PROCEDURE ON BREACH OF COMMUNITY PENALTY ETC (Hansard, 2 November 2004)

§ The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland)
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 18 to 20.
We now move on to a number of measures introduced at Commons Standing Committee and Report stage concerning the enforcement of fines, warrants where an offender has breached a community penalty and warrants issued when there has been a failure to appear in front of the court when summoned. These new measures were introduced by the Parliamentary Under-Secretary of State, Department for Constitutional Affairs, Christopher Leslie, as part of a large package of improvements the Government are currently taking forward to improve the overall 240 enforcement of criminal penalties and fail to appear warrants. These powers will relate only to criminal warrants.
One of the Government's top priorities within the criminal justice system is to increase the effective enforcement of criminal penalties and pre-conviction warrants. For example, through the review carried out by my noble friend Lord Carter of Coles, the criminal justice system seeks to increase the use of fines. However, if we are to do that and be successful we must first ensure that the fine is seen by the judiciary and the public as being a credible form of punishment. To enable that to happen the effective enforcement of fines is essential.
The successful enforcement of community penalty breach warrants and fail to appear warrants is equally crucial to improve the efficiency of the courts and the overall criminal justice system. These additional measures are needed to tackle offenders who wilfully refuse to comply with the orders of the courts.
Currently only about 30 per cent of distress warrants and 43 per cent of community penalty breach warrants are executed successfully. It is estimated that there are currently around 70,000 outstanding fail to appear warrants. I doubt whether any noble Lord would argue that improved enforcement in these areas is something that we should not implement immediately. That is why these measures have been introduced in the Bill. The Domestic Violence, Crime and Victims Bill presented the earliest opportunity to see these new measures enacted. That is the background to why these measures appear before your Lordships' House today.
Therefore, the Government have introduced Amendments Nos. 18, 19, 20, 62 and 63 to the Bill. Amendments Nos. 102 and 103 amend the Long Title. These measures will give civilian enforcement officers (CEOs) and approved enforcement agencies (AEAs) the powers they need to improve the enforcement of fines, community penalty breach warrants, and the execution of fail to appear warrants.
By way of background I should explain that CEOs are employed directly by the courts or the police and execute warrants ordered by the court in relation to offenders who wilfully default on their penalties or refuse to attend court when summonsed. AEAs perform a similar contracted service in those areas where the courts have entered into partnership with other agencies to underpin effective enforcement of the orders of the courts. In carrying out their duties, both CEOs and AEAs are expected to adhere to the same standards of conduct. AEAs and the officers they employ must satisfy the conditions set out in the Approved Enforcement Agencies Regulations 2000. The national standards are available on the Department for Constitutional Affairs website, but, for example, those regulations specify that no officer employed by an AEA could have a criminal conviction punishable by imprisonment or a conviction for dishonesty or violence. For example, when employing CEOs in Devon and Cornwall, criminal background 241 checks are carried out on the individuals as well as in-house checks to ensure that there are no outstanding warrants.
CEOs and AEAs have varying backgrounds; they include former police officers and others with experience of enforcement activities and debt management. I can assure the House that both sets of officers will receive thorough training in the execution of warrants, human rights and health and safety before they can operate—it will relate to both their existing powers and the proposed ones.
To that end, we want civilian enforcement officers and approved enforcement agents to have the power to enter and search premises to find an offender in order to execute a warrant of arrest, commitment or detention. This power can also be used in executing a warrant of distress, where he or she is in default in paying a sum, as a result of conviction. In all the above cases, the powers can be used only where the officer has reasonable suspicion that the offender who is the subject of the warrant is present. We also want them to have the power to search an offender for dangerous articles, such as hypodermic needles or knives, and items that the offender may use to facilitate an escape from lawful custody, and also the power to use reasonable force in exercising the powers that I have already outlined.
The new powers will not only lead to the more effective enforcement of fines, community penalties and "fail to appear" warrants but will also provide health and safety benefits for civil enforcement officers employed by both the courts and the police, and staff deployed by approved enforcement agencies. The officers involved in executing those warrants will, when an offender is deemed high risk, rely on police support. Those officers will receive detailed guidance and training before they can exercise the powers. We will involve key stakeholders, such as staff representative bodies, in the development of that provision. The main cost of implementation of those policies will be in the training.
I can assure noble Lords that the powers contain safeguards in that the power of entry can be used only to the extent that it is "reasonably required", a search can be conducted only on "reasonable grounds", and any force must be "reasonable" and "necessary". Should a civilian enforcement officer or member of an AEA exceed those limitations, the acts would no longer be lawful. The legal consequences will depend on what has been done, but a grievance can be pursued through the Magistrates' Courts Committee, through the AEAs' own complaints procedures, which they must have, or through legal redress in the criminal or civil courts, depending on the charge. We anticipate that powers of entry and search will be used only at the end of the process when necessary to enforce a warrant.
Secondly, we have also given magistrates' courts a new power to request specified information on offenders from organisations in the public and private sectors; for example, a financial institution or local authority. The information requested by the courts is 242 intended to help trace offenders whose whereabouts have become unknown. At present, courts do not have access to such data should the organisations involved be unwilling to co-operate. The measure is for use only in assisting the execution of criminal warrants, and the power will be available only to the courts.
Currently, in instances where the courts have been provided with poor-quality information, such as false or multiple addresses, or where information is out of date, they are severely hampered in the effective enforcement of fines and community-penalty breach warrants. The new power will help the courts by allowing them to require organisations to provide data where it is thought that more up-to-date information is held about a hard-to-trace offender. The intention is that this power will be used only on a case-by-case basis in helping the courts determine the location of an untraceable offender. All powers comply with the current data protection legislation. As this is a change to the current system that will have an effect on employers, albeit a relatively small number, we have consulted employers' representatives about the new power and its possible impact on business. They are happy that it places no significant burdens on them.
Thirdly, we are also putting in place measures that will allow proceedings for breach of a community penalty to be commenced and heard by a magistrates' court other than the court responsible for overseeing the community penalty. Magistrates' courts are restricted in respect of which court can enforce a community penalty in the case of non-compliance by the offender. Restrictions vary according to the type of sentence, but in practice they tend to mean that only the court that passes sentence can issue a warrant or summons to secure the attendance of an offender who is in breach. The warrant or summons must specify that the offender appears before that court.
If the offender moves away from the area, it will create problems for enforcement. Often, CEOs and AEAs have to travel long distances to execute a warrant. Although the CEOs have national jurisdiction, the execution of a warrant in another court area is often inefficient and impractical. The problems are compounded when the offender cannot be found at the address on the warrant.
Giving magistrates the power will not only enable the more effective and efficient enforcement of community penalty breach warrants but will lead to the more effective and efficient use of civil enforcement officers and approved enforcement agencies by the courts. It is worth saying that, during 2002–03, only 29 per cent of the warrants were executed within the target period. That has improved to 43 per cent, but the aim is a 75 per cent enforcement rate within the target period. In order to achieve that, the court will have received all the relevant paperwork before the proceedings take place.
As I noted at the beginning of my speech this evening, the effective enforcement of criminal penalties and "failed to appear" warrants by magistrates' courts and the police is a priority for the Government and sits at the heart of the criminal justice 243 system. Progress is being made, but we must do more to build on it and sustain the improved performance. These measures will help to do that. I can also confirm to noble Lords that, on the implementation of the powers, we will evaluate the effectiveness of the powers themselves and of the impact of the policy.

§ Baroness Anelay of St Johns
My Lords, I am advised by the Deputy Speaker that it would not be appropriate for me to speak to Amendment No. 62 in this group, although it is grouped with these amendments. There are more ways than one of skinning a cat—I love cats, so I would not do that. I shall speak briefly to the amendments moved by the noble Baroness, and I shall not move Amendment No. 62A when we reach it.
Yesterday, the noble Baroness, Lady Ashton of Upholland, invited my noble friend Lord Bridgeman and me to a meeting to discuss this group of amendments. I am grateful to her. The way in which she presented the Government's position means that she has answered almost just about all the questions that I was going to ask her today.
It is a new batch of provisions. The noble Baroness will not be too surprised—I told her yesterday that I would do it—if I tease her a little about dropping them into the Bill with the parachute offered to the DCA by the Home Office. When the provisions were introduced in another place on 6 July, the Minister's colleague Mr Leslie said: we saw an opportunity to make what I regard as vital changes to the law".—[Official Report, Commons Standing Committee E, 6/7/04; col. 358.] One could say that the changes were so vital that no one had mentioned them until then, but, never mind, I see the reason behind the proposals. As a hard-bitten old magistrate, I was frustrated at the difficulty of serving warrants and getting effective fine enforcement in particular cases.
The proposal will take enforcement further within the constraints that the Minister set out. There will be proper training and guidance. There has been consultation with employers, and there will be safeguards for people caught up in the process. When a warrant is executed, there may be third parties around, particularly in a house in multiple occupation, who may find themselves injured or inconvenienced. There must be some method of redress for them. The noble Baroness has outlined it today.
I am content with the way in which the noble Baroness has presented the information, particularly the information that she gave about the dividing line between the occasions on which a civilian should take action and the occasions on which they can take action only with the police or when the police would take that action. The Government are aware that we are concerned about the growing tendency on the part of the Government to use civilians instead of police 244 officers. However, in this regard, the Government have drawn the right dividing line between their functions.

§ Lord Thomas of Gresford
My Lords, I, too, thank the noble Baroness for having a meeting with my noble friend Lady Walmsley and me to explain these provisions. Amendment No. 63, which introduces the procedure on breach of community penalties and so on, is to be welcomed. It is a very good idea that a person does not have to be taken half way across the country if he is in breach of a community penalty.
Providing that there is a proper transfer of information between one court and another, so that there is no sentencing for breach of a community penalty in ignorance of what has happened in the previous proceedings, that is fine. The noble Baroness was good enough to give us that assurance yesterday and to repeat it in her remarks today. Precisely how that is done, whether by transfer of the file or by some magical IT, for which she is also responsible, is something that we will be very interested to investigate.
On the issue of disclosure orders, we are concerned, as is the noble Baroness, Lady Anelay, with the increased use of civilian enforcement agencies. That is a growth industry. I am not very happy with it. I hope that it is not possible for an approved enforcement agency to do private work alongside public work, where the temptation to use information, for example, obtained by a disclosure order, would be given to private clients of the same organisation. I know that it would be an offence. I hope that, in accordance with the provisions set out here, it is made absolutely plain in contracts with that agency and in directions that are given to the court that the purpose of the disclosure order is limited to executing a warrant against an individual and that the information thus obtained is private.
I hope to say a little more on Amendment No. 62 if the noble Baroness, Lady Anelay, expands on Amendment No. 62A. While I indicated unease at the use of civilian enforcement officers and, more particularly, enforcement agencies, I have a serious objection to the use of force when doing the various things that new Schedule 4A would allow: in particular, the searching of arrested persons by force; the entry to levy distress by force; and the executing of warrants of arrest with the use of force.
In some circumstances, I suppose, a warrant of arrest can attract the use of force. But the searching of individuals by force, left to a civilian agency, is a new departure in this country. It was a matter that was the subject of protest by my colleague Mr David Heath when the matter first came before the other place in July. I repeat the concerns that were set out then.
As regards Amendment No. 62A, I see that the noble Baroness, Lady Anelay, is shaking her head and we will not be discussing it. I am sorry that she will not pursue the matter a little further.
Again, I hope that guidelines will be sent out to the organisations concerned that it will be contractually part of their responsibilities to ensure that only 245 reasonable force is used and that there is a review of contracts too. That is the sort of thing that bedevils the privately run prison service at the present time.