Clause 5

Criminal Justice and Immigration Bill – in a Public Bill Committee at 1:30 pm on 25th October 2007.

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Responsible officer and offender: duties in relation to the other

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I beg to move amendment No. 5, in clause 5, page 3, line 45, after ‘offender’s’, insert ‘, or his immediate family’s,’.

The amendment relates to the wording in subsection (3), which states:

“In giving instructions in pursuance of a youth rehabilitation order relating to an offender, the responsible officer must ensure, as far as practicable, that any instruction is such as to avoid...any conflict with the offender’s religious beliefs”.

It seems to me that when an young offender’s religious beliefs are placed in a position of conflict as a result of the making of the order, it will, or it could, impact equally on his family. Under the Bill as drafted, the court may well say that the offender’s religious beliefs are incorporated in his wider family’s beliefs in any event, but I think that the court ought to be careful to inquire about the nature of the family structure of the individual offender. If the offender is 13, 14 or 15, the court should consider whether they cannot go to an attendance centre on a Friday evening, a Sunday morning or at some other time. If the offender is a minor, as he surely will be, the ability of the family to co-operate with the court and to ensure compliance with the order is something that we ought to consider. That is the simple point, and I hope that the Minister can address it.

Photo of David Heath David Heath Shadow Leader of the House of Commons

I support the hon. and learned Gentleman’s contention. It has some force in the case of the youngest offenders—those under 16—as it would seem entirely appropriate to take into consideration the family’s religious beliefs. We ought to assume that young persons aged over 16 have formed their own religious beliefs and are capable of answering the question properly themselves, but it is not unreasonable for an inquiry to be made about the family’s religious background in the case of younger offenders. I hope that the Minister will be sympathetic to that view.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

I want to make two points in discussion with the hon. and learned Member for Harborough and the hon. Member for Somerton and Frome. First, the responsible officer’s first duty is to the young person. As the hon. and learned Gentleman has pointed out, under subsection (3)(a), potential conflicts with an offender’s religious beliefs should be discussed as part of the consideration of such matters.

The amendment states “family”. It is possible for a family—however that is defined—to have different religious beliefs within it. It is quite possible for Catholic to marry Protestant, for Jew to marry Catholic and for Muslim to marry Church of England, and it is also possible to have different emphases within that. That might be confusing to the individual. The individual who is before the responsible officer may have strong religious beliefs, and they will be taken into account. We must avoid the potential for confusion.

The hon. and learned Gentleman’s amendment refers to the family, but I do not have a definition of what the family means in that context—

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

It says “immediate family”.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice 1:45 pm, 25th October 2007

I am still not sure what that means. I am making two points. The first is about the definition of family and the second is about the fact that a family may have different religious beliefs within it, and that the duty of the responsible officer is to the young person. I do not believe that it is practical to extend clause 5 to include the religious beliefs of the offender’s family. The point that I would also make—I referred to this earlier—is that when sentencing, the court has to take into account the young person’s family circumstances before it makes a youth rehabilitation order. In practice, that means that a youth offending team would have to make an examination of the offender’s family and some of the consequences and details that might impact upon the offender and sentence in that regard. If, as the hon. and learned Gentleman suggests, we impose a mandatory requirement in the legislation, it would cause some difficulties. The approach in the Bill is also consistent with similar provisions in section 217 of the Criminal Justice Act 2003 relating to the adult community order. I hope that those points have some resonance with the hon. and learned Gentleman.

Photo of Charles Walker Charles Walker Conservative, Broxbourne

Will the Minister give some examples in which the offender’s religious beliefs would need to be taken into account? What sort of circumstances would come into play?

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

Let me give one example. The individual might have to work on a religious holiday. It might be a religious holiday for one individual but not for another. That is one example of how that could work in practice. I do not think that the amendment is workable because there could be different religious beliefs in the family. It is also possible in these sad and troubled times that there could be divorce and separation within the immediate family. There could be conflicting requirements within the religious beliefs of the family in that circumstance. I accept that the hon. and learned Gentleman may not find such arguments helpful, but I am proposing—as I  hope I have done with my remarks—that the interests of the young person are central, and that the assessment will be made around those interests and the family circumstances. In doing so, that requirement will be brought forward, but not in a mandatory legislative capacity.

Photo of Charles Walker Charles Walker Conservative, Broxbourne

Am I right in assuming that the court will determine whether these religious beliefs are genuine? It would be quite easy for someone to say, “I don’t do Sundays because I am a Christian,” when, in actual fact, they have never been seen in church and never worshipped before. It is just a good get-out clause.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

The assessment has to be that the requirements are reasonable. The Bill states:

“In giving instructions in pursuance of a youth rehabilitation order relating to an offender, the responsible officer must ensure, as far as practicable, that any instruction is such as to avoid—

(a) any conflict with the offender’s religious beliefs,”

For example, if the offender is an orthodox Jew and the rehabilitation order says that community work should be undertaken on Friday, that might be in conflict with the offender’s religious beliefs. That may be something that the court wants to take into account. We want to build the order around its deliverability to ensure that the offender’s beliefs are taken into account. If we extend the measure to the wider family, we could have a circumstance in which the offender might be an orthodox Jew who has lapsed, but the parents may be orthodox Jews who wish to see their religious beliefs taken into account. There are discussions that we can have around that, but the key thing is that the duty of the responsible officer is to the young person. We are trying to avoid conflict with religious beliefs but not, as the hon. and learned Member for Harborough has put it, to extend that to the wider family.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

The Minister’s responses were brave. The suggestions that the measure would cause problems with families of mixed religion and that the Minister does not really understand what the words “immediate family” mean are bordering on desperate. Anyhow, I shall take the Minister at his word and assume that when the Bill becomes law the words

“any conflict with the offender’s religious beliefs” will require a court to take into account the religious circumstances surrounding the individual presented before it.

The Minister mentioned a lapsed orthodox Jew whose parents none the less were still observing orthodox Jews. I do not want to get too silly about this. Let us assume that this lapsed orthodox Jew under the age of 16 was not worried about working on the Sabbath, but his parents could not physically take him in their car to the place where he had to work on that day. We need to think about such a practical problem. Whether we think about it via the vehicle of subsection 3(a) as currently drafted or, as I have suggested, through inserting “or his immediate family’s”, I do not much mind, so long as somebody thinks about it.

On that basis, and given that I do not want to spend too much time on the Minister’s response, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I beg to move amendment No. 6, in clause 5, page 4, line 5, leave out subsection (4).

The arguments behind the amendment, which would delete subsection (4), are exactly the same as those I made in relation to amendments Nos. 3 and 4 to clause 4. I have no doubt that the Minister’s answer will be exactly the same as well.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

In the spirit of co-operation and speed, may I refer the hon. Gentleman to the reply that I gave some moments earlier?

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I refer the Minister to the request that I made to him in relation to amendment No. 3, which was that I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I beg to move amendment No. 7, in clause 5, page 4, line 8, at end insert ‘written’.

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

With this it will be convenient to discuss the following amendments: No. 8, in clause 5, page 4, line 11, after ‘officer’, insert ‘in writing’.

No. 173, in clause 5, page 4, line 11, at end insert ‘within a reasonable period of time’.

No. 15, in clause 5, page 4, line 11, at end insert—

‘(5A) Any instructions given in accordance with subsection (5)(a) must be recorded in the offender’s probation records.

(5B) A copy of instructions recorded in accordance with subsection (5A) shall be provided to the offender on request.’.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

In amendments Nos. 7 and 8, I seek to add a requirement that the instructions should be given to the offender in writing. I made this point a moment ago. The Minister has indicated that the normal practice is that such instructions should be given in writing. I am not one for over-legislating but, if it helps, let us stick it in. If we can be assured that written instructions are given, we need not bother.

Under amendment No. 15, which is of greater substance, first, I wish to ensure that

“Any instructions given in accordance with subsection (5)(a) must be recorded in the offender’s probation records.”

Secondly, a copy of the instructions should

“be provided to the offender on request.”

I am not trying to over-bureacratise the system and add more paperwork to it, hence my suggestion that a copy of the instructions should only be given to the offender if he asks for it. If we are to have end-to-end management of offenders, which was the philosophy behind the setting up of the National Offender Management Service and which was touched upon during our discussions on the Offender Management Act 2007, it is important that we have an audit trail. In that way, a supervisor—whether from within the national probation service or from one of the commercial or third sector organisations that will be involved following the passing of the 2007 Act—should be able to see the records and say, “This is what he has been asked to do; this is what he has not done.” We need an audit trail of breaches and so forth—a trail of instructions and of the offender’s behaviour.

Too often, as we know from the current state of the prison estate, records do not follow prisoners, and there is a tremendous amount of churning of prisoners from one prison to another. Those on remand in prison can be taken to court in the morning, with no guarantee of being returned to the same prison. Nor is there any guarantee that the records attached to that person will follow—and if they do follow they are frequently late, which means that medical and other forms of rehabilitation are that much more difficult to achieve. That results in a waste of money, because the people looking after the prisoners have to start all over again.

That is the broad point that I want to ensure is catered for by amendment No. 15.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

I shall speak briefly to amendment No. 173. It seeks to add to the requirement in subsection (5)(b), that the offender

“must notify the responsible officer of any change of address”,

the rider that it should happen

“within a reasonable period of time”.

The underlying problem has to do with the chaotic lives of many young offenders. I am sure that many hon. Members have come across such problems in their advice surgeries. Those young persons who are subject to the criminal justice system will not always have a particularly clear address—they might live with one parent for some parts of the week and the other parent for the remainder of the week, or move between hostels and other sorts of accommodation.

Our concern is that because the clause is enforceable under subsection (6) as if it were part of the order, and therefore subject to all the enforcement procedures of clause 2, it may become a sort of “gotcha” clause for a particular group of young people. Because of the way that they live their lives, it is a provision that they are almost bound to violate. For example, requirements can be imposed under antisocial behaviour orders that the defendant cannot but violate, which will trigger enforcement. I would not want the clause to have a similar characteristic for a particular group of offenders.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

I shall deal first with amendments Nos. 7, 8 and 15. I hope to reassure the hon. and learned Member for Harborough that his desire for matters to be placed in writing is already covered by the guidance issued to the Youth Justice Board on the national standards. They already require a responsible officer to produce an agreement with the offender, in writing and signed. It will include a number of conditions, such as the criteria for acceptable or unacceptable absence, the right to be treated fairly and with respect, and the requirement to behave acceptably and to have adequate and proper timekeeping. The Youth Justice Board national standards cover the point raised by the right hon. and learned Gentleman, and I hope that he will withdraw the amendment.

As for notification by an offender of a change of address, the priority must be the immediacy of the notification. In my view, it is essential that the responsible officer knows as soon possible of any change of address. That is best done by telephone or text message. Placing a requirement to notify the change of address in writing would also potentially be difficult for young people who have literacy problems.

The hon. and learned Gentleman also tabled an amendment that would require instructions to be recorded in offenders’ records and would require those records to be disclosed upon request. Youth offending teams and other responsible authorities already routinely keep records pertaining to young people, not least because they need to be produced by the court. If the hon. and learned Gentleman wishes that young people should be able to see their records, that could be dealt with quite properly under current data protection procedures and does not need to be reiterated in the Bill.

The hon. Member for Cambridge spoke to amendment No. 173, which is a reasonable amendment. Although I wholly endorse the sentiments expressed in the amendment, if the hon. Gentleman refers to subsection (5)(b) he will see that there is a requirement for the responsible officer to be notified of any change of address by the young person. As he mentioned, if such notification were not provided, that would be a prima facie case for a breach of order. I wish to see speedy notification of changes of address, but if we set out a time scale in the Bill it may lead to the consequences that the hon. Gentleman has mentioned. I would like to allow the responsible officer to have discretion. They will have to set out for the young person the obligations contained in the clause and make it clear that notification of any change of address is a key part of the order that could lead to a breach. Any instruction given must be carried out as quickly as is practicable by the young person, but I am not persuaded that putting a time scale in the Bill will assist the process.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice 2:00 pm, 25th October 2007

I am glad that the Minister understands the underlying problem. There needs to be some indication, by using a word such as “reasonable” or “practicable”, which were used by the Minister, that the notification requirement should not be enforced in a rigid way. That indication does not have to be in the Bill, but it could be; I presume that there will be some guidance for that enforcement at some point and perhaps it should go in there. However, either through the Minister’s remarks today or through a change to the Bill, the Government’s precise intention should be made clear. I take the hon. Gentleman’s point about strict timetables.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

As ever, I am happy to reflect on these matters. However, the Bill has been framed to make it clear to the responsible officer—and I hope, through the responsible officer talking to the offender—that the offender has a clear duty to provide notification of a change of address. Obviously, it is a duty that, if delayed for several weeks or months, would be a clear breach of the order and would require action to be taken, which would create difficulties for the offender. Putting a time scale in the Bill might militate against the flexibility that the hon. Gentleman wishes to see. At the same time, the Bill must put a duty on the offender and the responsible officer to take account of the need to have an up-to-date address for the offender.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

The Minister and I do not disagree about this very much, but surely the real point is that if the responsible officer’s lack of knowledge of the address  interferes with the requirements of the order, there ought to be enforcement. Enforcement should be concerned with the purpose of knowing the address, not just the mere technical fact of a change of address. If it were written into guidance that officers should bear in mind the purpose of the provision, rather than just the technicalities of it, that would deal with the point.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

The hon. Gentleman and I are more or less in agreement that it is important that the responsible officer knows where the offender lives and has a record of that, and is informed straight away if there are any changes to that address. The hon. Gentleman suggested that we insert a time scale. We note that issue as a potential breach, but we have that common-sense discretion whereby if a long period of time were involved, the judgment could be made accordingly.

Photo of Sally Keeble Sally Keeble Labour, Northampton North

May I urge caution the other way? I am thinking of a pregnant girl of only 15 who moved house at extremely short notice and nobody knew about it, including her midwife. There is a real need to ensure that young people understand that they must tell people where they are living.

Photo of David Hanson David Hanson The Minister of State, Ministry of Justice

I accept that. The Committee is as one on the need to have up-to-date addresses because communication is important; the responsible officer needs to know where the offender is. That is a clear duty; there will be a breach of the order under subsection (5)(b) in the event of a change of address not being notified. There should be discretion to ensure that the circumstances are managed, and to decide within the guidance, and with knowledge of the offender, whether a breach has occurred. That is important because I can think of circumstances in my constituency in which individuals have had to move at short notice because of domestic violence, drug abuse at home or other circumstances that are sometimes beyond their control.

Under the Bill, the offender is obliged to notify the responsible officer of any change of address and, self-evidently, that means within a reasonable time. The amount of time can be judged by the responsible officer based on circumstances, as my hon. Friend the Member for Northampton, North indicated, or on guidance and advice given at the time.

In the light of those helpful comments, I hope that the hon. and learned Member for Harborough will withdraw the amendment, useful though it has been to have the exchange, and that other hon. Members will not press their amendments to a vote.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I heard what the Minister had to say and I listened with interest to the hon. Member for Cambridge. I will not ask the Committee to express an opinion about my argument, or even the Minister’s; at present, it is sufficient for me to have placed my concerns before the Committee and for the Minister to have considered them. Perhaps he will also consider them on another occasion. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 ordered to stand part of the Bill.