Amendment 181

Police, Crime, Sentencing and Courts Bill - Committee (7th Day) – in the House of Lords at 1:15 pm on 10th November 2021.

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The Lord Bishop of Durham:

Moved by The Lord Bishop of Durham

181: Clause 88, page 79, line 36, at end insert—“(c) make reasonable efforts, or ensure that reasonable efforts are or have been made, to ensure conditions include interventions to support the offender to desist from offending.”

Photo of The Bishop of Durham The Bishop of Durham Bishop

My Lords, I am moving the amendment in the name of my friend the right reverend Prelate the Bishop of Gloucester, with her permission, as she is, sadly, unable to be here. I declare her interest as Anglican Bishop for Prisons in England and Wales, and we are very grateful for the support of the noble and learned Lord, Lord Thomas, and the noble Lord, Lord Beith.

I should say first that, while there are many parts of the Bill with which I take some issue, I do by and large consider it a welcome feature of the Bill that it places a new emphasis and focus on diversionary and community cautions, and on simplifying the previous regime. Done well, these out-of-court disposals, with helpful conditions attached, can be an effective solution that strikes a balance between punishment, the protection of communities and supporting the offender to successfully seek restoration in their community.

However, it is an issue that the conditions attached to these cautions can be poorly conceived and become either unnecessarily restrictive or, indeed, not sufficiently rehabilitative in order to help people to avoid reoffending. This amendment is intended to improve and clarify what is already presented in the Bill by providing assurance that conditions attached to community cautions will

“make reasonable efforts, or ensure that reasonable efforts are or have been made, to ensure conditions include interventions to support the offender to desist from offending.”

That closely matches the wording in Clause 79(3), which insists on efforts to obtain the views of any victim or victims of the offence. Seeking the views of victims is a sensible objective, but it leaves this clause, “Deciding on the conditions”, rather lopsided. Attention is paid to who can set conditions and to the views of victims, but not to the most fundamental point, which is surely what impact these conditions have on the offender.

The critical point here is that community cautions are likely to be useful only if the conditions are effectively tailored to help offenders desist from offending. Key drivers of crime are poverty, mental ill-health, trauma and substance misuse. If conditions of cautions do not take steps to address those drivers, how can we reasonably expect to reduce reoffending? The alternative is simply to see the revolving door continue to spin, with the same offenders being trapped in cycles of offending, without the help they need to escape and rebuild their lives. Apart from being bad for the offender, this is obviously bad for victims and communities, who will continue to be impacted by reoffending. Only by restoring relationships and communities and providing the right support to prevent reoffending can we begin to really break this cycle.

I am very grateful to the Revolving Doors Agency for its briefings and support, and for its work with its new-generation campaigners. These are young adults with experience of the revolving door of crisis and crime, and discussions with them were around how they viewed conditions attached to cautions, what they found useful and what they did not find useful. Revolving Doors established that among the useful conditions were: attendance at drug and alcohol treatment to help break addiction cycles; meaningful, ideally accredited, unpaid work to build up skills and provide career options; family counselling sessions; and signposting to services to help with financial issues and poverty. All these conditions, critically, are designed to work with offenders to address underlying causes of their offending and provide them with meaningful alternatives that do not simply keep people trapped in the same cycles of criminal activity and the criminal justice system.

I hope that we might hear from the Minister of plans to extend and increase funding and support for such interventions, as I was rather disappointed not to see Dame Carol Black’s full recommendations for funding for drug treatment in the Chancellor’s Budget. You might also expect me to say that in the case of women’s offending we know that when a number of these things are provided through a holistic approach through a women’s centre, there are encouraging outcomes regarding reoffending.

I turn to the other aspect of conditions, which is about them sometimes being unnecessarily punitive without having any benefit. That is also highlighted by research from the Revolving Doors Agency and its work with its young new-generation campaigners in highlighting that not all conditions are useful or helpful. One campaigner told Revolving Doors of a condition where they were banned from public transport despite relying on it to get to school:

“I used to have get two buses to school, and then I was banned from public transport. How else was I meant to get to school? I was taken to court for still being on public transport.”

Other highlighted examples were conditions that were not tailored to the needs of the offender but seemed arbitrary or overly restrictive—almost as though they were being set up to fail.

One danger of the Bill as drafted is that since it is mandatory to impose conditions on these cautions, there is a risk of up-tariffing, with conditions attached that are more restrictive than necessary and actually undermine the ability of an offender to desist from crime. Indeed, the Centre for Justice Innovation noted that the Ministry of Justice’s two-tier out-of-court disposal pilot evaluation highlighted the dangers of up-tariffing within out-of-court disposals. It showed that, contrary to the principle of de-escalation, people who would have received simple cautions were given conditional cautions instead. Conditional cautions involved people having to complete more interventions than they otherwise would have done and came with the threat of enforcement in the case of non-compliance. That threat of enforcement is critical. There is little point to community cautions if the conditions are so onerous that many people end up breaching them and find themselves receiving a custodial sentence.

I stress again that the amendment looks to improve on the Bill. This clause already provides for several criteria for deciding on conditions—notably, the views of victims. It is a small and easy fix to ensure that a further criterion is to ensure that conditions make reasonable efforts to support the offender to desist from offending. I beg to move.

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Chair, Consolidation, &c., Bills (Joint Committee), Chair, Consolidation, &c., Bills (Joint Committee) 1:30 pm, 10th November 2021

It was a privilege to add my name to this amendment, which has been so ably moved by the right reverend Prelate the Bishop of Durham, speaking the words of the right reverend Prelate the Bishop of Gloucester. I associate myself with everything that has been said and particularly with the work being done by Revolving Doors and the Centre for Justice Innovation.

This particular amendment raises a problem with this part of the Bill. One can understand why putting in a condition or requirement in relation to the victims might appeal to a certain type of politician, but they forget that, if you are legislating, you need balance. Why put something in about victims without putting something in about the whole point of this, which is to try to deal with offending?

The reason that I put my name to this amendment goes to the way that the Bill has been structured. I apologise again for not being in my place last Wednesday. I am extremely grateful to the noble Lord, Lord Paddick, for moving the amendment that I put in. This point raises exactly the same problem: we have a framework Bill. We do not have the draft regulations or, more importantly, the draft code of practice.

I entirely support this reform, but I do not think that many people realise what a critical role cautions play in the operation of the criminal justice system and, as the noble Lord, Lord Paddick, has said in relation to an earlier amendment—I did not rise then because I thought that I could make the point now—the incredibly important constitutional and rule-of-law issues, which I underline. These relate to the relationship between the legislature, and how much detail it should go into on this, and the Executive—because the police are part of the Executive branch of government—and to what extent they should be allowed to punish, which has generally been the province of the courts.

I welcome these reforms because this is an important part of the sentencing regime—and it is part of it, whatever epithet one wishes to apply. But it seems to me that a much better approach to the Bill would be if this was brought together as a whole, so that we could say, “This bit ought to go into the Bill. That is dealt with in regulations. This should be dealt with in the code of practice”. We should have it all before us, so that we can make a sensible decision. I do not understand why this has not been done, but I hope that, before the Bill comes back on Report, we see draft regulations and a draft code of practice. Otherwise, we will all be plagued on Report with this type of really serious concern.

There are many more issues—the noble Lord, Lord Paddick, has raised some of them this morning—such as the point that the Minister made very eloquently this morning about being able to alter levels of fines. Of course, in an age where we are perhaps going to see a lot of inflation, that is important, but why alter the number of hours? The gravity of the sentence with which a particular person should deal ought to be fixed.

Therefore, I hope that the Minister will look at, first, putting this amendment into the Bill and, much more seriously and importantly, at bringing the draft code of practice and the draft regulations, so that we could review the whole thing and do a proper job, as Parliament, consistent with the rule of law.

Photo of Lord Beith Lord Beith Liberal Democrat

My Lords, I am very glad to support the right reverend Prelate and the noble and learned Lord who has just spoken. The right reverend Prelate gave us a very careful analysis of the reasons that such an amendment would improve Clause 88 of the Bill, and the noble and learned Lord, the former Lord Chief Justice, reminded us of the constitutional context and the fact that the way that the Bill is structured, and the sheer complexity of it, are not really very satisfactory, especially when so much related material is not available to us at this stage. I hope that note will be taken of what he said on that latter point.

My feeling was that, as drafted, Clause 88 does not cover the ground properly, and that the inclusion of the requirement in this amendment—that consideration should be given to what provisions can be made for the “offender to desist” from crime in the future—would give the clause a necessary balance; a phrase that the noble and learned Lord used. The clause’s emphasis is very much on finding the victim’s views, which is entirely appropriate but limited in scope.

It is of course relevant to remember that, very often, one of the strongest views that victims have is that no one else should have to suffer what they have and that something should be done to make sure that the person who has done it does not do anything like that again and cause that sort of harm in the future. So these two things are not in opposition to each other: it is a complementary requirement for the clause to include a direct reference to measures to try to make it possible for the individual to desist from crime. There is a wide range of measures, but, in the context of this clause, the right reverend Prelate mentioned drugs and drug treatment. Of course, alcohol is also a very significant factor in many of the sorts of crimes that we are talking about.

This brings back memories of an incident that occurred during my time in the House of Commons, when some teenagers pulled down and stole the union flag from outside my office. They then made the mistake of exhibiting it around the pubs of the town, which led to the police catching them pretty quickly. The sergeant rang me up and said, “I do not really want to issue a formal caution because one of them wants to go into the Army, and that may prevent him doing so. I suggest that they club together, pay for its replacement and all write to you to apologise”. That was the kind of practical policing that, nowadays, is so surrounded by rules and requirements that it is often more difficult to do. But it was the right solution. I had some delightful letters, most of them insisting that their families had always voted for me. But it made a sufficient impact on the individuals—it was just a minor thing—making them less likely to commit crimes in the future. That is the emphasis that we need to add into this clause—an emphasis on trying to ensure that that individual commits no further crimes in the future.

Photo of Lord Framlingham Lord Framlingham Conservative

My Lords, I am not as well versed in these matters as many noble Lords are, but, in the interest of clarity, could the Minister explain what a “diversionary caution” is?

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

My Lords, we support this amendment, but, as I have already said, we have our doubts about the whole regime. For the benefit of noble Lords who missed the midnight debate on Monday, I bring you the edited highlights, which are relevant to this group.

I quoted from the House of Commons briefing paper 9165. On the Government’s proposals on diversionary and community cautions, it says:

“the available evidence suggests the system: … may result in a further decline in … OOCDs; … is likely to cost more … is unlikely to have a major impact on the reoffending rates of offenders; and … may improve victim satisfaction but is unlikely to have a major impact.”

I have to say that the high point for me on Monday night—or was it Tuesday morning?—was the Minister’s answer to my question about how effective conditional cautions, which are the existing system of cautions with conditions attached, were, compared with simple cautions that do not have conditions attached. The noble Lord announced with glee, if I may say that in a very respectful way, that:

“As the Committee will know from previous exchanges, I am quite a fan of data.”—[Official Report, 8/11/10; col. 1577.]

The Minister then looked at his phone and a message from his WhatsApp group—it is good to see members of the WhatsApp group in the Box today—saying that, in effect, there was no data. The Government not only keep no record of how many conditional versus simple cautions are administered, just the total number of all cautions, but have no record of what kind of conditions are attached to conditional cautions. On the basis of that data void, they plan to implement a system where all police cautions will need to have conditions attached.

I also quoted from a 2018 paper by Dr Peter Neyroud, former chief constable of Thames Valley Police and now a distinguished academic, published by the University of Cambridge and commissioned by the National Police Chiefs’ Council, entitled Out of Court Disposals Managed by the Police: A Review of the Evidence. On the police attaching conditions to cautions, he said:

“The result … was a significant degree of inconsistency and a substantial number of inappropriate and un-evidenced conditions.”

The right reverend Prelate the Bishop of Durham gave us an example of, presumably, a youth who was banned from public transport, which meant he could not get to school. I continue to quote from Dr Peter Neyroud:

“Whilst the provision of further training and more guidance improved the situation somewhat, the cost of such an investment within a more general implementation of OOCD’s with conditions”— exactly what the Government are proposing—

“would be prohibitive and, in any case, did not completely resolve the problems.”

Never mind—the noble and learned Lord, Lord Thomas of Cwmgiedd, came up with a better idea: the inspectorates of the constabulary and of the CPS could ensure consistency, so that somebody in a similar situation, committing a similar offence, would have the same conditions attached, no matter where they were in the country. I am afraid not, said the Minister:

“Those two inspectorates are not regulators; they do not have power to enforce compliance.”—[Official Report, 8/11/21; col. 1576.]

Inconsistent, inappropriate and unevidenced conditions will be attached to cautions all over the country, bringing no benefit to offenders, little benefit to victims and increased costs to the criminal justice system. That is what this part of the Bill does.

We support this amendment, which should also apply to diversionary cautions, but the omens are not good that the police will know what they are doing when it comes to applying conditions to support the offender to desist from offending. There is serious doubt that, even when they do, the conditions will have any effect on reducing reoffending.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice), Shadow Spokesperson (Home Affairs)

My Lords, this has been a wide-ranging debate. When the right reverend Prelate introduced it, he made a general plea in favour of cautions and on why his amendment was appropriate. He spoke of the benefits of cautions and what they need to be effective, and of the revolving door of crisis and crime and of a holistic approach. He particularly gave the example of women offenders, for whom a holistic approach is appropriate to reduce reoffending. Then he went on to give examples of why quite a lot of cautions fail—by giving too many conditions. My experience, through following both cautions and sentences through court, is that the more conditions you put in place, even if they are in place for the best of reasons, the more likely you are to have a breach and to re-enter that cycle, coming back to court or to the police when conditions are breached.

My central point is that out-of-court disposals are a difficult area. The Government and previous Governments have a lot of experience in trying to come up with an appropriate regime for out-of-court disposals. As we have heard on the Bill—I agree with pretty much all the points made by the noble Lord, Lord Paddick—we have another cautions regime, which we hope will work in some way. I particularly noted the point made by the noble and learned Lord, Lord Thomas of Cwmgiedd, about the need to see draft regulations or a draft code of practice to ensure consistency across the country.

I close by drawing an analogy between the youth regime and the adult regime we are talking about here. We have seen far more extensive introductions of cautions in the youth regime over the last few years, which has seen far fewer youths being brought to court. That is possibly a good thing, but the consequence is that the youths who come to court are often charged with far more serious offences. That may be right in some sense, but we see repeated interventions for youths with conditional cautions, simple cautions or other out-of-court disposals, a multitude of times, until eventually the youths end up in youth court.

I support the overall objective of having an effective caution regime, but I share the scepticism of the noble Lord, Lord Paddick, about the reasons for putting this regime in place. One should not be misled into thinking that any particular regime would immediately have better results than previous regimes or the current regime.

Photo of Lord Wolfson of Tredegar Lord Wolfson of Tredegar The Parliamentary Under-Secretary of State for Justice 1:45 pm, 10th November 2021

My Lords, I hope it is in order to pick up one point that was put to me at the end of the last group and say a word on it. I hope the Committee will forgive me. It goes to all groups, in some ways, because it is about how legislation is put online. Legislation.gov.uk has a facility to look at the original texts and unscramble the later amendments, so to speak. A point that occurred as the noble Baroness, Lady Hamwee, was speaking was whether one could put in hyperlinks to take you through different pieces of legislation. I am happy to look into that, but I now turn to this amendment.

My noble friend Lord Framlingham asked what a diversionary caution is. To try to sum up a large part of the Bill in about three sentences, I say that there is going to be a lower-tier disposal called a community caution and an upper-tier disposal called a diversionary caution. Conditions must be attached to both, aimed at one of three objectives—rehabilitation, reparation or punishment. Restrictive conditions can be set, where they contribute to reparation or rehabilitation. In that regard, there is a similarity to the existing conditional caution regime. I hope that answers the question.

I now turn to the substance of the amendment in the name of the right reverend Prelate the Bishop of Gloucester—moved by the right reverend Prelate the Bishop of Durham—alongside the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Lord, Lord Beith. It goes to the primary objective of the new two-tier statutory framework, which I have just explained, to provide, as a requirement of the community caution, meaningful court conditions to help an offender stop offending.

I am grateful for the broad support, as a matter of principle, of the right reverend Prelate for the aims of the Bill on out-of-court disposals. I respectfully agree with the point made by the noble and learned Lord on the importance of the caution regime in the criminal justice system. I also agree with the point made by the noble Lord, Lord Ponsonby, that cautions must be carefully considered to avoid the syndrome of repeated interventions.

While the amendment is obviously well intentioned, the Bill already makes provision for the purpose that underpins it in Clause 80 on diversionary cautions and Clause 89 on community cautions. The Bill asks the relevant person to focus on the position of the offender. Of course we all agree that one has to look at the position of the victim, but I agree with the noble Lord, Lord Beith, that one must also look at the offender. The Bill already does that.

While I agree with the broad thrust of the purpose of the amendment, I suggest that it is unnecessary. That is because, aside from the punitive option of a financial penalty, the conditions of both the diversionary and the community caution must be aimed at rehabilitation or reparation, thereby addressing the underlying causes of the offending. Importantly, the cautions enable referrals to support services where relevant as conditions of the disposal. Referrals at this pretty early stage of the criminal justice system could include referrals to relevant intervention services such as substance misuse services, mental health treatment providers or gambling addiction, or restorative justice referrals. All those help to address the underlying causes of offending behaviour and so help to reduce reoffending or the escalation of offending behaviour.

As I have said, a code of practice will accompany the legislation. It will be drawn up in collaboration with stakeholders and subject to a formal public consultation and to an affirmative statutory instrument. I respectfully agree with the noble and learned Lord, Lord Thomas, as he would no doubt expect me to, as to the fundamental importance of the rule of law in this and, indeed, other areas. I wonder whether actually the police are best viewed as being seen as part of the Executive; we could probably have an interesting debate on that. The answer might be that it depends on the purpose for which you are using the principle of the rule of law as to what exactly it would encompass.

To give the noble and learned Lord a bit more information, the way that the code of practice will be put together is that there will be an informal stakeholder engagement exercise with police forces, the National Police Chiefs Council, police and crime commissioners, the CPS and relevant third-sector organisations, which will help with drafting. We will then have a formal public consultation, which will take place next year. Importantly, the power to issue the code and the regulations is contained in the clauses of the Bill, so we will not have the power to do that until the Bill receives Royal Assent and is commenced.

I want to pick up the underlying points made by the noble Lord, Lord Paddick. I hope he will not take it amiss if I do not respond to those. There is a clear conceptual gulf between us, if I may put it that way, as to the purpose of the regime and whether it is soundly based. I set out the Government’s position on that earlier. I am not sure it is helpful if I just repeat those words each time because there is that gulf between us and I am not sure it is going to be bridged. I hope the noble Lord will therefore not take it amiss if I do not respond in detail.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

It is not a conceptual gulf. It is a question of where the evidence is that cautions with conditions attached are more beneficial than cautions without conditions attached. I can answer that question for the Minister: there is no evidence, because the Government do not collect any. That is coupled with the fact that this House will be asked—this Committee is debating it now—to sign a blank cheque for all this when the detail has not been worked out. There will be public consultation and consultation with stakeholders, but we have no idea what this is going to look like in the end. That is no way for this House to proceed with this legislation.

Photo of Lord Wolfson of Tredegar Lord Wolfson of Tredegar The Parliamentary Under-Secretary of State for Justice

Well, we did have that exchange. I went through the way that it has been piloted in various police forces, and we had an interesting exchange. I am happy to look again at the record and see whether there is anything else that I can add, but I am not sure that will necessarily persuade the noble Lord in any event. Again, I am not sure it is helpful to go through those fundamental points each and every time we come to one of these amendments.

I hope I have responded substantively—and, I hope, substantially—to the amendments tabled by the right reverend Prelate. For the reasons that I have set out, I ask him to withdraw them.

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Chair, Consolidation, &c., Bills (Joint Committee), Chair, Consolidation, &c., Bills (Joint Committee)

Before the noble Lord sits down, and to go back to the fundamental point about the code of practice and the regulations, is there not even a framework or some outline that we can look at so we could work out what is necessary in primary legislation and what is necessary in a code of practice? I must say that it is wholly contrary to the rule of law for a democratically elected body—I include the whole of Parliament in that—to pass legislation that has not been properly gone into.

Here we are dealing with the liberty of the subject. I think that most people do not appreciate the seriousness of a caution. When I was Lord Chief Justice, we had a number of cases where people found out years later the problem with having accepted a caution. In one case, for example, a person who was young and had no convictions of any kind could not go to America. There are other cases where a caution for a minor offence makes you into a “person of bad character”. These are matters that go to the liberty of the subject and they are of fundamental importance.

It is quite contrary to the rule of law to ask us to pass legislation for which there is no urgency. As the noble Lord, Lord Ponsonby said, this is a long-standing problem. Could the Minister not reconsider? I entirely sympathise with the civil servants at the MoJ because they are hard-working. Of course, they have to work hard because of all the Government’s cuts to the Ministry of Justice; they are not responsible for that and nor is the Minister, who I am sure would like as much money as possible. Could we not, in this vital area of the liberty of the subject, do some proper work on it rather than wasting a lot of time debating principles? It would be so much more efficient, on an issue that is not urgent, if we could have a draft, a framework or something to look at.

Photo of Lord Wolfson of Tredegar Lord Wolfson of Tredegar The Parliamentary Under-Secretary of State for Justice

My Lords, of course I understand the point made by the noble and learned Lord. We could have an interesting debate about whether that is properly encompassed in the phrase “rule of law”, but I take the underlying point that he makes. I have sought to set out where the code of practice would be relevant, where the Act ends and the code of practice begins. I am happy to have a further discussion with him on that point.

I agree that cautions are an important part of the criminal justice system. They can have consequences, as the noble and learned Lord set out, and not being able to go to America is just one of them. That is why in a later part of the Bill, which we will come to, the question of when a caution is spent is so important. We have sought to build that into the Bill, which I hope meets, at least in part, the point that he makes. I am happy to discuss this point with him further.

Photo of The Bishop of Durham The Bishop of Durham Bishop

I thank the Minister for his substantive and indeed substantial reply. The right reverend Prelate the Bishop of Gloucester will certainly read Hansard carefully and decide whether this is a subject that we will come back to. My observation would be that part of the purpose of the clause was to recognise that the offender needs to be involved in considering whether the conditions will help them not to reoffend, and I am not sure that is covered in the rest of the Bill. That would be the reason for coming back.

I note the involvement of the third sector in the production of a code of practice. I agree that I wish that we at least had a draft. I hope that the Centre for Justice Innovation, along with Revolving Doors, would be two of the organisations involved in that process, because the work they do is really good. At this stage, though, I beg leave to withdraw the amendment.

Amendment 181 withdrawn.

Clause 88 agreed.

Clause 89: Rehabilitation and reparation conditions

Amendment 182 not moved.

Clause 89 agreed.

Clause 90: Financial penalty conditions

Amendments 183 to 186 not moved.

Clause 90 agreed.

Clauses 91 to 94 agreed.

Clause 95: Code of practice

Amendment 186A not moved.

Clause 95 agreed.

House resumed. Committee to begin again not before 3 pm.