HC Deb 09 April 1973 vol 854 cc1097-108

11.6 p.m.

Mr. Edmund Dell (Birkenhead)

The question which I wish to raise tonight is not one on which I wish to emphasise any policy disagreements. Successive Governments have accepted the principles outlined in the Streatfeild Report about the need for the courts to have adequate information before sentencing. Home Office circular 188 of 1968 defined the circumstances in which, as a normal practice, magistrates' courts should consider a social inquiry report. These circumstances included any sentence of imprisonment on a woman and a sentence of imprisonment on a man not previously sentenced to prison or borstal. The substance of the 1968 circular was repeated in 1971.

The Home Secretary has said that he wants to reverse the upward trend in the prison population, to ensure that imprisonment is used only where it is unavoidable in the interests of society. He wants the courts to use the alternatives to imprisonment, new and old, wherever possible. The principal means now open to him to influence the courts towards the use of alternatives to imprisonment is the social inquiry report.

There is evidence that magistrates usually accept recommendations made by probation officers in their social inquiry reports. By ensuring that social inquiry reports are provided when sentences of imprisonment, especially of first imprisonment, are under consideration, two things are achieved. First, courts will not imprison in the absence of relevant information. Second, courts will receive expert advice on the appropriateness of the various non-custodial alternatives.

Therefore, it is not policy that I want to discuss tonight but the Home Office's administration of its own policy, the policy I have just described. Here I detect an ineptitude which passeth all understanding. Unfortunately, within the procedures of the House we have no administrative audit of Government unless finance is involved. If the administrative processes of the Home Office in in pursuit of its own policies were subjected to audit in the same way that its expenditures are, I am sure that a Committee of the House would long since have called forth fire and brimstone upon it.

The administrative story begins with Section 57 of the Criminal Justice Act 1967. The power under Section 57 to make rules as to the use of social inquiry reports was not used. Instead, circular 188 was issued. There are many difficulties about Home Office circulars. They are not the law. It is open to the courts to disagree with them. For example, the courts might believe that probation officers' time would be better employed than in preparing reports in the circumstances covered by the circular. As my noble Friend Lord Gardiner has pointed out, in order not to appear to interfere with the independent status of the magistrates—independent of the executive—the circulars go not to the magistrates themselves but to the clerk of the court. The clerk may draw them to the attention of the magistrates. He may put his own gloss upon them. He may ignore them. In any case they are likely to be soon forgotten.

I quote from an article which appeared in The Times, which seems to summarise the position: Circulars long and short, lucid and obscure, gentle and sometimes emphatic, follow one another in endless succession. But circulars, even when they come from the Home Office, are not always read. Nor, when they are read, are they always understood. Magistrates and judges are busy and often overworked … Consequently the words of wisdom … fall on barren soil and things go on just as before, while the public pays for the printing, and the keen earnest men at Whitehall sigh, and perhaps something more, at the futility of it all. That is from an article published in The Times in 1910.

The circular system seems to remain very much what it was. Recently, however, I have observed that, perhaps again in order not to impinge on the independent status of the justices, the Home Office has taken to writing its circulars in a kind of cringing and apologetic language which undermines whatever effect they might have had.

For example, under pressure during the passage of the Criminal Justice Act 1972 the Home Office agreed to send out a circular commending to the courts the Widgery criteria on the granting of legal aid. The circular, dated 19th December 1972, said: It is the Secretary of State's understanding that these criteria are being generally followed. The Secretary of State cannot possibly understand anything of the sort. One of the criteria was that legal aid should be available for those given custodial sentences. On the previous 23rd November Michael Zander had published the results of a survey showing that over 80 percent. of persons sentenced by magistrates to such sentences were unrepresented.

Again the Home Office memorandum on the Criminal Justice Act, after re- commending the use of social inquiry reports in cases covered by Section 14— that is, cases where a first sentence of imprisonment is imposed—goes on to say that the Secretary of State acknowledges the practical problems in the way of adoption of the practice that at present exist in some areas. As he did not define the areas or the problems, and declined to do so when I put down a Question, the Secretary of State is simply providing the courts with a generalised excuse for ignoring his memorandum.

What was the effect of the 1968 circular? The Home Office of course did not know one way or the other. When in December 1971 I asked Questions about the use of social inquiry reports in the categories covered by the circular, I was told that the Home Office had no information. This ignorance did not prevent the Minister of State telling me that In general, the arrangements recommended in the 1968 circulars appear to be working satisfactorily."—[OFFICIAL REPORT, 8th December, 1971; Vol. S27, c. 320.] As so often happens with the Home Office, all this ignorance added up to a feeling of considerable but quite unjustified satisfaction.

In the course of debate on the Criminal Justice Bill in 1972, the Minister of State promised to investigate the efficacy of the circular and told me that, if he found it was not working, the Home Secretary would consider making rules under Section 57. By the summer of 1972 we at length knew that the circular was working anything but satisfactorily. A November 1970 sample of offenders taken by the Home Office had, when examined, yielded information about this subject. The situation was shown to be appalling. The figures, first given in another place, were also provided in answers to me on 26th July and 8th August 1972. Social inquiry reports had been considered by the magistrates' courts in only 44 percent. of cases involving men receiving a first sentence of immediate imprisonment and 72 percent. of women receiving a sentence of immediate imprisonment.

In inner London the position was substantially worse even than that. At least the satisfaction disappeared from the voices of Home Office Ministers. Viscount Colville referred to these facts in another place, although his remedy was hardly reassuring. He said: we should draw the attention of the courts to this very sad situation and go on with our administrative pressure and our exhortations. … "—[OFFICIAL REPORT, House of Lords, 17th July, 1972; Vol. 333, c. 567.] We were then four years from the 1968 circular. Obviously it was being largely ignored.

What then was to be done? The Minister of State told me on 8th August 1972 that the Secretary of State would be considering in consultation with representatives of magistrates and the probation and after-care service, the implications of the recently completed survey."—[OFFICIAL REPORT, 8th August 1972; Vol. 842, c. 364.] Knowing the Home Office's normal speed of work, I left further questioning for six months and then, on 8th February 1973, asked what those consultations had shown and what action was to be taken. The Minister of State then told me that a consultative document was about to go to the secretaries of a number of probation and after-care committees. In other words, a further six months had been wasted in a matter of considerable importance and urgency if the prison population is to be kept from growing unnecessarily.

Then on 23rd February 1973 the consultative document actually went out. It will cause at least a further six months' delay for little benefit by way of additional knowledge about the problem. The kind of information it asks for could as easily be supplied in one afternoon's telephone calls to selected probation officers and courts in different parts of the country. Instead of making a serious attempt to investigate the reasons for non-compliance, the document simply asks for views.

The nearest thing to figures that is asked for is a tentative "suggestion" that the courts should keep for eight weeks a record of cases where they "decide to dispense" with reports. This begs the question whether the magistrates "decide to dispense" or whether most of them, unprompted, are entirely ignorant of the circular.

The Minister has told me that the inquiry is not intended to be a statistical survey in controlled conditions".—[OFFICIAL REPORT, 19th March 1973; Vol. 853, c. 28.] In other words, busy people are asked to spend their time collecting statistics when it is admitted in advance that the material will have little statistical value: there will be no total figure of those covered by the survey because it has not been asked for; there will be no way of knowing how complete the returns will be; there will be no uniformity in the kind of information supplied because no uniform pattern of response has been laid down. The Minister had promised me in an answer on 8th February 1973 that the survey would show the extent of compliance with the circular. It will not do so because the necessary information is not asked for.

Above all, the consultative document lakes no account of the fact that one of the most likely reasons for non-compliance is ignorance. I quote the words of a probation officer who wrote to me about this subject in January 1972: I am sure that the large majority of magistrates … are completely unaware", of the circular. The nature of the consultative document makes it impossible to investigate this aspect of the question, which happens to be both important and to bear on the general question of the utility of circulars.

When Section 14 of the Criminal Justice Act 1972 was introduced, the Minister suggested that it would mean that, as a rule, social inquiry reports would be provided for those who might be given a first sentence of imprisonment. There is no reason to think that this will happen now any more than it happened following the First Offenders Act from which the relevant words of Section 14 are taken. Such evidence as existed showed that the majority of cases falling within the ambit of the First Offenders Act who were sent to prison were sent without the benefit of a social inquiry report. We have no reason to think that anything different will happen following Section 14 unless the Home Office takes effective action.

I accept that there has been one significant change in the situation since 1968 —Section 37 of the Criminal Justice Act, introduced by the Government at the eleventh hour. But the availability of a last-minute lawyer to help a convicted person before sentence is no substitute for a social inquiry report, and the Home Office accepts that it is no substitute.

The whole story is one of Home Office dilatoriness and unwillingness to take effective action. I know that probation officers are hard-worked, but the additional numbers required to carry out Home Office stated policy would not be great, and in any case it is a question of priorities. If Home Office Ministers want to keep people out of prison wherever possible, as the Department says it does, it will have to give the making of social inquiry reports the necessary priority. It is a curious conception of priority which allows a man to be sent to prison without proper investigation— with all the effects which that has, including on his family, who are only too likely to become dependent on social security.

If the Home Secretary really wants to live up to the ambition which he declared in his NACRO speech, he will accept responsibility and at long last take effective action. In my judgment, effective action is likely to mean making rules under Section 57 of the Criminal Justice Act 1967.

11.19 p.m.

The Minister of State, Home Office (Mr. Mark Carlisle)

I know how assiduous the right hon. Member for Birken-head (Mr. Dell) is in pursuing the matter of the use by magistrates' courts of reports by probation officers on the circumstances of the offenders who come before them. He pursued it in the debates on the passage of the Criminal Justice Act last year, and he has returned to it on many occasions through Questions. I go a long way with the right hon. Gentleman: it is certainly the Government's intention, as expressed by my right hon. Friend the Home Secretary, to keep people out of prison wherever that is possible.

As the right hon. Gentleman claims always to be extremely accurate with his figures, I should like to comment on what he said today about our failure to implement what was required with regard to social inquiry reports and about the continual increase in the prison population which this would cause. In fact, the prison population is 2,500 fewer now than in 1970. Therefore, perhaps the record of the Home Office in this respect is not as bad as the right hon. Gentleman always suggests. However, that is one aim.

I agree that it is important, as the right hon. Gentleman has often said, that, consistent with other demands on the available resources of the probation service, the criminal courts should be given information about offenders appearing before them and should certainly have information about anyone they propose to send to prison, particularly when it is for the first time, and that they should make use of that information. About that there is no difference between the views of the right hon. Gentleman and those of the Government.

We differ in two ways. First, in all these matters the right hon. Gentleman always believes that the best method to move is by way of dictation or direction to the court, whereas I believe that on the whole the best use of these powers by the court is on a basis of discretion and encouragement, rather than a rigid and inflexible system. Although it has nothing to do with this debate, that may be similar to the difference between us on the issue of suspended sentences.

I do not believe that always requiring the court to adjourn a case for the purpose of receiving a report when the court is satisfied as to the manner in which it will deal with an individual is necessarily the best way in which to preach the importance and usefulness of reports. Secondly, I believe that we must keep a balance between the probation services commitments to the preparation of reports and its primary function of supervising offenders placed on probation.

The right hon. Gentleman said that all this was a matter of priorities, and of course I agree. Undoubtedly in a perfect world, where there were no constraints on resources, one would wish to see a situation in which in every case, other than the most trivial, coming before a magistrates' court, just as happens today with the Crown courts, there would be a pre-trial probation report. But we have to deal with the situation as it now exists.

The fact remains that we have to consider priorities. Despite all that the Government have done to encourage an increase in the size of the probation service—and I believe that the present Government have done more to increase the size of the probation service than has been done by any previous Government —that service remains under heavy pressure in some areas and new demands upon it are generated both by the greater use of existing functions and by the new functions imposed upon it by the Criminal Justice Act. The need to provide social inquiry reports for the courts must be weighed against those other factors.

Much of the recent growth in the demand on the service over recent years —one might say a major growth point in its work—has been in the provision of pre-trial or pre-sentence reports for the courts. In 1965 social inquiry reports were prepared in 43,456 cases of adults appearing in magistrates' courts. In 1968 that figure was 66,000, in 1970 it was 91,335 and in 1971 it was in the region of 94,000. Clearly the use of social inquiry reports in the magistrates' courts has increased substantially over recent years. If we consider that 94,000 reports on adults in magistrates' courts were prepared in 1971, and that there were 33,000 receptions into prison without the option of a fine, of which 18,000 were known to be on a second prison sentence, it is to be noted that the volume of reports prepared far outweighs the number of sentences of imprisonment imposed on individuals in the magistrates' courts.

Mr. Dell

The hon. and learned Gentleman used exactly the same argument in Committee. He subsequently found out the appalling figures, which he then had to publish.

Mr. Carlisle

I agree that the figures are disappointing. I am saying that there is steadily becoming a wider use of the reports in the magistrates' courts. That is shown by the figures which I have quoted. It is reasonable to compare the number of reports prepared with the number of persons sentenced to imprisonment. Maybe in many cases the magistrates' courts consider imprisonment and decide not to impose it.

The trend which I have described started in the higher courts in 1971 with the Streatfeild Committee report. I think the right hon. Gentleman will agree that what happened during the passage of the Criminal Justice Act, 1967 was that an amendment was moved by the late Sir John Hobson, a previous Conservative Attorney-General, which asked for what the right hon. Gentleman has persistently asked for during the course of the 1972 Act, and that this was resisted by the last Labour Government—namely, the requirement that no one should go into custody for the first time without the preparation of a social inquiry report.

In the place of such an amendment Lady Bacon, the then Minister of State, moved what is now Clause 57 of the 1967 Act, giving a rule-making power. During the course of the debate she said that rather than use the rule-making power conferred by the provision, it might prove more expedient to send circulars to the courts recommending them to obtain social inquiry reports in specified classes of case.

I accept the right hon. Gentleman's quotation from The Times of 1910 about the note that the courts take of Home Office circulars. However, I am sure he will agree that it is a delicate line which the executive has to take when sending circulars or advice in the form of memoranda to the judiciary. We must remember the importance of the tradition of powers in this country. I am sure the right hon. Gentleman realises that we must be careful of the way in which the executive attempts to impose its views on the judiciary.

The last Labour Government sent out the circular to which the right hon. Gentleman has referred which set out the circumstances in which the Home Office believed that a social inquiry report should be drawn.

Then, as the right hon. Gentleman has said, we come to the Criminal Justice Act 1972. When we were debating what is now Section 14 of that Act, imposing a new condition on the courts so that a court cannot send to prison anyone who has attained the age of 21 but has not previously been sentenced to imprisonment unless it feel that there is no other appropriate method, and for that purpose obtains information on the circumstances, taking account of any information before the court relevant to the character and physical and mental condition of the defendant, the right hon. Gentleman moved an amendment specifically calling for the inclusion of a social inquiry report.

In resisting that amendment, I made two points. First, I concede that I said that the courts were usually using these reports and, secondly, that Section 14 would require information to be statutorily required, which would normally mean going for a social inquiry report. That section, together with Section 37. has only recently come into force, and I have no doubt that those two sections are aimed at, and will certainly succeed in giving greater emphasis at the moment of time when magistrates' courts may consider it necessary to send a person to prison for the first time, by drawing specifically to their attention the statutory requirement to obtain information about that person. I said in the debate that we would make what inquiries we could to see whether the terms of the 1968 circular were being carried out.

The right hon. Gentleman has mentioned the figures tonight. I shall not go into them again and take up time. I concede that they show that reports were not used in magistrates' courts as substantially as I had indicated. They were used in about 37 per cent. of cases in which a man received a first sentence of imprisonment. The use of the reports was not as substantial as I had led the right hon. Gentleman to believe was the view of the Home Office, and it was that that put us further upon inquiry.

It was upon receipt of that information that it seemed to us in the Home Office that we should go further into this problem and deal with it not as the right hon. Gentleman wished us to do—by further statistical surveys—but by way of inquiry into the problem with the cooperation of the magistrates, their clerks and the probation service, to find out why these reports had not been used as often as I had imagined. It was for that reason that in February of this year we sent out the circular to which the right hon. Gentleman referred, to try to discover the reasons—whether staff shortage, the information that is required in probation reports or the need for an adjournment after conviction. I know that the right hon. Gentleman says that this was not an accurate statistical analysis. It was not intended to be. It was an attempt to find out, with assistance, the causes for the shortfall in the figures.

I can tell the right hon. Gentleman that as a result of this inquiry we are having the situation looked at over a period of eight weeks starting in April of this year, and we shall have to bear in mind what further steps will be necessary. I stand by what I said in the debate in Committee.

We believe in a wider use of information about offenders before sentencing, in the form of social inquiry reports. We want to see them widely used, and we believe that the Act will assist in achieving that. We shall look with interest at the result of our survey and we shall consider whether in any further steps that are required we need to move by encouragement rather than edict.

Question put and agreed to.

Adjourned accordingly at twenty-six minutes to Twelve o'clock.