§ Mr. Rossi
I beg to move amendment No. 17. in page 3, line 43, leave out`Part I increasing maximum fines'.Those hon. Members who served in the Committee will recall that we decided to drop the proposal to increase the period of imprisonment from three months to six months. The reason was quite simple, namely, that while there is a case for the inflation-proofing of financial penalties, the same arguments do not apply to custodial penalties, because a term of imprisonment remains constant year in year out.
The amendment in Committee removed part II of schedule 1, and consequently clause 3 needs only to refer to schedule 1. The amendment removes the unnecessary words from the clause.
§ Mr. Rooker
I am grateful to the Minister for what he said, but his remarks need slight embellishment. The Government withdrew the proposal to increase maximum prison sentences promoted by the DHSS because of the actions of my hon. Friend the Member for Ormskirk (Mr. Kilroy-Silk), who pointed out that the Home Secretary had gone round the country pleading for shorter prison sentences.
§ Mr. Rossi
That point was made by the hon. Member for Ormskirk (Mr. Kilroy-Silk), but it was also made by a number of my hon. Friends. I accept at once that overcrowding in prisons persuaded me to ask leave to 921 withdraw the amendment in Committee. However, I was equally—perhaps even more—impressed by the argument that an increase in fines because of the drop in the value of money does not necessarily mean that we must also increase prison sentences.
§ Mr. Kilroy-Silk
The Minister is as pathetic now—[HON. MEMBERS: "Oh."] Oh yes. I had not intended to intervene, but I do so simply because of the false impression that he has given about what happened in Committee. The Minister reduced the period of imprisonment because he accepted amendments that I had tabled. He accepted them because it was patently clear—this is obvious to anyone who reads the Committee debates—that he had absolutely no defence for what the Bill proposed. In view of the argument deployed in Committee, as well as what the Home Secretary said about the need to avoid imprisonment for non-violent offenders, there was no case at all for increasing the length of imprisonment.
§ Mr. Rossi
The hon. Gentleman has often made the point that there should be no custodial sentences for nonviolent offences. We know that that is a matter about which he is concerned, but that was not the argument that persuaded me to make this amendment.
The hon. Gentleman will remember that we had a long discussion about maintaining consistency between penalties for different types of offences. Although he may well be right—I do not judge his thoughts on this matter—it is a question for discussion in the wider context of criminal law as a whole. He must discuss that matter elsewhere. If he is able to persuade those who are concerned with questions of criminal law and the type of penalties that should be imposed for non-violent offences that there should be a substantive change for every type of non-violent offence it will follow that offences in the DHSS sector will follow suit. Therefore, it is unfair of the hon. Gentleman to make the point that he has.
I invite the House to reject the amendments, because they follow the principle—[HoN. MEMBERS: "They are not being moved".] Very well, I need say nothing more about them.
§ Amendment agreed to.
§ Mr. Kilroy-Silk
I beg to move amendment No. 37, in page 4, line 2 at end add—`(3) The Secretary of State shall make regulations which shall make provision whereby any person charged with an offence under any enactment amended by subsection (1) above and Schedule 1 to this Act shall be furnished with a form requesting details of his income and financial commitments.(4) The power to make regulations under subsection (3) above shall be exercisable by statutory instrument, and regulations so made shall be subject to annulment in pursuance of a resolution of either House of Parliament.(5) Before imposing a fine under any enactment amended by subsection (1) above and Schedule 1 to this Act, a court shall, when considering the offender's means, have regard to any completed form furnished to the court by the offender under regulations made under subsection (3) above'.The Government are proposing a substantial increase in the fines that can be imposed by the courts on those found guilty of certain social security frauds. I shall not argue now whether or not the level of fines is appropriate. the amendment provides that a defendant in such a case shall be given a form requesting details of his income and 922 financial commitments. If the defendant chooses to complete the form—it is completely voluntary—the court must consider the information provided when imposing a fine for any of the offences covered in this enactment.
I accept that the fines currently imposed by the courts for these and other offences are rarely, if ever, imposed to the maximum. However, taken in conjunction with the Government's media-inspired campaign against alleged fraud by social security claimants, I am concerned that the courts may view the increase in financial penalties as a signal to impose harsher penalties.
My main concern is that, having increased the penalties, the courts will choose, at least on some occasions, to use those additional penalties. If they do so, and if more people are fined larger sums of money, it may be that more of them will default on payment and, as a consequence, find themselves imprisoned. If people choose deliberately and openly not to pay the fine, that is all right. That is their decision, and they must face the consequences that flow from it.
I am concerned about the situation that faces some of the poorest and most disadvantaged people in society, such as those on social security benefit. They may not have the means to pay. I am concerned, as I am sure the Minister is, that no one should end up in prison for default of payment of a fine imposed for an offence against social security legislation simply because that person is unable rather than unwilling to pay. That would go against my predilections and principles. It would fly in the face of the policy and exhortations currently emanating from the Home Secretary. He has my wholehearted and enthusiastic support in enjoining magistrates and judges not to impose longer than necessary sentences and not to impose prison sentences when a non-custodial sentence would suffice.
As the Home Secretary has repeatedly made clear, not least in his major speech to Leicestershire magistrates, he wishes to avoid imprisonment of all except the dangerous and violent offenders. If it is at all possible, he does not wish to see fine defaulters imprisoned. They tend to be concentrated in the urban areas, and they put considerable pressure on police and court time. They inevitably find themselves imprisoned in local prisons, which are often overcrowded. We all wish to avoid that.
I accept that the percentage of fine defaulters who are imprisoned is relatively small—and could be considered insignificant—but the absolute figures are quite large. About 17,044 were imprisoned in 1979, as opposed to 10,426 in 1973. The figure is increasing dramatically. I am trying to ensure that the figure is not increased as a result of this legislation. Although defaulters form only a small percentage, there are many of them in absolute terms. They form one quarter of the sentenced population at any one time.
The May committee, among others, said that wherever possible we should avoid imprisonment for fine defaulters. I want to quote from the Home Office research unit study No. 46 "Fines in Magistrates Courts", published in 1978. It analysed questionnaires completed by 368 offenders fined for various offences. It said:Defaulters were more likely than others to have reduced expenditure on food and housekeeping … Twelve per cent. of defaulters compared with only 2 per cent. of other respondents said that they deferred payment of rent, rates, hire purchase commitments or other debts. This finding is disturbing as it suggests that, in a small proportion of cases, pressure to pay fines caused serious financial difficulties.923 The survey found that 78 per cent. of defaulters had delayed paying the court because they needed the money for other things, such as—in order of frequency—shoes, clothing, food, housekeeping, rent, rates, unspecified bills, hire-purchase commitments, light, heating and public transport. Those are not frivolous, trivial or extravagant items, by any stretch of the imagination; they are important items in a normal household budget.
I do not think that the Minister would want, and I would not accept, a person who had been fined by the court—perhaps a head of household—being put in the intolerable position of having to decide at the end of a week whether to pay the fine, buy the necessary pair of shoes for his child, or provide an extra meal. That is an intolerable and indefensible position for any individual. Either he must go to prison in default of his fine or he must forgo necessary expenditure on items that are important to his family. I am sure that the Minister will agree with those sentiments.
The point at issue is, by what means should we try to avoid a defaulter being imprisoned because he is unable, rather then unwilling, to pay the fine? When the courts consider imposing a fine it is important that they should take a great deal of care when investigating an individual's financial circumstances. The amount of the fine must be related to what he can be reasonable expected to pay. A small fine may be far more significant to a man of low income than a large fine to a relatively affluent man.
Other countries go to great lengths to ensure that there is a close relationship between the fines imposed and the incomes of the offenders. The Swedish day-fine system has been discussed in the House. There is also the German system. They both attempt to ensure that the financial circumstances of individuals are ascertained before fines are imposed. A familar system was approved in principle by the Advisory Council on the Penal System in 1970. It was approved in principle by the Expenditure Committee and was endorsed by the parliamentary all-party penal affairs group. The Government's 1980 White Paper offered to explore the principle of introducing a day-fine system.
I asked in Committee—and I reiterate it now to a Minister who knows what we are talking about, and has the ability to put it into effect—whether it would be possible, while we are awaiting the review promised by the White Paper, to issue a practice direction to the courts to ensure that they follow the practice already applied by some courts, of making a substantial investigation into the financial circumstances of an offender before imposing a fine. I hope that the Minister will not retort that the Magistrates' Courts Act 1952 already imposes a duty upon magistrates to take account of an offender's means. We all know of that obligation. We also know—those in the House tonight who are lawyers, unlike myself, will have direct experience of it and can testify to it—that the examination is perfunctory. It is often hurried. Only a few peremptory non-investigatory questions are asked of the offender when the fine is imposed.
§ Mr. Andrew F. Bennett
Some of my constituents have said that if they go into the court wearing their best clothes—which they feel they should do out of respect to the court—they are penalised because they give the impression that they have more resources than if they had gone there in their worst clothes.
§ Mr. Kilroy-Silk
I am sure that my hon. Friend's remarks are true. We can only draw the logical conclusion from that. I accept that the courts have a duty to take account of an offender's means. I am sure that the Minister will agree that they do not do that job thoroughly or effectively. Such treatment should be applicable to all offenders who have fines imposed on them, not only social security offenders. However, in the nature of things, this is the only way in which I can make my case and find a peg on which to hang it.
The amendment's proposal is already applied in Scotland. It is not a pilot scheme, as the Minister insisted in Committee. On the evidence at my disposal it appears to work fairly effectively. It has contributed towards reducing the number of those unnecessarily and unfairly imprisoned. The amendment proposes a form analogous to the green-form legal aid scheme. The proposal has widespread support, not only from the Advisory Council on the Penal System, the Expenditure Committee and the parliamentary all-party penal affairs group, but from the Cheshire cat sitting smiling on the Conservative Back Benches, namely, the hon. Member for Paddington (Mr. Wheeler)—dare I call him my hon. Friend—who is an expert in this area. He has written a thoughtful and well researched pamphlet advocating such a measure
We all want to ensure that fines are paid—that there is a greater likelihood of their being paid than of the individual ending up in prison. In conjunction with the use of the form, the courts should be advised of the maximum amounts that people with low incomes can afford. That is crucial in this context. In places like West Germany, where a day-fine system operates, certain low rates of weekly payment are specified for those who are unemployed.
It should also be brought to the attention of the courts that at present the supplementary benefit system will directly deduct from benefit such things as repayments of fuel debts and rent arrears, but will make deductions only up to a certain maximum total amount each week. If it is officially considered that people on supplementary benefit cannot be expected to suffer more than a certain level of deductions each week, it would be quite wrong for a court to require weekly fine instalments that exceeded this amount. In some cases, the application of a form as I have described will reveal those circumstances. In the light of the income and the commitments of the offender, if he cannot possibly afford even the minimal amount that the courts would wish to impose the courts clearly should impose a non-custodial sentence, and make a community service order, an attendance centre order, or a probation order, or give a conditional discharge, instead.
The best outcome of this debate would be for the Minister—as I know in his own heart he would wish to do on this occasion, having tussled with him when we were in Government and he was proposing not dissimilar things when he was in Opposition—to say that he accepts the amendment. We should not need to force it to a vote, given what the Minister of State said in Standing Committee:I cannot accept the amendment at this stage. I shall draw to the attention of my right hon. and hon. Friends in the Home Office the pleas that have been made in this Committee dealing with this particular matter. I shall ask them to consider whether, within the general review of their legislation relating to magistrates, they will consider bringing forward something to deal with this aspect of the matter."—[Official Report, Standing Committee G; 10 March 1981, c. 107–8.]925 He was clearly in sympathy with the principle and general objectives of what was proposed then and I hope that he is in sympathy with what is now proposed in slightly more sophisticated form.
The Home Office has had several months to present a proposal. What I asked for then was nothing more than I am asking for now. If the Minister finds himself unable to accept my amendment, let him at least announce the establishment of a pilot scheme in one or more areas to assess the feasibility of the consequences of using such forms, either for social security offences or for offences generally. I hope that he will be able to respond to this positively and will bring the general points that I have made to the attention of the courts, either by means of a circular direction or by consulting senior members of the judiciary on the possibility of a practice direction in this area.
I hope that the Minister will feel able to do some if not all of those things. I hope that he will take this issue as seriously as I do and will ensure that we do not clog up our overcrowded local prisons unnecessarily, at the expense of £160 per week per person, with those who are already highly disadvantaged and deprived, who are not committed violent criminals, and who face imprisonment as a result of this legislation simply because they lack the means, not because they deliberately wish to flout the intentions of the courts.
§ The Minister of State, Home Office (Mr. Patrick Mayhew)
This amendment gives shape to an idea that is both helpful and attractive. It is an idea that originated, I think, with my hon. Friend the Member for Paddington (Mr. Wheeler), whom I am glad to see in his place and to whom the hon. Gentleman the Member for Ormskirk (Mr. Kilroy-Silk) paid a very well deserved tribute. I have noted the support it received from both sides in Committee. Although, for reasons which I shall explain, I cannot advise my hon. and right hon. Friends to support this amendment, I undertake to do two important things.
First, my right hon. Friend will consult the Magistrates' Association and the Justices' Clerks' Society and other appropriate bodies to see whether it would be practicable and desirable, not on a narrow but on a wider and more general scale than that proposed in the amendment, to employ a form for the purpose which we are discussing in this debate. Secondly, he will consult similarly to see whether we can usefully promote a pilot study to see whether, on a limited scale, in the first instance, perhaps, there is value in the use of such a form.
We share the intent that lies behind this proposal. We recognise that a very small proportion of fine defaulters will be sent to prison. I noted the hon. Gentleman's realistic assertion that, if somebody deliberately decides not to pay a fine imposed upon him and ends up in prison, well and good. That is his choice. That was a fair and realistic observation. I, for my part, think it essential that we should keep the ultimate sanction of prison, because without it I think that we would find much more deliberate defaulting on fines.
Only a very small proportion of defaulters go to prison, but it is important—and here I agree with the hon. Gentleman—that courts should, when fixing fines, be accurately informed as to the defendant's means. Similarly it is important that a fine should not, by its severity, 926 impose unintended sacrifices upon the defendant and perhaps his family. I agree with what the hon. Gentleman has said about that. That is not to say that fines should not impose a measure of sacrifice. If there is no difficulty in paying a fine it loses the greater part of its purpose. The hon. Gentleman's intent is to improve the accuracy of the information generally available to courts, and that is very proper and laudable. Full information about a defendant is essential to all aspects of sentencing, not just fines. Naturally enough, the practice of the courts already is to look to a defendant's means when fixing a fine. Section 31 of the Magistrates Court Act 1952 provides that when fixing the amount of a fine a court must take into consideration, among other things,the means of the person on whom the fine is imposed so far as they appear or are known to the court.Similarly, in cases where a defendant pleads guilty by post, as happens with certain minor offences, the Home Office recommends to the courts that he be given an opportunity on the plea notification form to mention any mitigating information about his financial circumstances. This is not a dead letter. Courts pay attention, and rightly so. I do not think that I can say to the hon. Gentleman, as he has asked me to do, that we will invite the authorities to issue a practice direction. The courts take this matter seriously. We are concerned to see whether they can be helped.
Nor is anybody sent to prison for defaulting on a fine as the automatic consequences of not having paid. The hon. Gentleman will know that when default occurs the court cannot issue a warrant of commitment unless it has conducted a means inquiry at which the offender has a full opportunity to explain his circumstances. It may do so only if it is satisfied that the offender either has the means to pay or that the default is due to his wilful refusal or culpable neglect and, furthermore, that all other methods of enforcement have been considered or tried. That is an important point that people outside might miss. If somebody has defaulted, he cannot automatically be sent to prison. A means inquiry must be conducted by the court. That is very important. Accordingly, I think that we can be confident that only very rarely does a prison sentence result from inadequate information as to the defendant's means.
The hon. Member for Ormskirk uncharacteristically made a serious mistake. He rightly said that about 17,000 people were sent to prison for defaulting on fines last year. He also said that at any one time a quarter of the prison population comprised fine-defaulters. At any one time last year, the average number of such prisoners was 1,000. The majority of fine defaulters do not serve more than four days.
The need for full information first arises when the fine is fixed. I am interested in the recently introduced Scottish practice. A survey of 2,000 cases in Scotland shows that only about 34 per cent. of recipients of the forms completed them. The majority were pleading guilty by post to motoring offences. It was a small survey and it might not be reliable. However, it is relevant to the question that must always be asked about a new procedure—will its results be worth the administrative candle?
The practice of issuing a form to defendants when criminal proceedings are commenced extends in Scotland to nearly all criminal offences, in contrast to the proposal in the amendment.
927 It would be wrong to introduce such a practice by means of main legislation applying only to offences under one statute. If we can prove that the idea is good, we should want to apply it generally and not narrowly. That is why we want to consult, and I undertake to do that. I do not say that to stave off unwelcome innovation. A Home Office working party is already examining what help can be given to courts in improving fine enforcement procedures. This will fit aptly into that work. The NACRO working party, of which the hon. Member for Ormskirk is a member, is due to report in the summer and we shall be most interested in it. I shall be surprised if it does not offer advice on this proposal.
I hope that I have said enough to show that we have a genuine interest in and sympathy for the proposal. If it proves practical, and if resources permit, it should have a wide rather than a narrow application. It is plain why we cannot support the amendment. I hope that the hon. Member will withdraw it.
§ Mr. Kilroy-Silk
I am grateful to the Minister for his constructive and helpful approach. I accept that it is not right to legislate for offenders on such a narrow front, but that was the only way open to me. I accept that the proposals should apply to offenders generally. Having heard what the Minister said about consultation, which I hope will be speedy and successful, I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.