do because they believed that they would not be able to apprehend the perpetrators of the crime.

The police failed to take a statement, record the time, refer the victim to the health service or victim support services or to explain that under the Criminal Injuries Compensation Scheme she may be entitled to be compensated for her injuries. The victim felt dissatisfied with the service provided. She also felt very hurt and confused by the agency's offhand response. That aggravated the effects of the crime on her. It is suggested that the commissioner should also have a role in preventing this type of secondary victimisation.

We believe that including the duty to work towards "preventing further distress" goes hand in hand with the commissioner's Clause 18(1)(a) duty to promote the interests of victims and witnesses. The amendment seeks to ensure that the commissioner plays an effective role in preventing organisations committing acts or making omissions that aggravate the effects of the crime on victims and witnesses.

The objective of Amendment No. 73 is to probe further the role and remit of the commissioner and his status. It would ensure that one of the duties of the commissioner would be to pay particular regard to the sufferers of domestic abuse and their children. We have remarked in earlier debates about the nature of domestic violence—that definitions sometimes erroneously miss out a reference to children. The amendment also raises questions about how the commissioner will work with the other commissioners, particularly with the Children's Commissioner in this case. We referred to that point in the previous group of amendments.

So far, we have only the Children's Commissioner in Wales, but the Government propose to extend the work of commissioners for children to other parts of the United Kingdom. There is a danger that the bureaucracy will get out of hand. One sign of good practice in such matters is a good liaison between the commissioners, who have similar powers and objectives. It is for that reason that Amendment No. 73 requires the victims' commissioner to liaise with the children's commissioner about the needs of children who may be witnesses or victims. I would welcome an assurance from the Minister that the Government anticipate that the Children's Commissioner will liaise closely with the Victims' Commissioner.

Amendment No. 74 concerns the general function of the commissioner to keep legislation under review. Again, it refers to the joined-up role that the commissioner will have. Since some victims' rights are already enshrined in legislation elsewhere and the commissioner's remit goes beyond both the current code of practice and the criminal justice system, we hope that the commissioner is also able to ensure delivery of victims' rights in accordance with legislation currently in effect.

A particular example has just been handed us by Victim Support, in relation to the current legislation that enshrines victim's rights between the Housing Act 1996 as amended by the Homelessness Act 2002. The Homelessness Act extended the duty on local authorities to accept people made homeless through violence as being in priority need. That is an example of Parliament legislating to enhance victims' rights, where Victim Support has voiced concern that implementation is currently lagging behind statute. The commissioner will be well placed to draw attention to areas such as that, where legislation has not been fully implemented and victims' rights are not being fully observed. I beg to move.

Photo of Lord Renton Lord Renton Conservative

My Lords, although the amendments introduced by my noble friend at first sight look rather technical, they are worthy of acceptance by the Government, especially Amendment No. 73. I sometimes feel that when legislating, we should pay particular attention to the need for the protection and treatment of children. That is what Amendment No. 73 aims at. It is really rather important.

Photo of Lord Eden of Winton Lord Eden of Winton Conservative 6:45 pm, 11th March 2004

My Lords, I am inspired to intervene simply because the comments of my noble friend on the Front Bench rang a bell regarding an experience that I had. I hope that it is reasonably relevant to the amendments under consideration, although I realise that it does not trespass upon matters dealing with the commissioner.

In the light of the story that my noble friend told about a person who went to the aid of the victim of an assault and was in turn assaulted, I emphasise that attention must be given, particularly in court proceedings, to the position of the victim who testifies at the trial of the accused. I went through a similar experience, so I can tell noble Lords that it can be very confusing if a victim turns up to give evidence at a trial, having been invited to do so by the prosecution, only to find himself or herself subjected to fairly heavy cross-examination. Certainly, in my case, that cross-examination made me feel that I was almost in the position of being the accused.

Where a victim goes forward to give evidence describing the circumstances of the incident—in this case, an assault had taken place—that person should not be treated as a hostile witness in the court. Touching obliquely on my own case, although I believe that the accused had been correctly identified in a video parade, and despite the fact that the detailed circumstances of the assault had been given very carefully under cross-examination, on two separate occasions the jury was not able to come to any conclusion.

There is also the case where the accused advises lawyers who are able to protract proceedings, extending them over more than one trial—at considerable inconvenience to the victim who is ready to give evidence. All those matters must be borne in mind when considering the position of victims of crime. Courts would be well advised to take that into account.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, we very much understand that. Regrettably, a victim is a victim not only when the incident occurs; he or she can sometimes feel victimised by the process, if it is not handled appropriately and well. For that reason, the Government have made strenuous efforts to ensure that victims are given the sort of support and preparation that may assist them to deal with the process. From the noble Lord's description, often the worry is that the victim does not know what will happen or what might happen.

We have created a website that victims and witnesses can access to look at the process. We are also providing, with the help of voluntary agencies including Victim Support, a support system that will take people through the system, from the very beginning when they report and afterwards. Sometimes the effect on the victim will last long after the case is over, sometimes well after the offender has served the sentence. I reassure the noble Lord that we very much understand that.

I welcome the opportunity provided by this amendment to state categorically that we too believe that the prevention of or, at the very least, the reduction of, secondary victimisation is likely to be high on the list of the commissioner's priorities. Too often—it is a matter of regret—agencies are insensitive to the needs of victims. We believe that we are tackling this through the terms of the code of practice with its key themes of information, advice, protection and support. But there are other areas, such as those highlighted by the noble Viscount, Lord Bridgeman, where clearly more still needs need to be done, and the commissioner will have an important role in promoting and spreading good practice and, quite frankly, rooting out bad practice.

However, we take the view that we do not need to specify this on the face of the Bill. Clauses 18(1)(a) and 18(1)(b) already refer to the commissioner's general duty to promote the interests of victims and witnesses and to take appropriate steps to encourage good practice. We believe that this is sufficient to enable the commissioner to address this issue actively.

I hope that this will be sufficient reassurance for the noble Viscount, and that he will feel able to withdraw the amendment.

I turn to Amendment No. 73, also spoken to by the noble Viscount, regarding the specific mention of victims of domestic abuse, child victims and witnesses. The noble Lord, Lord Renton, is right to say that matters regarding children will always excite the keenest attention among us all. I need to be clear that the intention of this legislation is to introduce rights for all victims of crime. We are not looking to create a hierarchy of victims, attaching greater importance to some types of victims than others. There is no doubt that victims of domestic violence and child victims are especially vulnerable but victims of sexual assault or bereaved families can be seen as equally or, at times, more vulnerable. We see the commissioner's role as championing the cause of all victims. To introduce reference to victims of specific crimes is unnecessary and potentially divisive.

I agree, as I acknowledged when the matter was raised at Second Reading, that the commissioner should establish effective links with the planned new children's commissioner and that remains the policy intention. Given that the victims' commissioner is likely to liaise with a number of bodies, and on the same principle as not wishing to identify particular groups of victims, we do not think it is necessary to refer specifically to the children's commissioner in the legislation.

As for the victims' commissioner reviewing the operation of legislation affecting victims and witnesses, this is a role that we anticipate that he or she will carry out but, again, we consider it unnecessary to spell this out on the face of the Bill. The functions of the commissioner are broadly set out in Clause 18(1) and (2), and we believe that this is sufficient detail to enable the commissioner to draw up an effective work plan when he takes office. We think that that breadth is helpful. We would not wish improperly to impede the proper investigation and comment that the victims' commissioner may choose to make. I reassure noble Lords that we want the victims' commissioner to be active. I am sure that whoever is appointed is bound to be vocal. We want to be very careful to listen to everything that is said by such a commissioner on behalf of all victims.

On these grounds, I must resist these amendments, if I have not made that absolutely clear.

Photo of Viscount Bridgeman Viscount Bridgeman Conservative

My Lords, I am particularly grateful to the Minister for specifically saying that the Government are aware of the duty of the victims' commissioner to liaise with the children's commissioner. I shall read what the Minister said very carefully. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 73 to 75 not moved.]

Clause 23 [Disclosure of information]:

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, Amendments Nos. 75A and 76A seek to remove subsection (7) and amend subsection (8) of Clause 23, about the disclosure of information between criminal justice agencies for the purposes of compliance with the victims' code of practice and other duties listed in subsection (2).

Subsection (7) was originally included as its intention was to override any common law duties of confidence which criminal justice agencies might owe to defendants and others. However, the parliamentary Joint Committee on Human Rights has criticised Clause 23 because it contains no explicit provision to state that the Human Rights Act 1998 is not being overridden. On the other hand, we have included subsection (8), which makes it clear that no exchange of information can take place which contravenes the Data Protection Act 1998.

Removing subsection (7) will prevent any ambiguity regarding the Human Rights Act. We have concluded that the existence of a statutory authority to disclose will be sufficient to override common law duties and we do not need to go as far as the provision in subsection (7), which also overrides statutory duties of confidence.

We think it best to retain the reference to the Data Protection Act because there is a good deal of confusion about its operation—we have spoken about that confusion in the past—and we want to make it clear that it continues to apply. The fact that information is disclosed in compliance with the code, and that Clause 23 provides a basis for the disclosure, will go a long way to meeting the requirements of the Data Protection Act. However, it is our policy that any future revisions of the code of practice should be compliant with the Data Protection Act, and that agencies should continue to comply with those of its requirements which are not met by virtue of disclosure taking place under a statutory authority.

I hope that noble Lords are content with that explanation. I beg to move.

On Question, amendment agreed to.

Photo of Lord Triesman Lord Triesman Lords in Waiting (Whips)

My Lords, I beg to move that consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.

House adjourned at three minutes before seven o'clock.