Clause 14 (Hansard, 15 June 1972)

§ Mr. John Fraser
I beg to move Amendment No. 27, in page 11, line 32, leave out 'less than forty or'.

§ Mr. Deputy Speaker (Mr. E. L. Mallalieu)
With this Amendment we are to take Amendment No. 28, in page 11, line 33, leave out 'two hundred and forty' and insert 'one hundred and twenty'.

§ Mr. Fraser
The Clause introduces the concept of the community service order which I regard as an exciting and constructive development in non-custodial treatment. I deliberately use the word "treatment" instead of "punishment" or "sentence", because I hope that the order for community service will be of value to the offender and to the community.
The Advisory Committee which recommended this change was not dogmatic about the philosophy of the community service order. The committee spelt out some of its attractions. It was cheaper and more constructive than prison. It emphasised reparation to the community. It was a way of fitting the punishment to the crime", although I disagree with the use of the word "punishment" in this context. The committee said that the community service order would bring offenders in touch with those that provided help and support to the community.
I think that the attractions of the community service order are that community service should enable the offender to win approval for his service. The problem 1965 with offenders often is that they have been unable to win approval from the community around them. This new concept will be useful, because it will enable them to make reparation alongside volunteers who are not themselves offenders, and there will be the benefit of example. Finally, the community service order enables the offender to make reparation in an atmosphere of co-operation with the community and not in confrontation with authority. The problem with many offenders, once again, is that they are alienated from authority; and if an attempt is made to bring about a reconciliation this means an attempt being made by the offender as well as by authority.
The Advisory Committee stressed the experimental nature of the proposals. However, there were things which the committee did not recommend which appear in the Bill. First, the advisory committee did not recommend any minimum number of hours of service, whereas a minimum of 40 appears in the Bill. Second, the committee did not recommend a maximum period of 240 hours as appears in the Bill; it recommended a maximum of 120 hours.
The Amendment would bring the proposals in the Clause into line with those of the Advisory Committee. The Amendment is important for this reason. This is in essence an experiment. We do not know how it will work out. It therefore seems unnecessary, and perhaps dangerous, to fetter the discretion of the courts by prescribing a minimum period.
Let us assume the case of a young offender who lives by the seaside—perhaps a "bovver boy" who has caused some trouble on a Sunday afternoon. Let us assume that by coincidence an oil slick is on the beach of his sea-side town. A form of community service, which might only take 10 hours, would be working with volunteers to clear that oil slick from the beach. That would be taking part in doing something for his own community, perhaps over a short period of time, which would be directly relevant. However, if there is a minimum of 40 hours that would not be possible.
Let us take another example. The graffiti specialists that come before the courts could do something about community facilities such as street furniture and so on. Perhaps a short period spent 1966 in that direction might fit in well with what they did wrong in the first place.
There is the danger of setting a maximum target. If the period is too long it may be too hard and the idea of a community service in co-operation with others could break down. Any of us who have had anything to do with working in the community are aware of the fact there is a fairly high drop off rate even among volunteers. There is a danger if one has 240 hours as a maximum of a drop-off and having the offender exposed to failure. It may be that such exposure is the one thing that brought him into the court in the first place.
Although we welcome the experiment wholeheartedly, we want to see it enacted in the spirit recommended by the Advisory Committee. I will put some wider reasons for putting forward the Amendment. I say quite firmly that the Community Service Order must not be regarded as a punishment. It will be a method of disposal of an offender and it must not be something which we rationalise afterwards. It must not turn out to be something like prison to which we ascribe the qualities of punishment, deterrent, retribution, rehabilitation, education, training, medical attention and diagnosis. One would have thought that, with all those qualities, imprisonment was something invented by the director of the Carbolic Smoke ball Company. For something which has so many qualities it is remarkably unsuccessful. We do not want this form of disposal to be one that is rationalised afterwards. We want it to be not a form of punishment but a way of integrating the offender with the community against which he has offended.
There is a danger that if this form of treatment is regarded as a punishment it will have a kind of chain gang image which will stigmatise not only the offender but also community work and then volunteer workers who would otherwise co-operate in this kind of venture. It is something to be seen as a method of co-operation. It might be such work as clearing canals, decorating old peoples' homes, hospital visits, organising summer projects in deprived areas or organising play-groups—all things which can work only in an atmosphere of co-operation and not coercion. One wants to avoid the idea that it will stigmatise the work itself or the persons participating, whether 1967 they be former offenders or volunteers from the community.
Therefore, to ensure that the possibilities are varied and that the offender learns from experience and not from indoctrination, I hope that this Amendment will be accepted. It will have a legal framework in which the right kind of experience can be enjoyed, and at the same time it will be useful to the offender and the community. If it is too rigid, if there is too great a maximum, and a rigid minimum, that experience may not be conveyed and we shall be back to that which we want to avoid, the unsuccessful path of many other forms of punishment.

§ Mr. Carlisle
I cannot understand what the hon. Member for Norwood (Mr. John Fraser) means by his continual repetition of the phrase, "It must not be looked upon as a punishment". Any sentence imposed by a court is clearly a punishment. The hon. Gentleman may say that punishments have different ends and aims. Punishment may be to deter, to reform, or to achieve various ends, but it is still punishment. I am sure that the individual who receives an order, although he may consent, will look upon it as a punishment.
I think the Wootton Report used the word "punishment", or it may be a word I have picked up from our proceedings on the Bill. However, one of its characteristics was the deprivation of liberty as a means of punishment, or words to that effect. Certainly an individual who is required to give up his spare time to work under a community service order will look upon it as a punishment.
It may be that I am wrong in suggesting the word "punishment" appears anywhere in the Wootton Report. However, if this form of order is to be used widely by the courts, the public as a whole will require it to be looked upon as a punishment to the extent it believes that some penalty shall be imposed on an individual who has done wrong.

§ Mr. John Fraser
The Wootton Report used the word "punitive". Although the report said that it hoped offenders required to perform community service would see it in this light and not as wholly negative and punitive, we cannot 1968 escape the tact that there is some element of coercion involved because it is a choice against some other penalty. I want to emphasise that the spirit of co-operation with the community is important and the work should not be stigmatised.

§ Mr. Carlisle
I accept that the purpose behind the whole idea of community service is depriving an individual of his leisure rather than of his liberty. One principle behind it is that the court shall have power to make use of deprivation of leisure rather than having to deprive a man of his total liberty as such. I accept also the point about stigmatisation attaching to the work that is to be done.
The hon. Gentleman said that the Amendment is designed to bring the hours into line with those recommended in the Wootton Report.
The 40-hour minimum was recommended to the Home Office by the working group which was set up within the Home Office to consider the relevant practicability of the Wootton proposals on the basis that, if it were to be a penalty, a sentence, to use a completely neutral word, a method of disposal available to the courts for offences which otherwise would be punishable by imprisonment, to impose a period of less than 40 hours might be felt to be derisory.
The decision to raise the maximum from 120to 240 hours was to give greater flexibility so that, should we find that this new form of penalty is widely used by the courts and cases arise where they wish to impose a longer period than the maximum of 120 hours, they would be allowed to do so.
I should point out that subsection (6) specifically gives power to the Secretary of State to direct that subsection (1) of this section shall be amended by substituting for the maximum number of hours…such number of hours as may be specified in the order". If in practice it is found that 240 hours is wholly and unnecessarily excessive, the Home Secretary of the day would have power to consider making use of that provision. I repeat, I realise it is not in accordance with the recommendations of the Wootton Committee, which recommended a maximum of 120 hours; but it is being done deliberately to give the widest degree of flexibility to the courts in the hope they will come to look upon 1969 this method of disposal as suitably adequate for otherwise imposing a period of imprisonment. That is why the figures have been put in. It is in many ways a matter of judgment. Strangely enough, it was not queried in Committee, though I had imagined it would be.

§ Mr. John Fraser
We do not intend to flex our muscles again with a Division, but I cannot say that we are satisfied with the Minister's explanation.