PROBATION ORDERS (VARIATION OF STATUTORY LIMITS) ORDER 1978

HL Deb 09 March 1978 vol 389 cc1005-10

7.14 p.m.

Lord HARRIS of GREENWICH rose to move, That the draft Probation Orders (Variation of Statutory Limits) Order 1978, laid before the House on 31st January, be approved. The noble Lord said: The purpose of this order is straightforward. It is to reduce from one year to six months the minimum period of supervision which a court may specify in making a probation order. Accordingly, and subject to Parliamentary approval, the order would enlarge the sentencing discretion of the courts by empowering them to make probation orders for a period extending from a new lower limit of six months to the existing upper limit of three years. It would make no change in the other well-established provisions relating to probation, including the need to secure the consent of the offender and the availability of requirements and sanctions.

It may be helpful if I rehearse fairly briefly the background to the decision to invite Parliament to approve the order which my right honourable friend the Home Secretary would like to make as soon as possible. During the last few years, the probation and after-care service in England and Wales has moved forward in an impressive and imaginative manner.

I am glad to be able to say that there has been a readiness to engage in experimental and innovatory methods of treatment. A notable example is the introduction of differential methods of supervision which has opened up the possibility of carefully structured short-term supervision. While selection of offenders for such methods is crucial, experience has shown that it is possible to identify some whose problems and needs lend themselves to short-term intervention where the approach to case work is centred on specific tasks. A prime consideration is that the offender should have the capacity and motivation to respond in identifying and pursuing realistic, relevant and attainable goals.

This experience has demonstrated that a positive and productive relationship can be established between selected offenders and their supervising officers rather earlier than might otherwise have been the case. It has further proved possible to sustain joint and planned efforts towards agreed goals. Both parties should be able to see that, by achieving these goals, the offender should be better able to cope and be less vulnerable to the kinds of social pressure which in the past have contributed to his offending behaviour.

Developments along these lines led the Government to include a power in the Criminal Law Bill which was brought forward during the last Session of Parliament to enable my right honourable friend to vary the minimum and maximum period of probation by order, subject to the Affirmative Resolution procedure. This provision became Section 57 of the Criminal Law Act. Shortly after Royal Assent, the Home Office embarked on an extensive process of consultation involving members of the Judiciary, the Magistrates' Association, the Justices' Clerks Society and the representative organisation of the probation and aftercare service.

The draft order follows directly from the results of this process, which were that, broadly speaking, the bulk of those organisations consulted, including the Magistrates' Association, were in favour of the proposed reduction. It would also seem relevant for me to explain that the Home Office sought comments on the possibility of reducing the maximum period of probation from three years to two years.

Viewed from the point of view of professional practice in the probation and after-care service, there are strong reasons for contemplating a change of this character. On the other hand, it is clearly important to preserve maximum flexibility in matters of sentencing and to avoid action which might lead to any increase in the prison population.

The balance of these and other considerations led my right honourable friend to conclude that it would be inappropriate to invite Parliament to reduce the upper limit of probation and that he should instead issue guidance to the probation and aftercare service which would also be drawn to the attention of the courts, encouraging the use of administrative action to secure the early discharge of probation orders or the substitution of conditional discharge, wherever this is appropriate.

If I may, I should now like to make one final point. Although the number of offenders who may be suitable for the use of the new power to make a probation order limited to six months may initially be relatively small, the experience gained may be of rather wider significance. The new power may provide added thrust on a broader front to the purposeful pursuit of realistic and attainable, if often necessarily limited, objectives in the supervision of a range of offenders. In the light of these considerations, we believe that the order will make a small but helpful contribution to the general administration of justice. I beg to move.

Moved, That the draft Probation Orders (Variation of Statutory Limits) Order 1978, laid before the House on 31st January, be approved.—(Lord Harris of Greenwich.)

Viscount COLVILLE of CULROSS

My Lords, it is a strange thing that during the whole of the passage of the Criminal Law Bill of last Session through both Houses not one word was said upon the enabling section from which this order stems. It is, therefore, very valuable to have the explanation which the noble Lord has given in the Official Report, particularly as the similar explanation in another place appears in a very obscure part of Hansard which may not be readily available.

I confess that when I first saw this order I wondered whether it was being introduced for the purpose of limiting resource implications. I am very glad to hear it is not. While I was listening to the noble Lord it occurred to me that since the two periods were laid down, the three years maximum and the one year minimum, there has, of course, been an opportunity for the Probation Service to work with selected offenders under the parole system, very often for periods of six months or, indeed, less. In those cases they have been very successful, not least, I would think, because the person concerned has already become very well-known to the prison welfare authorities, who are themsleves probation officers; he goes into the hands of the outside Probation Service with a good deal of information known about him and probably having been seen by his outside probation officer before he leaves the prison. If that is the kind of criterion of selection that is intended, then I can see nothing but good from it.

The only thing that concerns me a little—and I wonder whether the noble Lord, Lord Harris, would be able to say a word about this—is how it is going to work in practice in the courts. I have seen in my time many a social inquiry report, usually, it is true, at what used to be Quarter Sessions or in the Crown Court; but the format of those reports did not on the whole indicate the criterion that I think the magistrates would need to know before they made so short-term a probation order. Very often all that has been said—and, perhaps, I am a little out of date—is that, if the court saw fit, the probation officer thought that he could easily handle the matter; but there has never been any indication of how long the probation order should be. I therefore think that if administrative procedures are to be used in order to pick out certain probation orders which may be suspended or may be turned into conditional discharges, so, too, will administrative procedures have to be used in order to give the magistrates the proper information to enable them to choose the right cases. If the noble Lord could say anything about that, it would be a help. I am afraid I have not given him notice of the question. Otherwise, I am all for flexibility and innovation. This can be an experiment, and if it does not work it will not continue to be used; and therefore we are no worse off.

The noble Lord said something about the maximum. Of course, this order does not touch the maximum. If the Government wish to come along with another order which says something about the maximum, the House will listen to it on its merits at that time. So far as this order is concerned, I am as happy to support it as was my honourable friend in another place. Subject to anything the noble Lord can say about the point I have raised, I would now leave it to the House and hope that those on this side will support it.

Lord HARRIS of GREENWICH

My Lords, I am obliged to the noble Viscount. There are three points I should like to make in responding to what he has said. First, the example of parole which he gave is a good example because, as the noble Viscount rightly said, the Probation Service has had a substantial amount of experience now of supervising paroles for a relatively short period of time. Often these people are inevitably more criminally sophisticated than some person who may be made subject to a probation order for some offence in the courts. Nevertheless, it has given the service some experience in this direction of dealing with an offender over a relatively short period of time.

The second point I should like to make, which really rather reinforces the first, is that there has been some work done in Inner London, where as a result of an experiment which they carried out it was arranged that in appropriate cases orders which were made for 12 months—which until this order is passed has been the statutory minimum—would be discharged after a period of six months. This experiment was concluded in March of last year and was, broadly speaking, a success. Therefore, we are not going into wholly uncharted waters so far as this is concerned.

Thirdly, the noble Viscount raised the question of whether probation officers would make a specific recommendation to the court suggesting that this might be a case where a six months order might be appropriate. It is, of course, very difficult to influence probation officers in matters of this kind because inevitably it is a matter for the probation officer himself to decide how to put his recommendation to the court. The noble Viscount will know that the situation, at least in the past, has been that some courts have welcomed clear recommendations from probation officers, whereas, again I hope only in the past, some other courts have not welcomed clear advice from members of the probation service.

But I am sure that when this new arrangement comes into operation a great deal of thought will be given in the Probation Service as to whether or not they should, in some cases at least, make specific recommendations where they think the six months order would be the appropriate way of dealing with it. Lastly, I repeat the point I made when I moved this order; all this order does is to give greater discretion to the courts, and I think we all welcome that.

On Question, Motion agreed to.