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Clause 4 - Breach of supervision requirements

Offender Rehabilitation Bill [Lords] – in a Public Bill Committee at 4:30 pm on 28th November 2013.

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Photo of Nadine Dorries Nadine Dorries Conservative, Mid Bedfordshire

With this it will be convenient to discuss amendment 41, in clause 4, page 4, line 9, after “204)” insert ‘, or

(d) restate the requirements with which the offender must comply and warn the offender of the consequences if he fails on a further occasion to comply with any of the requirements of the order.’.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Wales), Plaid Cymru Westminster Leader, Shadow PC Spokesperson (Constitution), Shadow PC Spokesperson (Foreign Affairs), Shadow PC Spokesperson (Home Affairs), Shadow PC Spokesperson (Justice), Shadow PC Spokesperson (Defence), Shadow PC Spokesperson (Environment, Food and Rural Affairs)

I shall attempt to be brief. The amendment would remove the sanction of imprisonment for a breach of post-release supervision. I am indebted to the Prison Reform Trust for its persistence on the amendment, which it was keen to see discussed.

The Bill introduces a new licence period for short-sentenced prisoners and deals with the new supervision period that follows that time on licence. It extends the time on supervision to 12 months for all short-sentenced prisoners. The amendment would help to ensure that the purpose of the new supervision period is primarily rehabilitative, by removing custody as a sanction for technical breach of requirements. It would retain the sanctions available to the courts of imposing a fine or a supervision default order that imposes either an unpaid work requirement or a curfew requirement. The option of recall to custody for breach of conditions during the licence period is unaffected.

The Prison Reform Trust is particularly concerned that, without additional safeguards, the proposals will result in an increase in breach and recall to custody, which will drive up the short-sentenced prison population. As the “Transforming Rehabilitation” consultation acknowledges, many people serving short prison sentences have complex and multiple needs, including homelessness, unemployment, drug and alcohol addictions, mental health needs and learning disabilities. That in turn increases the likelihood of breach and recall to custody if sanctions imposed for non-compliance are too onerous or the period on licence or supervision is too long.

In their summary of responses to the “Transforming Rehabilitation” strategy, the Government outlined their approach to breach of supervision requirements:

“We propose to adopt a range of sanctions to address non-compliance with supervision, only recalling offenders to custody  as a final measure. We believe these will provide an effective response to offenders who are failing to meet the terms of their sentence, whilst helping to minimise costs to the system.”

However, the Joint Committee on Human Rights expressed concerns in its report that that was not currently reflected in the Bill:

“This does not, however, appear on the face of the Bill, leading to concern that the Bill will result in breaches of the principle of proportionality, by leading too easily to the use of imprisonment as a sanction in relation to conduct which is not criminal.”

The Committee also pointed out an anomaly between the Government’s stated intention and their calculations in the revised impact assessment, with 70% of people who breach their supervision requirement estimated to be sentenced to further custody for 14 days. The Committee concludes:

“We are concerned by the risk that custody as a sanction for breach will not be used only as a last resort.”

The impact assessment estimates that an additional 13,000 people will be recalled or committed to custody, giving a prison place increase of around 600, as I said earlier in the discussion, at a cost of £16 million per annum. In addition, there will be

“around 3,000 offenders given electronically monitored curfews, at a cost of £2 million per year, and around 1,000 offenders given unpaid work, at a cost of less than £1 million per year. There would be around 14,000 offenders returned to court at a cost of £6 million per year. This gives a best estimate of the cost of breach for offenders released after serving custodial sentences of less than 12 months of £24 million per year.”

By limiting custody as an option for breach, the amendment would help to reduce the significant costs of extending statutory supervision to short-sentenced prisoners—another element of the costs exercise that no doubt we might consider.

A rise in the number of recalls has been identified by the Ministry of Justice as a key driver in the growth of the prison population over the last two decades. The recall population has grown rapidly since 1993, increasing by over 55 times. It increased by 5,300 between 1993 and 2012. Growth in the recall population began in 1999, reflecting the change in the law in 1998 which extended executive recalls to medium-term sentences, which means those of 12 months to less than four years.

It seems to me that there is significant risk that extending recall to custody as an option for breach of supervision requirements could have a similar impact on the short-sentenced prison population. That would be counterproductive to the rehabilitative aims of the proposal, given the poor record of prison at reducing reoffending, particularly by short-sentenced prisoners. Reoffending by offenders sentenced to less than 12 months in prison is estimated to cost the economy up to £10 billion per annum. Some 58.5% of prisoners sentenced to 12 months or less reoffend within one year of release. For those who have served more than 11 previous custodial sentences, the rate of reoffending rises to 69%. That is the gist of amendment 42.

Amendment 41would give courts the power to give warnings to offenders who have breached supervision requirements at the end of the sentence. I do not propose that to be a soft option in any way. It is part and parcel of the debate about the way in which some American courts that I have seen are now dealing with such  matters, and the way in which salutary warnings sometimes go quite a long way even with criminals who have been in and out of the system. The amendment would give sentencers an additional power to issue warnings to offenders who have breached the terms of their supervision requirement after being released from custody. It would enable sentencers to restate the requirements with which the offender must comply and warn the offender of the consequences if he or she fails on a further occasion to comply with any of the requirements of the order.

Subsection (4) outlines the options available to the court if a person has failed without reasonable excuse to comply with a supervision requirement. Currently, the effect is that if a court finds that an offender has breached their supervision requirement without reasonable excuse, it may order the person to be committed to prison for a period not exceeding 14 days, order the person to pay a fine, or impose a new supervision default order with the option of either an unpaid work requirement or a curfew requirement. The amendment provides sentencers with an additional, and what can be a robust, option in response to breach, while retaining necessary flexibility. It recognises that a return to court can of itself prove a sufficiently salutary experience in many cases, and ensures that the person fully understands the requirements and the consequences of non-compliance.

For many people with a mental health need or learning disability, making an order more onerous may simply set them up to fail and increase the likelihood of further breach. In some cases, fines could increase the financial pressure on offenders who are struggling financially and increase the risk of further offences of theft, burglary or robbery to obtain money. The Government’s impact assessment estimates that of those who serve sentences of less than 12 months and are therefore subject to the new supervision requirement, an additional 13,000 will be recalled.

In their response to the “Transforming Rehabilitation” consultation, the Government said that they propose to adopt a range of sanctions to address non-compliance with supervision requirements, recalling offenders to custody only as a final measure. However, I again refer to the Joint Committee on Human Rights, which said:

“This does not, however, appear on the face of the Bill, leading to concern that the Bill will result in breaches of the principle of proportionality, by leading too easily to the use of imprisonment as a sanction in relation to conduct which is not criminal.”

The intention is to introduce not a soft option, but another option. I am not saying that it will be used routinely every day, but in some cases it would be helpful to do so because when some people appear in court, that is, as practitioners here will know, enough to scare them away from further criminality, despite a technical breach or whatever it might be. The amendment would strengthen the arm of sentencers and give them further latitude to work with people. It would be a useful addition to the Bill.

Photo of Jeremy Wright Jeremy Wright The Parliamentary Under-Secretary of State for Justice 4:45 pm, 28th November 2013

The purpose of amendments 42 and 41, as the right hon. Gentleman explained, is to reduce the sanctions available to the court to deal with breaches of top-up supervision. Unlike breach of licence conditions, consideration of a breach of top-up supervision will be a matter, as he knows, for the magistrates court. Dealing with breach of supervision conditions will indeed be an important new role for district judges and lay justices. As we have discussed, the court will have wide discretion  to deal with an alleged breach. It may find that there has been no breach, or that there has been a breach but then take no formal action, which I think is essentially what amendment 41 would do, or it may decide that a sanction is required to punish the breach.

Clause 4 gives the court three sanctions if there is a proven breach: a fine of up to £1,000; a supervision default order, which provides a further choice of two sanctions—unpaid work or an electronically monitored curfew; or the court can commit an offender to custody for up to 14 days. There must be a balance between the need to ensure that offenders comply with conditions and the need to ensure that rehabilitation remains the primary focus of the supervision.

The options provide a sanction for failure without reasonable excuse to comply with supervision conditions. However, the sanctions are limited and will have to be applied proportionately. Again, I stress the point that I made earlier today that, because a range of options is available to the court, it does not follow that in every case it will decide that it is appropriate to resort to a custodial option. As the right hon. Gentleman would expect, the Government are in discussion with the independent Sentencing Council about producing guidelines for magistrates on what appropriate sanctions might be for particular types or levels of breach.

We recognise that there will be a variety of circumstances in which offenders will breach their conditions of supervision, and it is worth noting that some offenders will do so in a way that merits committal to custody, even for a short period. We believe that we must trust magistrates to make the right decision in such cases. Only they will be able to look at the full facts of the case and decide the best way to ensure that the offender complies with their supervision conditions.

We are providing a range of sanctions, but they are limited in what they impose on the offender precisely because we are trying to get the right balance between ensuring compliance and maintaining the original focus on rehabilitation. I understand what the right hon. Gentleman is seeking to do in amendment 41, but I suggest that the Bill already allows the court to choose not to impose a sanction if there is a breach.

Photo of Jeremy Wright Jeremy Wright The Parliamentary Under-Secretary of State for Justice

That might be a good place for me to conclude my remarks.

Amendment, by leave, withdrawn.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I beg to move amendment 32, in clause 4, page 4, line 28, at end insert—

‘(9A) The Secretary of State must make an annual report to Parliament on the number of breaches of a supervision requirement recorded in the preceding year, the reasons recorded for an offender’s failure to comply in each case, and the outcome in each case including details of any order imposed on the offender by a magistrates’ court.’.

Photo of Nadine Dorries Nadine Dorries Conservative, Mid Bedfordshire

With this it will be convenient to discuss the following:

New clause 3—Annual reporting of reconviction rates—

‘The Secretary of State must publish an annual report which must include details of the impact of new measures on the reconviction rates of offenders supervised by providers of probation services and as a consequence of participating in any programme or intervention.’.

New clause 4—Mental health treatment requirements—

‘The Secretary of State must annually publish the number of mental health treatment requirements, as defined in section 208 of the Criminal Justice Act 2003, imposed as part of a community order or suspended sentence order by each court in England and Wales.’.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

It is beginning to look like the Minister has been reading the Bill in an attempt to undermine our arguments.

This is the last matter that I will address today. Clause 4 is important because it provides for breach arrangements. Amendment 32 is a simple provision that would ensure that Parliament is kept up to date about how the proposals are working in practice. It would place a duty on the Secretary of State to report annually to Parliament on the numbers and details of breaches of supervision requirements. New clause 3 would require the Secretary of State to report on the number of offenders recalled to custody. Those important safeguards would ensure that the impact of the new system is properly monitored.

We dealt with the figures during our debate on a previous group of amendments. There will be 600 additional places in prison, at a cost of £16 million per year, and 13,000 offenders will be recalled to custody. A report would enable Members to monitor how well the proposals are operating in reality. They would be able to see whether certain sanctions are underused or overused and how the scheme has affected the prison population. The Secretary of State would have to report to Parliament on the cost of the measures and on whether the provisions have disproportionately affected any particular groups of offenders. For example, the majority of female offenders will be eligible for supervision because they tend to serve short custodial sentences. If breach provisions lead to a particularly high increase in the female prison population, that should be reported so steps can be considered and action can be taken.

Such monitoring is an important tool for testing providers’ performance. If one provider has a staggeringly high breach rate, Members should be provided with that information so questions can be asked about how well that provider is managing its case load. That would enable Members to consider whether some supervision requirements have proved more effective than others, and whether any should be re-considered.

The Secretary of State scrapped the previous Government’s prison building programme and closed down a number of local, often well performing prisons, so we are facing a crisis in prison numbers. Last week, the prison population was more than 85,000 and there is a usable operational capacity of only 900 more places. Therefore, the additional 600 places is significant. The Secretary of State has planned more prison closures and the Government have not indicated how they plan to deal with the increase in prison places that is needed. A report would be an excellent means of enabling Members to judge the Government and their policies.

On a related note, the Magistrates’ Association said that it was concerned that the new supervision and probation arrangements may result in up-tariffing and an increased use of custody over community sentences. The Government’s impact assessment also notes that risk. Community sentences, if used appropriately, have a better reoffending rate than short-term prison sentences. Will the Minister inform the Committee whether the Government have any plans to monitor how the use of community sentences will be affected by the proposed changes?

New clause 4 has been selected with this group because it would also require the Secretary of State to publish an annual report, although on a different matter. The latter clauses of the Bill deal with requirements available in community and suspended sentences orders. New clause 4 would place a duty on the Secretary of State to report to Parliament on the use of mental health treatment requirements, which are already available.

We have already had a discussion today about the prevalence of mental health problems in the criminal justice system and the importance of diversion and appropriate treatment for preventing reoffending. Despite the scale of the issue, mental health treatment requirements still represent less than 1% of all requirements in community orders. The Centre for Mental Health identified a number of barriers to the use of the requirement, including the lack of services available for courts to send offenders to. It recommended increased monitoring of the use of the order, and partnerships between local court services and health commissioners to agree a protocol on provision of services and advice to the courts.

New clause 4 would require the Secretary of State to publish annually the number of mental health treatment requirements imposed as part of a community order or suspended sentence order by each court in England and Wales. That would highlight the issues by area and ensure that progress in each year was checked.

Does the Minister agree that that requirement is an important tool that is currently being underused, and will he update the Committee on what efforts the Government are undertaking to improve the uptake of the requirement? I look forward to hearing his response on those points.

For the avoidance of doubt, and not just because of the hour, as regards schedule 2 and the other clauses that we intended to cover today, in so far as there was anything to say on those—for example, in relation to young offenders after release—that has already been dealt with in previous debates and I will have no further comment to make on those provisions.

Photo of Jeremy Wright Jeremy Wright The Parliamentary Under-Secretary of State for Justice 5:00 pm, 28th November 2013

The common theme uniting all these amendments is that they require the Secretary of State to publish various types of statistical information. I recognise the spirit in which they have been tabled, and I have no doubt that the commitment to make the criminal justice system more transparent is one with which we all agree. I hope I can reassure the Committee by saying that the statistics mentioned in each of these amendments are either already published or will be published in future, and I reiterate the Government’s commitment to ensuring that the outcomes achieved by organisations working with offenders are transparent to both Parliament and the public.

I should say first that there is already a statutory duty in section 95 of the Criminal Justice Act 1991 requiring the Secretary of State every year to publish such information as he considers expedient on a range of topics, including information allowing those working in the justice system to become aware of the financial implications of their decisions and information allowing them to understand the effectiveness of different sentences in preventing reoffending. In accordance with this duty, every quarter the Ministry of Justice already publishes proven reoffending statistics, which split reoffending rates by age group, gender, criminal history and offence type for different types of sentence and for individual prisons and probation trusts. The information also includes annual reoffending rates for drug misusing and for prolific and other priority offenders, and reoffending rates at local authority and community safety partnership level.

This is a National Statistics publication and is therefore subject to the appropriate checks and safeguards. As we move to a set of new probation organisations with new boundaries, we will of course reflect those changes in the breakdown of the reoffending rates that the publication gives, so it will be possible to see the impact that each organisation working with offenders is having in its area. The Ministry of Justice also publishes the annual compendium of reoffending statistics and analysis to compare the effectiveness of different types and lengths of sentences. This work compares like-for-like offenders, which enables a more reliable comparison of proven reoffending rates between offenders receiving different sentences. I hope that gives some reassurance about the first limb of new clause 3.

On the second limb of new clause 3, the Ministry of Justice regularly publishes evaluations and evidence summaries on the impact of different programmes and interventions. For example, in October last year we published a detailed study that explored the impact of different community order requirements on the reoffending rate and the frequency of reoffending within two years of the initial offence. More recently, the Department published a summary of evidence on reducing reoffending, which reviews the academic literature on an extensive range of interventions with offenders. I commend that review to members of the Committee.

I also draw the Committee’s attention to the innovative justice data lab that the Department has launched. This provides organisations working with offenders with the one-year proven reoffending rate for that group, together with the rate for a matched control group of similar offenders. It will be vital in helping the many smaller groups that we all see working with offenders in our constituencies to demonstrate the value of their work.

On amendment 32 and new clause 4, the Ministry of Justice already publishes quarterly offender management statistics, which again is a National Statistics publication. These statistics already include licence recall statistics. We want to ensure that in future this includes recalls of prisoners released from sentences of less than 12 months and committals to custody for those proven to have breached a supervision requirement. That publication also already includes the number of offenders starting mental health treatment requirements as part of a community order or suspended sentence order.

I hope that the hon. Member for Hammersmith will be reassured by that explanation, which I hope makes clear the Government’s commitment to being transparent  about the outcomes of the work that a range of organisations will be carrying out with offenders that. I give due credit to the previous Government’s commitment to making that information available. It is a commitment that we share and want to build on. I welcome the intention behind the amendments, as I have said, but I hope that the right hon. and hon. Members who tabled them will see fit, in view of what I have said, not to press them.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Wales), Plaid Cymru Westminster Leader, Shadow PC Spokesperson (Constitution), Shadow PC Spokesperson (Foreign Affairs), Shadow PC Spokesperson (Home Affairs), Shadow PC Spokesperson (Justice), Shadow PC Spokesperson (Defence), Shadow PC Spokesperson (Environment, Food and Rural Affairs)

I want to ask the Minister one simple question. I am encouraged by what he has said, but is there anything in new clause 3 that could not be provided? In other words, is all the information available? From what he has said, I think it is, and the new clause would just make it a matter of collating all the information into one report. Would that be a fair summary? The new clause would require

“an annual report which must include details of the impact of new measures on the reconviction rates of offenders supervised by providers of probation services and as a consequence of participating in any programme or intervention.”

Is all that information readily available, as the Minister says, whether in quarterly form or whatever?

Photo of Jeremy Wright Jeremy Wright The Parliamentary Under-Secretary of State for Justice

I have set out for the right hon. Gentleman what is published. Perhaps, to be on the safe side, I had better go away and look again at new clause 3, just to make absolutely certain that I can give him a clear assurance. If he will allow me to do that, I will. As I have set out, a good deal of information is already released. I think it covers all that the right hon. Gentleman is concerned about, but let me make absolutely certain and come back to him.

Photo of Jeremy Wright Jeremy Wright The Parliamentary Under-Secretary of State for Justice

Again, we would want to refer the right hon. Gentleman back to what is already published. If there is a much more helpful way of synthesising it, we will of course look at that. We believe that the current methods for disclosing the information are the right ones, but I will look at what he is saying.

Photo of Andrew Slaughter Andrew Slaughter Shadow Minister (Justice)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 ordered to stand part of the Bill.