Hello. My name is Phil Bowen and I am the director of the Centre for Justice Innovation. I would like to make the Committee aware that from July 2020 to March 2021 my organisation had a contract with the Ministry of Justice that enabled me to provide policy advice and challenge to Ministers and civil servants on the community supervision aspects of the sentencing White Paper and the Bill.
Of course. The Centre for Justice Innovation has long been a supporter of problem-solving courts. At their simplest, they bring together specialist supervision and intervention teams with the powers and authority of a court to review progress regularly against a sentencing plan. They generally operate out of existing courthouses and are built from existing resources. We already do work on and support about 11 courts across the UK that use problem solving to manage specific caseloads, including three in Northern Ireland, sponsored by the Department of Justice in Northern Ireland, and four in Scotland. That is in addition to the 14 family, drug and alcohol courts already in existence in England in the public family law system.
As you know from the Bill, the Government propose to pilot three separate and distinct models of problem-solving courts in England and Wales in the criminal court system: a substance misuse court model; a model to tackle domestic abuse; and a model to help vulnerable women avoid short-term custody. We are very supportive of the move, for which we have been calling for a long time. We believe that the evidence base on all three of those models is robust enough that the piloting of them in England and Wales would be useful as a first step before thinking about their further roll-out across the system. We think there is a real chance to reduce the use of unnecessary custody and tackle reoffending, particularly in the substance misuse and vulnerable women models and, in terms of the model to tackle domestic abuse, to really hold perpetrators to account and give victims a sense of safety and involve them in the ongoing supervision of those perpetrators.
Thank you; I am grateful. I am very well aware of the work that Phil Bowen is doing. CSJ also endorses the use of problem-solving courts. They have the potential to be enormously beneficial to defendants sometimes facing serious matters across the UK.
In terms of the scope of the proposed pilots, I think that the chosen three categories—domestic abuse, substance abuse and vulnerable women facing prison sentences—are wise choices. What is best about a problem-solving court is that it draws from real specialist knowledge and experience that can really look behind a problem, understand it and provide practical solutions, so these issues are worth tackling. One point I would note as a matter of caution is that problem-solving courts at their best are fantastic, but they do pose dangers. I am pleased to see that we are starting with a relatively small pilot because it is important to get right the things that sometimes appear to be small. For example, listing cases for problem courts to ensure that they are before the same panel that can continually look at a case and review it, and understand that the team that they are working with and the person in front of them are important.
In our jurisdiction, we have sometimes had difficulty with listing in front of lay magistrates—problems that they do not necessarily experience to the same degree overseas in the US. So there are examples of things that need to be done well and right. I am pleased to see that those three categories have been chosen, because they are worth tackling, and I am pleased to see that the initial pilots are small enough to allow proper analysis and reform as we go along.
Still on the subject of problem-solving courts, I am concerned that the problem-solving courts do not include mental health. People with ADHD and neurodiverse and mental health conditions are over-represented in our prisons, so I wonder what Phil and Adrian have to say about how those issues can be resolved, and whether they think the problem-solving courts’ proposals need to be expanded.Q
Yes. Thank you. I can entirely see that that concern is absolutely valid. We know from the CSTR—community sentence treatment requirements—model that substance abuse and mental health are both dealt with alongside each other, separately but often in the same hearings. It is an absolutely valid concern. I would also say that as well as substance abuse, there is now a growing need to consider the impact of gambling addiction. That issue is becoming increasingly prevalent in our country. Sadly, over the last 15 years, there has been an explosion in this sort of addiction, and it draws into crime the people who would not necessarily always fall into it.
What I would say—I have said it prior to this—is that problem-solving courts are good if they are done well, and I would hope that we do not get too prescriptive about what kind of person is in front of us and categorise them as a domestic abuse or a substance abuse case. Often people have complex and chaotic lives with lots of different things going on. I would hope that a problem-solving court done well might have a category that they call a substance-abuse court, but be equipped to deal with something such as mental health as well.
I practised as a barrister for some time and I know that often clients, like I had before me, have issues behind what is apparent from the offence, which could go unseen unless probed. I spoke to a colleague earlier today and he explained to me that there are some 300,000 people in the UK right now who are indebted to a loan shark. You will never see the chaos behind someone’s life from a simple shoplifting offence. You need to be able to explore that. If problem-solving courts and pre-sentence reports are done well, in line with the new probation reforms, this should become clear and we should be able to help people with multiple needs before the courts.
To add to that, I understand that the current plans in the Ministry of Justice are to pilot those three types of models, but as all the models are drawn up, there is an awareness that people who would be eligible for substance misuse court are likely to have co-occurring mental health needs, and those would need to be addressed at the same time. The substance misuse court that currently operates in Belfast and the drugs court that currently operates in Glasgow recognise the complexity of people’s substance misuse and other needs, and seek to address them.
It is pretty clear, from what I have seen, in existing practice and what the Ministry of Justice is beginning to develop, that there is a broad awareness that it may be a trigger for intervention that vulnerable women are identified as at risk of custody, but there will be a recognition and services targeted at a range of their complex needs, one of which almost invariably will be mental health. That is very much at the heart of what the Ministry proposes, and we support that.
We welcome the addition of the new statutory duty clause for courts that requires them to consider the welfare and best interests of the child. We think that is a positive part of the Bill. It would be nice if it could go further. Seeing custody as something to keep people safe is not correct, but there is broad support, as far as I can tell, from people with an interest in youth justice for this change. I know some of my colleagues would like it to go further.
I would like to ask about the extension of categories of positions of trust. We have all been appalled by the way that some individuals have abused those positions, as football coaches, in gymnastics, in children’s homes or in the Catholic Church and other religious settings.Q
Currently, as I understand, clause 45 would extend those definitions and include anyone aged over 18 who supervises or works with 16 and 17-year-olds. I know from personal experience with my own family that, often, older children at a dance school, perhaps over 18, often chip in to help with tuition and coaching. In some cases, they may even be in the same class at school as a 17-year-old who is part of that dance academy. I wonder whether there could be difficulties in situations such as that. Indeed, we also remove the right to give consent from 16 and 17-year-olds who may find that infringes on their ability to choose who to have a relationship with. Perhaps Mr Crossly might be most appropriate to respond first.
The first point to know is that affording some protection in this area is absolutely imperative. We have seen abuse of trust that has led to not just inappropriate relationships—that is not what we are dealing with. We are dealing with sometimes highly vulnerable children who are sexually abused. In order to make an inroad into dealing with that sort of offending, we need to get to the crux of how it comes about. All too often, positions of trust can allow a perpetrator to hide in plain sight—not only that, they make the person who is abused feel partially responsible and incapable of speaking out. The perpetrator recruits the trust of the people nearest and dearest, including their parents.
While I appreciate that there may be some difficulties in the administration of this issue, that will not unnecessarily impinge upon the movement of people and their enjoyment of their leisure, I do not put that value at naught—absolutely not. I do see, at the other end of this, we have a very real risk, which has existed pervasively throughout our society for a long time. I think the extension into the position-of-trust model starts to move away from identifying it as in small pockets of society and to see it as the modus operandi of some perpetrators of crime. I think its broadness is important and the clause as it stands is sufficient.
Q So you would not agree with those who might argue that a small number of perfectly proper relationships might be caught up in this and that we could end up with people being unnecessarily criminalised. That is not to undermine the points that we all agree with about people in positions of trust who exploit that. The question is whether a person’s right to give consent could be undermined by these changes in specific situations, particularly where an 18-year-old is at the same school or in the same class as a 17-year-old.
So much of this, as with any law, is about how it is actually executed on the ground and how the decision-making processes operate. At this stage, when you are looking at the written form of the clause, I can see that there is potential there for consent. The administration of a clause like this relies on good practice, and I would say that these things can be circumvented. You have the same sort of problem with something as controversial as stop and search, where you can see that there may be a very good reason for it but, done badly, it can be incredibly corrosive to society; it can stop people moving around freely. But that does not mean that the legislation itself is wrong. It will come down to how we administer this, and a continual review of that is necessary. But I do accept this: it is not possible for me to say that there will not be friction and difficulty as this clause is administered.
I have two questions. The first is on problem-solving courts. Are there potential structural problems where the courts fall under this place, under Westminster, whereas key agencies such as health and social services, higher education and further education and a host of others fall under a different legislature—that is, public policy made by the Senedd in CardiffQ ?
One example to offer the Committee is from the public family law system. The Welsh Government and the courts system have just agreed to create a new family drug and alcohol court. The issue is similar, in that it requires a partnership between people in the Welsh Government, local authorities and the courts service.
I certainly know that, as part of the Ministry of Justice’s scoping of where the pilot sites might be, it is very keen to speak with Mayors, police and crime commissioners, the Welsh Government and others about where the most suitable sites are. So I do not think it is incompatible. It certainly will require partnerships and collaboration. That is what exists already in existing problem-solving courts; as I say, it already is going to be a feature of the new family drug and alcohol court in south Wales. So I do not think this is insurmountable. I certainly know there is a strong interest in the Ministry to have discussions with the Welsh Government about whether they think it is appropriate to have one of the problem-solving court pilots in Wales. I think there is still work to be done there, but wherever they exist, they require partnerships between different agencies and both national actors and local actors.
Q May I ask one other question briefly? Can you comment on the dangers of sentence inflation from the Bill, particularly when sentences across the board, as well as rates of incarceration, are higher in Wales than in England and when black, Asian and minority ethnic people are over-represented in Welsh prisons to an even greater degree than they are in England?
Sentencing inflation is a very real problem. For decades now, we have seen incremental rises in sentencing, right across the board. There is a theory that the more we increase the more serious offences tariffs, there is a trickle-down effect; essentially, it pulls up sentencing for lesser offences. We see, for example, sentences for drug offences increase over a 10-year period by about 30%, and for theft by around 22% over the same period. This has a very real effect on people’s lives. It is not just a question of a few extra years—that would be serious enough as it is—it can often be the difference between somebody having a sentence suspended and actually being taken away and put into a cell, so it is a very real problem.
Some regard this as a Bill of two halves with what some regard as very punitive sentencing on the one hand and some very progressive, challenging and, I would say, quite brave proposals for community reform and rehabilitation on the other. A great deal of subjectivity is involved in deciding how much time somebody should serve for very serious offences. I do not see anything necessarily wrong with reviewing how this society deals with very serious offending. If there is an increase in tariff, which we as a liberal democracy think is right, that is fine, but there are real dangers with that. My view is that we are likely to see a Prison Service that is wholly incapable of dealing with the stress of an extra 20,000 people—what is forecast for the next few years—inundated with new offenders who are likely to have very little access to meaningful reform and rehabilitation. That is deeply concerning to me.
If as a society we feel that that more serious offending requires a higher tariff, we also have to address the numbers in prison. The most important thing we need to do is to look at whether people who are currently being sent to prison, perhaps at the lower and medium end of offending, really need to go there. The Centre for Social Justice published a paper last year called “Sentencing in the Dock”. Our position was very clear that modern technology, with GPS tagging and alcohol tagging—I could list a number of requirements that are already rightly in the Bill—could provide a sufficient deprivation of liberty to act as a real punishment for serious offending or medium to low-level offending.
We need to be much bolder about the amount of people we keep out of prison and deal with in the community. We can see clearly that in treating alcohol, drug addiction, mental health problems, literacy and numeracy, you are far more likely to have an effect on those key drivers of crime if you deal with people in the community than if you put them in prison. We could be much bolder in dealing with community disposals. There is a real risk of sentencing inflation here, of a prison population growing out of control and, in my view, of brutalising people who might otherwise be able to reform.
I agree with a lot of that. The only thing I would add is that proposals are set out in the White Paper that are being taken forward by the Ministry that seek to strengthen the community justice parts of the system. They include things such as investing in early intervention and prevention, including the improvements to the out-of-court disposals regime, which I think is vital for young people and people from black, Asian and minority ethnic communities in particular.
The nationalisation of the probation service represents a real opportunity to strengthen community sentences and win public confidence in community sentences back from the courts. I also think a strong interest and investment are needed in high-quality treatment for offenders and the more dynamic use of electronic monitoring. While I agree with a lot of what Adrian has just said that some proposals in the Bill seek to increase the use of prison, that takes away money from smarter investments in community justice. I would also like to emphasise that there are things in the Bill that we support, because we think they take forward that idea of smarter community justice.
Two quick questions to the witnesses. If we brought in a definition of child criminal exploitation, do you think that would help or hinder the police and support for victimsQ ?
My view is that definitions usually start their life imperfect and develop with a great deal of expertise from public and experts who understand this issue perhaps better than I ever could. Notwithstanding that, and understanding that there may be a starting point of imperfection, they are useful. In my view, definitions of important criminal principles help real decision makers on the ground make practical decisions that are fair and consistent. Notwithstanding the fact that I see problems with that—we have seen so many different definitions of domestic abuse, which started its life as domestic violence, that it is clear these things are fluid and can develop—I think they have a practical application.
Q Can I ask for your comments on special measures in court? I am thinking of witnesses being able to give evidence remotely, which at the moment is at the discretion of a judge. If there were a presumption that a vulnerable witness had an automatic right to those measures, do you think that that would help or hinder securing justice?
I think presumption to all of them is very useful. The other thing that I think is worth underlining is that part of the model of the specialist domestic abuse courts, which ought to operate in every magistrates court but at the moment do not, is that independent domestic violence advocates make sure the victims are asked about special measures and those special measures are put in place. I think there is a delivery and implementation question, as well as a legislative question, about whether the resources are there to help victims of domestic abuse and ensure those special measures are put in. Yes, I think a presumption would be useful, but I think it also requires attention to implementation and delivery issues. Special measures should already be used in specialist domestic abuse courts across our magistrates court estate and, in many cases, domestic abuse victims are without access to those measures, for want of anyone who asked.
Q Thank you. I am hoping this could be one of the benefits we get out of the covid experience. Adrian, any comments?
I endorse pretty much all of what Mr Bowen has just said. I will not repeat what he said, so forgive me, but I particularly want to emphasise the focus that was placed on the reality of actual implementation. I worked for some years as a prosecutor and in defence, and I can say that, very often, lack of special measures is not the result of an omission in thought or some massive procedural error. Sometimes the implementation of special measures and, certainly, the pragmatics of what happens in court are not there and the stress that that puts witnesses through is absolutely huge. Sometimes, we talk a lot about witnesses not turning up or defendants gaming the system, hoping that the stress of waiting for trial is so bad that the witness just will not turn up, but the chaos and confusion that is caused by a broken system that is fixed on the day can be hugely distressing to a witness. I think implementation is important.
That point is not where I was going to go, however. Just for balance, I should say that it is always right that the accused should be able to face their accuser and evidence should be tested properly. Nothing that I have seen that has been proposed, including video examination in chief and cross-examination before trial, gives me any concern that without the right implementation that could not be done well. We always have to have an eye on making sure that the accused has a fair trial. This is important; it is not a nicety. However, the measures I have seen proposed give me no real cause for concern about that. I think it makes a massive difference to the view of the complainant and, unfortunately, it would also make a massive difference to the view of some defendants, who may face the reality of the evidence against them earlier. It may encourage pleas that should have happened earlier.
I have a number of questions across different areas, so short answers would be appreciated. First, Phil touched on the disproportionate impact on specific communities of minimum custodial sentences. Do you think the Government have given enough consideration to this aspect of the criminal justice system?Q
Very quickly, I think the proposal in clause 100, which reduces judicial discretion about imposing minimum custodial sentences, is a regrettable step. I have seen no evidence to suggest that that discretion has been misused. I am not sure on what basis that clause was proposed, and we have been arguing for its removal from the Bill. I see a place for minimum custodial sentencing, but I tend to be against anything that fetters the discretion of judges.
Statutory minimums can have a function when we want to give a standard approach to the severity with which society regards a certain offence. My view, though, is that over a decade or two, judicial discretion right across the board—not just in this clause—has been steadily eroded, and I do not find that particularly helpful in criminal justice. Judges are well equipped to make decisions about what is in front of them, and they are well advised. No guidelines can ever foresee the variety that life can bring you, and my view is that the more judicial discretion there is, the better our criminal justice system is likely to be.
In general, we support the move to the two-tier system. It is something that was called for by the National Police Chiefs’ Council, as you know, in 2016. Fifteen forces already operate such a simplified framework. The concerns we have are twofold. One is that in consultation events that we have already held with a number of police forces, they strongly suggested that they wanted to retain the flexibility to issue the community caution—the lower tier—without conditions. In the existing framework, they are able to issue a simple caution that does not involve conditions. Police forces want that flexibility, and the new framework proposed by the Government does not allow that in the lower tier.
The second issue, which speaks to previous comments about disproportionality, is that we would strongly argue that it should be possible to offer the community caution—the lower tier of the two tiers—to individuals who accept responsibility for their behaviour, rather than requiring a formal admission of guilt. This is an idea that was raised in the Lammy review and has subsequently been raised in the Sewell report. We think it would be better if that lower tier could be offered to people, who are required only to accept responsibility for their actions. As the Lammy review suggests, that may encourage the participation of people from groups who tend to have less trust in the police and the criminal justice system.
Drawing from the 2014 audit, there are some learnings from the two-tier system, most notably the training of officers so that they can refer people to the intervention that is appropriate and useful, better inter-agency communication, and sufficient time for implementation. Once that is done, our view is that this is a great step forward. We are very enthusiastic about it. This is about intervening and offering help, not just having a meaningless warning. We have spoken to charities that have actively said that these sorts of interventions, which encourage somebody to engage with treatment, can really make a life-changing difference to people. It is unrealistic to expect them suddenly to go into full rehabilitation, but it can make an introduction and open up doors that sometimes people feel are just not open to them. We see that there is real strength in this approach. We have also heard a number of police forces suggest that it would be enormously helpful to them if community resolution remained on the books. Certainly, it is currently the most widely used disposal.
No, not the simple caution. It is a community resolution. It is slightly different and more like a contract with the police force that they can enter into to take the matter further. That is enormously popular with the police right now. Just to be clear, our view is that the thrust of this two-tier system is that there is a condition attached to allow the disposal of tier one and tier two. We think that is a very positive thing.
Q It has been suggested that the community caution requires a formal admission of guilt. Evidence suggests that offenders from a BAME background are far less likely to admit guilt than a white offender. Could the requirement of a formal admission mean that BAME offenders miss out on the benefits of a caution?
I think that risk is entirely possible; this is quite well documented. We have to look at ways to challenge that. Phil briefly touched on the “Chance to Change” pilots that are currently being operated, which look at this slightly lesser form of admission.
Our view is that we have to address the mischief here. If there is mistrust in this system, then there are two things that can be done. First, proper independently chaired scrutiny panels can look at the way these are run and the advice that they give to people when they enter the police station. I know that the Government have already suggested that that might be a way of dealing with this.
Above and beyond that is access to legal advice and to legal aid. We are seeing an attrition of people’s access to legal advice. My experience is that when people are properly advised about what is in front of them, when they understand that they are being treated fairly and decently, and when they understand the evidence against them, then they are in a position to make an informed choice.
If it is just a choice about, “Do you trust the police?” then I can entirely see how some communities would have reservations about that and even, when it comes to sentencing, well-founded reservations about pleading guilty. A system that is transparent and provides good training, a good understanding of what they are involved in and, clearly, good legal advice at an early stage, could combat that.
Q Thank you, Mr McCabe. To pick up on the questions asked by Alex Cunningham about minimum sentences, we have minimum sentences in very rare circumstances at present. Can you give the Committee your views about the pros and cons or the considerations we should have in mind if any proposals are made to increase the range of circumstances or offences to which minimum sentences might be applied?
My own view is that judicial discretion should be king. I have not done any huge research into this, but in my view and from my practice, sentencing guidelines have become very prescriptive and they almost railroad judges into decisions. Judges always have parameters to work within, but what is before the court is often something that is necessarily unique. Minimum sentencing can shackle decision makers who are acutely aware of the facts in front of them.
The only benefit I see is in cases where there are overwhelming public interest concerns that mean that a minimum tariff would adequately address a specific mischief and would undo it. If I were to see that, I would regard that as a pro for minimum sentences. I would need to see an evidence base that that would achieve that.
I agree with what Adrian says. In general, a lot of the evidence from, for example, the United States on mandatory minimums is not encouraging, but I see an argument for Parliament identifying particular crimes of concern and putting those in place. We should be clear that the deterrent effect of that is likely to be pretty mixed. The evidence is pretty mixed about whether that kind of thing really does deter future crime, but I can see the public need for the Government to be seen to respond to public desires around particular signal crimes. That is why, although I do not reject them out of hand, I agree entirely with Adrian that judicial discretion is extraordinarily important because judges will know the facts of the case much better than the press or the public watching on.
Q In relation to the proposals to make curfews potentially longer and more flexible, do you think that will make community sentences potentially more effective and might, furthermore, potentially reduce reoffending?
I think the emphasis in the Bill and the White Paper on flexibility around the use of electronic monitoring is the strongest part of the proposals. What the Ministry seems to be doing, which I think is right, is to encourage probation officer discretion and the flexible use of electronic monitoring powers, both to control people where there is need for further control, and to loosen up things where they are doing well. Part of the problem with electronic monitoring to date has been far too rigid sets of curfews without the ability for probation officers to vary them while people are on community sentences. I certainly support that.
In terms of providing for longer periods of electronic monitoring, I can see cases where that may well be useful. The only note of caution that I would suggest to the Committee is that the evidence base suggests that for younger people—in particular, young adults who live at home and people assessed as low risk—longer periods of electronic location monitoring can have a backfire effect. In other words, it can lead to increases in reoffending. All that really means is that the Bill provides the powers that it does, and it is then the job of the probation service to use those powers as flexibly as possible and in line with the evidence.
Thank you. I was going to ask about problem-solving courts, but I think that was covered adequately in earlier questions. I think Minister Atkins has some questions.
Q This is a quick question for Mr Crossley. The CSJ has obviously done a lot of work over the years on gang crime and on the many levers we can try to use to address it. What is the CSJ’s view of serious violence reduction orders, namely the piloting of stop-and-search orders for known—in other words, convicted—knife offenders aged over 18?
This policy actually has its origins in the CSJ. We are obviously very supportive of the serious violence reduction order. Just for clarity, and so I can answer that more fully, this is a post-conviction order. We regard it as being part of the wider system. We do not regard it as a stand-alone solution to knife crime in our country.
We see a very significant increase, not just in possession of weapon offences, but of violent offences perpetrated with the use of a weapon. What is clear to us is that we need to do something about that which is robust enough to challenge the mindset of someone leaving their home with a weapon. We draw from the group violence intervention models piloted in Boston in the US under Operation Ceasefire, which create a sort of pull-push effect. We really want to deter people from being able to leave the home feeling that they are safe walking around with a weapon. They should know that they are much more likely to attract police attention if they are on these orders. At the same time, in the sentencing court, we would hope that the order would be able to include other, positive provisions—perhaps even a knife crime behaviour order. Real intervention, engaging young people and pulling them away from that sort of offending can also have a pull effect away from that kind of offence.
I should say that currently, as it is being piloted, it is only for adults. Our view is that knife possession is pervasive across a number of age groups: it is particularly concerning when young people are carrying knives. We would like to see this scheme really being rolled out, so that we can intervene early when people are younger, to see that we do everything we can to take knives off the street and keep people safer.