§ House again in Committee.
§ [Amendment No. 46 not moved.]
§ Schedule 1 [Amendments of 1973 Act]:
§ Baroness Faithfull moved Amendment No. 47:
Page 59, line 47, at end insert:
("(1A) A court shall not make a direction under this paragraph unless it does so for the purpose of extending the period during which the offender is required to participate in treatment or therapy designed to reduce the likelihood of further sexual offences.").
§ The noble Baroness said: The Committee will be glad to hear that this is a probing amendment. At Report stage in the House of Commons the Government introduced amendments to the Bill empowering courts to impose longer periods of supervision for sex offenders. First, the courts would be able, as a condition of a probation order, to require sex offenders to attend at specific centres or participate in specified activities for longer than the normal maximum of 60 days. Secondly, courts passing a 1424 custodial sentence would be able to specify that sex offenders should be supervised on release for longer than the normal period of post-release suspension.
When he introduced the government amendments at Report stage in the House of Commons on 20th February, the right honourable John Patten, Member of Parliament and Minister of State at the Home Office, said,
These amendments will enable the courts to require many sexual offenders to undergo longer and more intensive programmes of supervision. The purpose is to increase the confidence of the courts—that is very important—and of the public in the arrangements for dealing with sexual offenders, to protect the public from the risk of serious harm from sexual offenders, and to try to help sexual offenders to reduce the risk of their committing further sexual offences".—[Official Report, Commons, 20/2/91; col. 287.]
§ Sexual offenders need positive help. If they are kept in prison for a long time or released on supervision for a long time and do not receive help, I can assure the Committee that the prison sentence will have done them no good; they will commit offences again. It is important that we help to rehabilitate those offenders in order that they may return to their families. That view has shocked many people, particularly when expressed by Lord Justice Butler-Sloss, who said that she hoped that many men would return to their families.
§ However, all we want to do is to lengthen their sentence or period of supervision if they are to receive help. We want to bring to the notice of the Committee the work of the Gracewell Clinic in Birmingham, which was set up privately by two men, Mr. Trevor Price and Mr. Ray Wyre. It is run privately with no money at all from the Government. I shall not go into detail about the Gracewell Clinic because the noble Lord, Lord Morris of Castle Morris, made a long speech about the clinic which appeared in Hansard on 26th March at col. 1015. Anyone wanting to know about the Gracewell Clinic will be able to read his speech. It is such a good speech that it will be quite wrong of me to repeat it.
§ I plead with the Committee that the Gracewell Clinic should be acknowledged and known and that the men who have committed these admittedly horrifying offences should be helped so that they can return to their own families. They can be helped in three ways: first, by being admitted to such places as the Gracewell Clinic where there is very careful treatment. Secondly, they should be allowed out on supervision after they have had time in the clinic. Thirdly, there should be lectures. Indeed an institute has been set up in Birmingham to give courses to prison warders so that they may help these men while they are in prison. Though that is a very important factor—many of the warders in the prisons of this country are glad to have this help—the environment and the kind of atmosphere that the Gracewell Clinic offers is something which should be financed, helped, supported and expanded throughout the country. I beg to move.
§ Baroness David
I support very strongly the amendment moved by the noble Baroness, Lady Faithfull. Everybody nowadays is worried about sexual offenders, whether the offences concern 1425 children or people of any age. We do not seem to have found an answer over the country as a whole. The Gracewell Clinic certainly seems to have worked very well. Its success record is very great. It has had 526 referrals and of that number 110 persons have been treated at the clinic. There are at the moment 21 residents.
Nobody who has been treated at the clinic has been reconvicted. It is a most remarkable record. The extraordinary fact is that, although it has this extremely good record, to date the clinic has had no help from the Government and no funding from them. My noble friend Lord Richard was speaking earlier about electronic tagging. He said that £700,000 was spent by the Government on that experiment. However, there has been no help whatever for this clinic which has an extremely successful record. It is not enough to have one clinic; we need many more.
I hope that the noble Lord the Leader of the House can say that the Government appreciate what has been done and that there can be some financial help. I am sure that the clinic depends very much on the brilliance of Ray Wyre and the people who are running the clinic. Other people could be instructed and helped by them to start clinics in other areas of the country. We know of the problems as regards sex abuse, particularly child abuse. It is a situation which everyone wishes to improve. The noble Baroness said that this was a probing amendment only. It would be nice to have a positive response on the matter tonight.
I have also learnt that no Minister has yet visited the clinic. That is very surprising indeed. I hope that the noble Lord the Leader of the House can tell us that that situation will be remedied fairly soon. We all realise that there is a problem here. I hope that this amendment will bear some fruit. I am very happy indeed to add my name and support to the noble Baroness's amendment.
§ 8.45 p.m.
§ The Lord Bishop of Worcester
I add my support to this amendment moved by the noble Baroness, Lady Faithfull. On Christmas Day last I visited a prison which shall be nameless. After the Christmas service I went to the prison hospital. The first person I saw was a man with a terrible scar on his face. He was a sexual offender who had been attacked by his fellow prisoners. We know in this Committee that it is inadequate merely to put sexual offenders away. In any event they have to be protected from their fellow prisoners. They need therapy which will make less likely the recommission of crimes of this nature. I do not know about other Churches, but the Church of England has received applications for funding for people to go to the Gracewell Clinic. It is not possible for us to fund on any realistic level. I do not know exactly how long a course lasts, but it costs £6,250. We might be able to support one prisoner but we cannot give support on a larger scale.
I am not talking about any particular party of government, but it is government money which is required. As has already been said by the noble Baroness opposite, the Government have supported 1426 other experiments in the past concerning community service and reparation. I hope that the noble Lord the Leader of the House will be able to tell us tonight that the Government will support this kind of therapy, otherwise it is no use the courts recommending a course of training and therapy because it will be unobtainable. I add my support to this amendment and the precept of government financial support for the likes of the Gracewell Clinic, many more of which are needed.
§ Lord Harris of Greenwich
I agree with what the right reverend Prelate has just said. He has been right in identifying one of the major problems which the prison service has at the moment. A very substantial number of sex offenders have to be held and there is the increasing size of the Rule 43 population. One of the elements in the Strangeways situation was the venomous attacks which were made on Rule 43 prisoners in Manchester. Therefore, there is no doubt in my view that this is an issue which deserves high priority from the Government.
I had the opportunity of visiting the Gracewell Clinic quite recently. I was very impressed by what is being done there. I recognise that the clinic rightly charges substantial fees for those who go there. Notwithstanding it runs at a deficit. The cost of its therapy programme is infinitely greater than the total cost of any service that it can provide for any particular probation service. I was impressed both by the quality of the staff and some of the offenders who were there. They were quite open as to the offences for which they had been convicted by the courts. They had committed offences of considerable seriousness. Undoubtedly. if the Gracewell Clinic had not existed the offenders would have been sent to prison for very substantial periods.
I do not want to make any ambitious claims on behalf of the clinic. I very much agree with the noble Baroness, Lady David, in saying that it is a great pity that no member of the Government has visited the Gracewell Clinic. I recognise the pressure on Ministers. I know that it sounds as though one is being unreasonable when one makes a complaint of this kind. The fact is that the entire project has been founded by a single individual. He has put into this clinic hundreds of thousands of pounds of his own money. Unless the clinic has some form of support from public funding in the future, there is a real risk over a period of time that the Gracewell Clinic might not exist. That would be a tragedy so far as our criminal justice system is concerned.
I am sorry that I missed the speech of the noble Baroness when she introduced this amendment; but I hope that the noble Lord the Leader of the House will be able to give us some message of encouragement so far as the clinic is concerned. I understand that they are now involved in work with the prison department in Birmingham and possibly elsewhere, but certainly in Birmingham. Many of us would be particularly pleased were we to be told that a Minister was going to visit the clinic.
§ Lord Morris of Castle Morris
The noble Baroness, Lady Faithfull, as she always does, put her finger on 1427 the key point when she quoted the right honourable John Patten when he said, on 20th February in another place,These amendments will enable the courts to require many sexual offenders to undergo longer and more intensive programmes of supervision." Then he said:The purpose is to increase the confidence of the courts —that is very important—and of the public in the arrangements for dealing with sexual offenders, to protect the public from the risk of serious harm from sexual offenders, and to try to help sex offenders to reduce the risk of their committing further sexual offences in future.
That is at col. 287 of the Official Report.
One should not put too much stress on a Minister's syntax or the order in which he puts things, particulary in the greenhouse effect of debates in another place. But the purpose of those amendments seems marvellously universal. Once again it seems that the Government have willed the end and failed to provide the means. The noble Baroness's amendment points this out and suggests a better course.
The Government's amendments, welcome as they are as they appear now in this Bill, will, if their purpose is achieved, increase the confidence of the courts, increase the confidence of the public, protect the public from sexual offenders, and finally—or is it a triumphal climax?—try to help sex offenders to reduce the risk of their committing further sexual offences in future.
A student was once writing a thesis on the literary works of the 17th century diarist, John Evelyn. In the introduction she tackled the difficult question of how her thesis should spell the diarist's name. She assembled all the evidence and laid it out. "We find spelling (a)", she said, "in 14 contemporary printed books. We find that spelling (b) is that used by his father and his grandfather. Spelling (c) is the way he is referred to in 66 legal documents of the time; while spelling (d) is the one he seems invariably to have used himself. Which should we prefer?"
"But", said her supervisor, "you have one class of evidence there which outweighs all the rest." "What is that?", said the student. "The spelling", came the reply, "which he invariably used himself. Use that, and the rest are unimportant." So also if we can successfully prevent sex offenders committing further sexual offences in future, we shall automatically increase the confidence of the courts and increase the confidence of the public, and protect the public.
As we have heard from all sides of this Committee, the Gracewell Clinic, which has no regular Government funding, which has not yet been visited by any Government Minister, has a most interesting record. No one treated at that clinic has been reconvicted. Q.E.D.
§ Lord Waddington
The whole Committee ought to be grateful to my noble friend for having raised this matter. I have been most interested to hear about the work of the Gracewell Clinic. The Home Office is following with interest the work that is being done there, and it is a good example of the role that voluntary and charitable effort can play in the criminal justice field. I shall certainly pass on to my right honourable friend the Home Secretary the 1428 suggestion that he, or one of his colleagues, should visit the clinic and give encouragement to those who are doing such important work.
I have no doubt whatsoever that there are plenty of cases where useful therapy is required, and that message has come over quite clearly in this Committee tonight. But if one turns to the amendments, one is talking about something slightly different. The Bill provides for extended supervision in sexual cases, and what these amendments would do would be to limit the powers of the courts to order extended supervision, only allowing the court to order extended supervision if therapy or treatment was going to be involved in that supervision, on the assumption, presumably —and I think it must he an assumption not justified by the facts—that no benefit could accrue to either the offender or the community in any case which might come before the court if extended supervision did not involve treatment.
I do not think anything that has been said here tonight leads me to suppose that anybody here believes that in every single case what is necessary is treatment or therapy. Indeed, one has to bear in mind that if treatment or therapy were not available for some reason or another, there could be benefit from supervision if only a benefit in greater protection for the public; the supervision perhaps making it less likely that the person would reoffend. I think what the Committee expects me to do is to accept the important message that has been given; namely, that the Government should take the closest interest in this voluntary work being carried out; but I do not think that the Committee would expect me to accept the amendments which actually would limit quite severely the powers of the court in a way that would be inappropriate.
One cannot judge—and one certainly cannot come to the conclusion—that in every single case therapy or treatment would be involved, or, to put it the other way round, that no benefit would accrue to the public by supervision unless therapy or treatment were involved. That is the right way to put it; but I repeat that I shall certainly pass on to my right honourable friend what has been said about the Gracewell Clinic, and the feeling of the Committee that it would be desirable if he, or one of his colleagues, could make a visit there.
§ Baroness Faithfull
I thank the Leader of the House for his reply. Most of us believe—and it is borne out by experience—that if men do not have specialised help and they just have a longer sentence, then they come out as bad as they went in. Therefore, it is in the interests of the community at large that men should be assessed as to those of them who need help and can benefit from help, and that they should receive help.
A number of men have come out, as the right reverend Prelate said, after having been cruelly treated by the other prisoners in prison. They come out, they divorce their wives, or their wives divorce them. They go to another part of the country and start again. I am grateful to the right reverend Prelate for having brought up the matter as he did. It is important, first, in order to diminish the number of people in prison; and, secondly, to prevent the offence happening again.
1429 My noble friend Lord Howe, who lives in the Midlands, wrote to me. He lives near the clinic and wished to express his support for the arguments.
I should point out just how much this has saved the prison service. I believe I am right in saying—the noble Lord, Lord Harris of Greenwich, will correct me if I am wrong—that it costs £335 a week to keep a prisoner. There have been 110 successful cases passing through the clinic. Therefore, the prison service has been saved a great deal of money even in that short period of time.
I am most grateful to my noble friend the Leader of the House for his comments. We shall study carefully what he said. In the meantime, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 9 p.m.
§ Lord Mancroft moved Amendment No. 47A:
§ Page 61, line 16, leave out ("is dependent on drugs or alcohol") and insert ("has a drug or alcohol problem").
§ The noble Lord said: In moving this amendment I shall, with the leave of the Committee, speak also to Amendments Nos. 47B, 47C, 47D, 47E and 47F. I should point out at this stage that there is a drafting error, for which I take full responsibility, in that there should be similar amendments to Amendments Nos. 47A and 47B as regards lines 19 and 25 on page 61 of the Bill where the words "dependency" and "dependent" occur. Those words should be substituted as set out in the aforesaid amendments.
§ This is a probing amendment. Its aim is to seek clarification. Last year we had the National Health Service and Community Care Bill and this year we have the Criminal Justice Bill. These two pieces of legislation add up to a great revolution in the way that we are to treat drug addicts and alcoholics both from the point of view of health and the situation when such people appear before the courts.
§ The problem with all such issues is implementation. Under the National Health Service and Community Care Bill the Government followed the 1982 recommendation of the Advisory Council on the Misuse of Drugs and the later recommendation of the Advisory Committee on Alcoholism and described these people as "problem drug takers" and "problem drinkers". However, they have not done so in this Bill. I fear that if there is no conformity in the terms used there will be confusion, especially when the National Health Service and the Department of Social Security become involved in the treatment process, as they must. As my noble friend Lord Ferrers told the House on Second Reading, they will be footing the bill.
§ There is also a difference between those who are dependent and those who are problem drug takers or problem drinkers. All dependants have problems but not all problem drinkers and drug takers are dependent. If one uses the term "dependency", all those who have problems but who are not dependent will be left out. There are two completely different forms of treatment. Therefore, to send someone who 1430 is not dependent but who has problems for treatment designed for people who are dependent would be a waste of time and money for all concerned.
§ Amendment No. 47C concerns a most interesting phrase; namely, "susceptible to treatment". I have not met anyone who uses drugs or who is dependent upon them who is not susceptible to treatment. I may have read the passage in the Bill wrongly, but it appears to me at present that such people would have the option to receive treatment only on one occasion. One of the things that we have learnt is that most or many people need to go perhaps once, twice or even three times for treatment. As I say, I may have read the passage wrongly, but that is what the position appears to be at present. I believe that the phrase "susceptible to treatment" requires further explanation.
§ Amendment No. 47D is an attempt to re-position slightly the options which the court will have at its disposal. As the Bill stands, there will be a tendency to impose treatment orders on people who could be more appropriately dealt with by using a community sentence, with perhaps a fine, a discharge (either conditional or absolute) or a standard probation order.
§ Experience has shown that compelling unwilling or disruptive individuals to take treatment does little good and merely interferes with the treatment process of the other people in the unit. I believe that the treatment condition should be used to reduce the number of offenders receiving short-term prison sentences rather than to increase the tariff for using offenders on whom the court intended originally—or would have—to impose a community sentence. I hope that this amendment will achieve the objective of reducing the use of imprisonment without increasing penalties on those who would not otherwise require such a stringent sentence.
§ Amendment No. 47E seeks to remove paragraph 6(7). I cannot understand why this subparagraph is necessary. It allows the transfer of an individual from one treatment facility to another. The notification of the transfer is adequately called for under paragraph 6(8), whereas the ability to make the transfer is allowed under paragraph 6(6). The only possible difference in subparagraph (7) is that it specifically mentions residential treatment. I should have thought that that was well covered in the previous subparagraphs and in the following one. I cannot see the point for the existence of that subparagraph.
§ Amendment No. 47F is about combination orders with a treatment condition. If an offender needs a treatment order then presumably his drug use is bad. Therefore, he will need to concentrate upon treatment. I believe that imposing a combination order is asking for trouble. Three people will be required to administer it, namely the probation officer, the person administering the treatment and the person administering the community care order. To put it bluntly, that is asking an awful lot of people who cannot commit a simple crime without getting caught. It is asking too much of them if they are to be brought before the court again for failing to meet all the conditions of the order.1431
§ Earlier this evening my noble friend Lord Elton mentioned this very subject. It is one which very much concerns us all. Drug users are people who cannot organise their lives. Indeed, that is one of the symptoms of drug use. Therefore, to ask them to do too much would be negative. I appreciate that there must be an element of punishment involved. However, there is no point in that if it is so great—although it would probably not be so great for an ordinary person —that it will lead them to re-offend. We believe that combination orders with treatment attached will be unworkable in practice and that they will detract from the benefits of the treatment conditions.
§ In conclusion, the amendments in no way alter the principles or the purpose of this part of the Bill. I brought them forward after wide consultation with colleagues in the private and voluntary sector and with the full backing of the Standing Conference on Drug Abuse. As the Government know, it is the private and voluntary sector which will have to shoulder the bulk of the work in this area. We believe that this fine tuning can only add to the successful working of the Bill when it becomes law. I beg to move.
§ Lord Morris of Castle Morris
From these Benches I am happy to support the amendments because they are obviously improvements to the Bill. They are in line with the general thrust of the Bill so far as it concerns drug takers. They introduce a welcome gleam of clarity into some of the areas still dark with imprecision.
The aims of the Bill are to reduce the use of custody for drug users, not to result in greater penalties being imposed on drug users on whom the courts had no intention of imposing a custodial sentence. At present, there is no guidance on the use of the treatment condition. The Government have placed reliance on Clause 5(2) of the Bill as a means of preventing inappropriate use of the treatment condition. It says that the community sentence must, in the opinion of the court, be the most suitable for the offender and must, in restricting the liberty of the offender, be commensurate with the offence. It is likely that for many drug users the court will be satisfied that both conditions are met and seek to impose a treatment condition. The effect will be to increase penalties rather than to reduce the use of custodial sentences. That would be particularly unfortunate.
All the evidence shows that the majority of drug users receive sentences of less than one year's imprisonment. Many are remanded in custody and this time is taken into account when calculating the release date. As all prisoners serving a sentence of 12 months or less are released at the 50 per cent. point of their sentence, most will then be released within two or three months of conviction. In such a short space of time no work can be undertaken in prison. No release plan is prepared. The drug user is released to exactly the same circumstances as those pertaining when arrested. Prison is no more than a temporary interruption to drug use, rather than an introduction to treatment.
I argue that the range of community options should be used first, before a specific treatment condition is imposed. That would offer a graduated criminal 1432 justice response, starting with a police caution requiring no court attendance, through other options like a fine, absolute or conditional discharge, a community service order, an ordinary probation order or a probation order with the attachment of specific activities, to a probation order with a treatment order. That would give much greater opportunity for parity of treatment.
I come now to the use of the words "dependent" and "dependency" in Amendments Nos. 47A and 47B. The arguments for the changes which are proposed are unanswerable. The word "dependent" is inappropriate because the use of drugs does not automatically mean that the person is dependent. Use can be spasmodic and it can be problematic, but the user is not necessarily dependent. The use of the words "problem drinker" or "drug taker" would not exclude a person from treatment who does not habitually use, but may use on a regular basis, and at these times may come into contact with the criminal justice system.
One example which has been provided for me instances someone who drinks heavily once a week and always drives home from the pub, or who regularly gets into a fight or commits criminal damage. Such a person would not be assessed as alcohol dependent, but he certainly has a drink-related problem if such behaviour only occurs when that individual has been drinking. Similarly, someone who uses stimulants heavily but only at the weekend and who only commits offences while under the influence of the drug is not dependent but he has a. drug-related problem.
If anything, the additional clarity which these amendments propose would lead to a greater inclusiveness, perhaps even to a greater severity in the courts. However, they would produce a clarity in describing the kind of people concerned which would be of assistance to the courts. Further, for similar reasons I support the deletion of the words, "may be susceptible to". I can envisage no drug problem which would not be susceptible to treatment. Everything is susceptible to some kind of treatment. A person with a drug problem cannot be described as suffering from some kind of catholic, invincible ignorance which makes him impenetrable to the holy spirit of the appropriate treatment.
Cessation of problem drug use can take a long time. Changing the habits that have dominated one's life for perhaps 15 or 20 years can be a lengthy process. A probation order with a treatment condition attached will obviously be fully negotiated with the drug user. Experience in the specialist drugs field has shown consistently that drug users sometimes need one, two, three or more attempts to reduce drug use with a view to stopping.
The courts must exercise both charity and patience in these matters. My concern is that the words "susceptible to treatment" imply that the drug user will be allowed only one chance. That is unrealistic when one is working with problem drug users. The removal of those words will allow for repeated attempts at treatment and the use of staged treatment goals as recommended by the Government's own advisory council on the misuse of drugs and Part 1 of 1433 its report on AIDS and drug misuse. In the interests of parity, clarity and charity I hope that the Government will look kindly on these amendments.
§ 9.15 p.m.
§ Lord Waddington
I have some sympathy with the intention behind my noble friend's Amendments Nos. 47A and 47B. He wants to ensure that probation orders with a condition of treatment for drug or alcohol misuse are not confined to those who are clinically dependent on drugs or alcohol, but are also available for those who regularly misuse these substances without being dependent. I hope I can reassure my noble friend that the Bill covers these cases through its definition of dependency. I draw the attention of my noble friend and of the noble Lord, Lord Morris of Castle Morris, to paragraph 6(10) of Part II of Schedule 1 which defines dependency on drugs or alcohol to include a propensity to misuse them. This is intended to cover cases where, for example, someone regularly over-indulges in drink and commits offences as a result. It no doubt covers someone who takes the occasional drink and then offends.
There are a couple of reasons why I would prefer to retain the wording in the Bill even though my noble friend's amendments may have the same effect. First, the words in the Bill are more precise. I fear that the courts may have difficulty in interpreting exactly what is meant by the term "drug or alcohol problem". That term may be commonly used but I am not at all sure how the courts would interpret it. Does it mean, for example, that the offender regularly drinks too much, or that he sometimes has one too many? Although the phrase may be popular with practitioners, in framing a statute great care has to be taken to be as precise as possible.
Secondly, the criteria in the Bill reflect the views of the Criminal Justice Working Group of the Advisory Council on the Misuse of Drugs. That working group recommended earlier this year that the criteria for a condition of treatment should include not only clinical dependency but also cases where the offender misuses drugs or alcohol and this contributed to the offence with which the offender is charged. The working group did not recommend the phrase "drug or alcohol problem".
As regards Amendment No. 47C, I can assure my noble friend and the noble Lord, Lord Morris of Castle Morris, that the drafting of the Bill does not rule out an offender being sent for treatment two or three times or however many times it takes. Amendment No. 47C would remove from paragraph 6(1) (c) the criterion that an offender's dependency may be susceptible to treatment. Instead, the courts would only have to be satisfied that the offender's dependency required treatment. This would mean that the courts could make a probation order with a treatment condition on anyone whose condition required it, regardless of whether or not his condition was susceptible to treatment. As such, my noble friend's amendment would go wider than the Bill. But we want to make the best use of the facilities that are 1434 available for the treatment of drug and alcohol misuse. This means, simply, that it would not be right to use up the treatment facilities in cases where these are not going to be effective. I cannot agree with the proposition advanced by the noble Lord, Lord Morris of Castle Morris, when he said that everything is susceptible to treatment.
Amendment No. 47D would prevent the courts making a probation order with a condition of treatment unless two further criteria were met. The first is that a probation officer thought that it would be impossible to supervise the offender unless he was subject to a treatment requirement for drug or alcohol misuse. The second is that, if it did not make a probation order with a condition of treatment, the court would otherwise pass an immediate custodial sentence. But this will restrict quite significantly the use of these probation orders. Under the Bill, custody is reserved for offences that are so serious that no lesser disposal will do. If a court considers that an immediate prison sentence would be necessary, then it will already have decided that a probation order would not adequately reflect the seriousness of the offence. This amendment may be thought apt for cases where the offender commits a very serious offence, such as inflicting grievous bodily harm to obtain money to fuel his addiction to drugs.
However, there are many cases where imprisonment would not be justified by the gravity of the offence, but the offender would benefit from a probation order with a condition of treatment. Such offenders would be excluded by this amendment.
We prefer the approach taken in the Bill. Clause 5(2) (a) requires a community sentence passed on an offender to consist of the order or orders most suitable for him. Clause 6(2) requires a court to consider a pre-sentence report before making a probation order with a condition of treatment so as to ensure that that would be the most suitable disposal. That, in our view, will effectively prevent the inappropriate or indiscriminate use of these probation orders.
Turning to Amendment No. 47E, it might be helpful if I explained what the provisions in sub-paragraphs (7) and (9) of paragraph 6 are intended to achieve. Sub-paragraph (7) is simply concerned with the variation of part of the programme of treatment for drug or alcohol misuse in which the offender is participating. Paragraph 6(3) requires a probation order which includes a requirement for such treatment to specify either an institution or place where the whole of the treatment should take place or a named person with the appropriate qualifications and experience to supervise a programme of treatment. If the institution or place named in the order or the named person changes, then the matter must be referred to the court for its consideration. However, provided the person or institution named in the order remains responsible for the treatment programme, paragraph 6(6) provides for a degree of flexibility in planning that programme of treatment without the matter necessarily returning to the court because paragraph 6(6) allows the person directing the treatment to make certain changes to the programme of treatment, with the consent of the offender.
1435 Turning briefly to Amendment No. 47F and paragraph 6(9) there has, I know, been some confusion about this provision. The reference to Section 10 has been react as a reference to Clause 10 of the Bill. However, Schedule 1 to the Bill amends the Powers of Criminal Courts Act 1973. The reference to "section 10 of this Act" in paragraph 6(9) is thus a reference to Section 10 of the 1973 Act.
My noble friend has raised a number of matters but I hope that his fears have been assuaged by what I have said. Certainly Amendment No. 47F need not bother him because all that the provision does is ensure that proper arrangements can be made to allow an offender who is normally resident in Scotland but is convicted in England and made the subject of a probation order, with a requirement for drug or alcohol treatment, to have his treatment carried out in Scotland. I do not believe that I can help my noble friend further.
§ Lord Richard
I do not want to prolong the debate, but is the noble Lord the Leader of the House really telling us that the drafting of subparagraph (9), in which "section 10 of this Act" does not refer to this Act but to something that has been referred to at the beginning of the schedule, is felicitous and that it necessarily has to be done in that complicated way? I find it hard to believe that he is saying that. Will be look at that again?
§ Lord Waddington
I can assure the noble Lord that I am correct. If he turns to the beginning of Schedule 1 on page 55 of the Bill he will see that it is entitled:Schedule 1Amendments of 1973 ActPart I".
What follows is part of the 1973 Act and therefore references thereafter to "this Act" must be references to the 1973 Act.
§ Lord Elton
There is nothing unusual about that. It is perfectly normal to have a schedule to one Act amending the text of another Act. Once one sees the heading of the schedule it is perfectly clear what is intended.
I should like to ask my noble friend to consider with his officials the advisability of having a different definition of dependency in statute and in clinical language. I can see considerable difficulties developing in court down the years if expert witnesses are expected to translate their accustomed language into the language of the law. It may result in confusion. I do not wish to delay the Committee further.
§ Lord Waddington
I shall pass on what my noble friend has said in that regard, but there is a clear definition of dependency in the Act and I quoted from that definition.
§ Lord Mancroft
I have had a long and complicated answer from my noble friend the Leader of the House and I shall have to read it carefully. I am concerned about the problem of terminology. I appreciate that this is a legal Bill, that definitions must appear before a court and that the health service's definitions are not for the courts. Nevertheless, they must both be 1436 accurate definitions of the same thing. It is a pity that they are unnecessarily complicated. They are the exact opposite of each other.
It is also a pity that the definition in paragraph 6(10) is completely opposed to the view of the Department of Health. They are two departments in the same Government. It is a bit of a muddle. This is a field in which various government departments get together. I am told that there are various Cabinet sub-committees which ponder those problems. It is slightly worrying if they cannot decide on a definition. It is therefore hardly surprising that there is such a muddle lower down in the field where the work has to be done.
The answers to the other amendments are quite complicated and I shall read carefully what my noble friend said. I am still not wholly convinced that paragraph 6(8) is necessary but I shall take his word for it for the moment. On that note, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendments Nos. 47B to 47F not moved.] Schedule I agreed to.
§ Clause 9 [Community service orders]:
§ Lord Richard moved Amendment No. 48:
§ Page 8, line 11, leave out subsection (2).
§ The noble Lord said: As I understand it, the purpose of Clause 9(2) is to increase the maximum number of hours of community service for 16 year-olds to 240. Currently the maximum is 120. I believe that the breach or failure rates would markedly increase as a result of that extension. Many 16 year-olds would therefore be tripwired into custody because of further offences or of failure to comply with conditions.
§ If one looks at the 16 year-old offender group it is typically fairly immature, it leads a somewhat disorganised, undisciplined lifestyle and it has frequently experienced learning difficulties. Many young people would therefore find themselves in a position of failing as a result of the imposition of extra conditions and hours. For all ages, the more hours that are specified, the higher the breach rate. For example, those sentenced to between 40 and 100 hours have a 77 per cent. success rate; those sentenced to between 100 and 150 hours have a 70 per cent. completion rate; those sentenced to between 150 and 200 hours have a 66 per cent. completion rate; and those sentenced to between 200 and 240 hours have a 61 per cent. success rate. Therefore, the failure rate for 16 year-olds sentenced to more than 120 hours seems set to soar, perhaps with a majority who are sentenced to it breaching.
§ The evidence suggests that the longer the order, the higher the breach rate. It also suggests that the younger, the less mature and more disorganised the offender, the higher the failure rate. If you put those two together, the proposed combination of those two factors for 16 year-olds seems certain sharply to increase the number failing to comply and therefore a significant number will receive custody through sentences.1437
§ Prison statistics show that 80 per cent. of 16 year-olds sentenced to custody are reconvicted within two years. Therefore, the imposition of extra community service seems set to increase the use of custody for 16 year-olds and confirm rather than deter criminal careers. I have seen no practical justification for increasing the maximum from 120 to 240 hours. I beg to move.
§ Baroness Faithfull
I rise to support the noble Lord, Lord Richard. With 16 year-olds the law of diminishing returns sets in. If one is to impose very long sentences, the young people concerned receive less and less positive help. From my experience, the longer a child is in custody, the more difficult it is to rehabilitate that child into the community afterwards. I support the noble Lord on those two points. My noble friend Lord Elton knows all about the very good system of the intermediate treatment within the community. It is far better to keep young people in custody for a shorter time and see that they receive rehabilitation afterwards. Therefore, I support the amendment.
§ 9.30 p.m.
§ Lord Gisborough
I also support the amendment. Those charged with the duty of carrying out community service orders for 16 year-olds believe that such orders have a much better chance of being completed successfully when the young offenders have a grasp of the parameters of the orders. The maximum number of hours should apply also to 17 year-olds dealt with in the new youth courts, so creating some differential between orders for adults and juveniles and young people.
§ Lord Waddington
The proposal in Clause 6(2) must be looked at against the background of the proposition in the White Paper that 16 and 17 year-olds should be dealt with as near-adults. That is the origin of the proposal. All it does is say that the same powers would be available to the courts in this regard for 16 year-olds as for 17 year-olds. That is directly in line with the general proposition in the White Paper that both 16 and 17 year-olds should come within the purview of the new youth court.
The amendment would retain the maximum number of hours of unpaid work which can be imposed on a 16 year-old offender at the existing limit of 120 hours. We believe that increasing the maximum number of hours to 240 in line with the maximum for other offenders will be helpful to the courts in dealing with offenders at this age. Of course, the courts do not have to impose more hours of community service unless they think it is right to do so. It is an integral part of our general approach in dealing with 16 and 17 year-olds that teenagers of this age are at an intermediate stage between childhood and adulthood. The arrangements for dealing with such offenders should reflect that by providing the courts with a wide range of disposals so that the sentence can properly reflect the maturity of the individual offender. It seems to me that to accept the amendment would be to 1438 deprive the court of some additional flexibility so as to make the penalty fit the crime and the particular young offender.
§ Lord Richard
If I may say so, I find the response unconvincing. I have seen no evidence anywhere that courts presently dealing with 16 year-olds are saying to themselves, "Good heavens! Wouldn't it be nice if we had power to impose 240 hours as opposed to being stuck with 120?" It seems to me that the present system is working reasonably well, and that there are dangers in interfering with it. At this hour I will not attempt to divide the House on the issue. I ask for leave to withdraw the amendment. We may come back to it at a later stage.
§ Amendment, by leave, withdrawn.
§ Clause 9 agreed to.
§ Clause 10 [Orders combining probation and community service]:
§ Lord Richard moved Amendment No. 49:
Page 8, line 48, at end insert:
("(2A) A court shall not make a combination order unless it would have imposed a custodial sentence if it had not made such an order.").
§ The noble Lord said: This is another amendment raising a fairly short point. I hope I may be more successful in this than on the last short point I raised with the noble Lord.
§ The amendment would require courts to use the new combined probation and community service order only when they would otherwise have imposed a custodial sentence. As I understand it, the aim of the new combination order is to provide the courts with a new intensive and demanding penalty which would be a credible alternative to custody for many offenders who are currently in prison. However, there is no guidance to that effect in the Bill. In the absence of any such guidance there is every possibility that the courts would use the new order for many offenders who had currently received probation orders, community service orders or other existing community penalties. For example, the community service order introduced by the Criminal Justice Act 1972 was intended primarily as an alternative to custody. A few years after its introduction Home Office research found that only 45 per cent. to 50 per cent. of such orders were passed on offenders who otherwise would have gone to prison.
§ If that were to happen in this case it would seriously reduce the impact of the new order on the unnecessary use of custodial sentences. A further danger lies in the fact that the greater the number of requirements imposed on offenders the higher the chance that the offender will break one of the conditions, be returned to court for breach and be imprisoned. If the combination order were widely used instead of the existing non-custodial penalties it could lead to the imprisonment for breach of many offenders who otherwise would not have been at risk of custody. The Bill should therefore be amended to stipulate that the courts must use the combination order only when they would otherwise have passed a custodial sentence.
§ A combination order will be the most intensive community penalty available to the courts. By 1439 reserving it for more serious cases which would currently receive a custodial sentence the amendment would reinforce the idea that the more intensive penalties should be used for the more serious offences which deserve them. I beg to move.
§ Lord Harris of Greenwich
I propose to speak very briefly on this amendment. I agree with the noble Lord, Lord Richard. When community service was first introduced—I think by the noble Lord, Lord Carr —on an experimental basis and the resources were provided by the successor Labour Government to extend the system to the rest of the country, it was made clear that community service was seen as a direct alternative to imprisonment. I am not sure that that approach necessarily succeeded over a period of time but it is probable that somewhere in the region of half of those who at that time were sentenced to community service would otherwise have gone to prison. The amendment of the noble Lord, Lord Richard, to which I added my name, would require the courts to use the new combined sentence only when otherwise there would have been a custodial sentence. That seems to me to be right.
It is also right for another reason. If one is to have the new sentence—the combined order—the resource implications for the probation service are very considerable. They will be infinitely greater than they are, for instance, in the single probation order or the single community service order. As Ministers constantly and rightly explain, the resources of the probation service are limited. That being so, it seems to me that this amendment is exactly the right approach; namely, that it should be seen as a direct alternative to imprisonment.
I read the report of what the Minister of State said in the House of Commons. He seemed to be most unpersuasive as to why the Government were not attracted by this approach. Even in terms of the resource implications for the probation service I believe that this is the right way to deal with the issue. I hope, without an immense degree of optimism, that the Government will agree with us.
§ Lord Henderson of Brompton
Perhaps I may add a brief word. So far today I have not spoken and perhaps I shall be allowed a little credit in that respect. I agree about the resource implications mentioned by the noble Lord, Lord Harris of Greenwich. To my mind the most important reason for agreeing to this amendment is that should it not be accepted the most valuable new combined probation and community service inevitably would be devalued. That would be a great pity indeed. It would only be devalued by being used for the wrong purpose; that is, as an alternative to other non-custodial sentences. I believe that it would lead to the imprisonment of those in breach of many of the orders who would ordinarily not have been confined to custody. However, if they are subject to one of those orders and are in breach they would then be at risk unnecessarily of imprisonment. One is thereby increasing the risk of imprisonment by not making the distinction which the amendment seeks to make. I strongly support the amendment.
§ Lord Waddington
I understand the intention behind the amendment. However, the wording of the amendment is unfortunate. Perhaps I may remind the House that the provisions in the Criminal Justice Bill relating to community sentences are, deliberately framed so as to move away from what is thought of by many as the outmoded concept of "alternatives to custody". The trouble with that approach is that it encourages sentencers to think that the only real penalty is custody, and that a sentence other than a custodial one is therefore unlikely to be appropriate for relatively serious cases. This is quite out of line with the sentencing principles of the Bill which establish quite clearly that custody should be used only when no other penalty will do.
I believe that we are all agreed that there should be as wide a range as possible of community penalties available to the courts so that the courts are encouraged to use community penalties. In introducing a new type of order—in this case the combination order—it is surely right to ensure that it is used like other community sentences as a penalty in its own right for offenders for whom it is suitable. The combination order will, I believe, be particularly suitable for those offenders who have committed quite serious crimes on the border between a community penalty and custody. But it is only clouding the issue to require the courts in this particular case to ask themselves the very question that we do not ask courts to ask themselves in any other case: whether they would have given a custodial sentence if the combination order had not been available.
I understand the concern that combination orders should not be used indiscriminately, and in particular should not be used in circumstances where an ordinary probation or community service order would be more appropriate. I do not, however. believe that this will happen. The yardstick for any community sentence, including a combination order, is set out quite clearly in Clause 5(2) of the Bill. Under Clause 5(2) (b), the restrictions on liberty in an order are to be commensurate with the seriousness of the offence. Under Clause 5(2) (a) the community sentence must be the most suitable for the offender. These are tight and rigorous tests which will ensure that the combination order, and indeed other community sentences, are used appropriately.
I hope that what I have said has served to explain more fully the way in which the Bill provisions will work and that the noble Lord, Lord Richard, will understand why I do not think it would be right to restrict the use of a combination order in the way that he proposes.
§ Lord Richard
I hear what the Leader of the House says. I take the point that the philosophy of the Bill and the terms of the amendment do not fit as well together as they should. I beg leave to withdraw the amendment at this stage. However, I should like to consider the drafting to see whether it may be possible to produce an amendment which sits rather better with the philosophy of the Bill.
§ Amendment, by leave, withdrawn.
§ Clause 10 agreed to.1441
§ 9.45 p.m.
Lord Gisborough moved Amendment No. 50:
After Clause 10, insert the following new clause:
("Commencement of s. 49 of Criminal Justice Act 1972.
§ The noble Lord said: Section 49 of the 1972 Act provides that in any case where a magistrates' court has powers to issue a warrant of commitment for default of payment of a fine the court may make a community service order instead of a commitment to prison. We are agreed that it is preferable to put a man on community punishment rather than to send him to prison. However, the section has never been brought into force. I understand the reason is that the probation service is not adequately funded nor staffed to deal with the numbers involved. Thus defaulters are sent to prison. The cost of keeping them there must far exceed the cost of putting them on community service even if it comes from a different budget. In addition there are the well-rehearsed disadvantages of introducing a man to prison. If community service is constructive it will achieve a value in the work carried out which will balance the unpaid fine. It would be wholly desirable as well as being a great economy to fund the probation service to the extent that it would be prepared to take on the duty relating to this section. Therefore it should come into force with the Bill. I beg to move.
§ Lord Waddington
We all agree that we wish to see fewer fine defaulters in prison. Members of the Committee will be aware that the Bill contains important provisions which should have a beneficial impact on the problem. The introduction of unit fines and the attachment of income support will lead to less imprisonment for default as a result of fairer assessment and easier enforcement. They should ensure that only those who have deliberately not paid their fines will end up in prison as a result.
§ There is no doubt that a large number of people wait a long time before meeting their obligations. At the eleventh hour and under the threat of imprisonment they decide to pay up. The question is whether the proposal in the amendment would be a wise use of resources and have the beneficial effect which my noble friend suggests.
§ Having considered whether to bring Section 49 of the 1972 Act into force and to make community service available for fine defaulters, we have decided not to go down that road. We do not believe that community service would be as effective as imprisonment in encouraging defaulters to pay their fines. About 120,000 warrants are issued each year committing fine defaulters to prison and more than 80 per cent. pay up. The use of community service would divert the probation service from its important task of supervising more serious offenders.
§ My noble friend has freely acknowledged that the use of community service would cost the probation service a great deal in resources. In our judgment it would cost the probation service more than it would save the prison service. Those who fail to comply with the community service order would still end up in 1442 prison for default. A nice judgment must be made. For those reasons we have reached the conclusion that at the present time it is not wise to go down the road recommended by my noble friend. I hope that he will look at the issue in the context of the other proposals in the Bill which should have a desirable impact on the number of people who end up in prison for fine default.
§ Lord Gisborough
I thank my noble friend for that reply. I am not convinced but I beg leave to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§ Clause 11 [Curfew orders]:
§ [Amendment No. 50A had been withdrawn from the Marshalled List.]
§ [Amendment No. 51 not moved.]
§ Clause 11 agreed to.
§ Clause 12 [Electronic monitoring of curfew orders]: [Amendment No. 51A had been withdrawn from the Marshalled List.]
§ Clause 12 agreed to.
§ Clause 13 agreed to.
§ Schedule 2 [Enforcement etc. of community orders]:
§ On Question, Whether Schedule 2 shall be agreed to?
§ Lord Ackner
I have given notice of my intention to address the Committee on this issue. I hope that I have adopted the right procedure. I have done so because, as I understand it, major changes are being made in the way an offender is to be dealt with for breach of a requirement of a probation order. I may be wrong but that is my understanding of Schedule 2.
An offender who is in breach of an order may be fined, or the order may be revoked and the offender resentenced for the offence. However, it will normally be possible to impose a custodial sentence on an offender who is in breach of a requirement of the order only if his breach is "wilful and persistent". Those are the words at paragraphs 3(2) (b) and 4(2) (b) of Schedule 2. The court will not generally be able to impose a custodial sentence under paragraph 4(1) (c) as the original offence was not sufficiently serious to satisfy Clause 1(2). The offender's failure to respond to the probation order must, as I understand it, be ignored by reason of the strange provisions of Clause 3(2). That may make the probation order a distinctly less attractive option in the more serious and potentially risky cases.
Further, the commission of a further offence during the period of a probation order will not in itself be a ground for resentencing the offender for the offence for which the probation order was imposed, as it has been in the past. Resentencing following a further conviction in a magistrates' court will be possible under paragraph 7 if the offender or supervising officer applies to the supervising court for revocation and under paragraph 8 if the offender is convicted in the Crown Court. In neither of those cases will it normally be possible to impose a custodial sentence for the original offence, as the criteria for custodial sentences in Clause 1 will normally prevent that, except of 1443 course in cases where they do not apply; that is, in indictable only offences committed by an offender who has served a previous sentence of imprisonment.
All that adds up to the proposition that the general effect of these changes, contrary to what I understand to be government policy, seems to be to weaken the probation order by restricting the sanctions available on a breach or conviction for a further offence. Therefore, this is one of these very rare, if not totally unique, situations where I expect, if he is going to be consistent with his peroration today, the noble Lord, Lord Hutchinson, will leap to my support. In that happy and confident vein, I commend what I say to the Committee.
Perhaps I may explain to the noble and learned Lord what the position is. If we are to have community sentences then we must have means of enforcing them, otherwise the system will fall into disrepute. There must be provisions to cover such eventualities as an offender not turning up for a community service work appointment, committing a further offence or moving to another part of the country.
Schedule 2 contains a set of enforcement provisions that are largely based on existing procedures. However, we have tried to make them clearer and more consistent. We have tried to apply the same approach as nearly as possible to a number of community orders—the probation order, the community service order, the combination order and the curfew order. In doing so we aimed at consistency with the sentencing framework in Clauses 1 to 6 of the Bill.
Enforcement of community sentences needs to be rigorous so that offenders cannot ignore the requirements of their orders with impunity. At the same time they should not be over zealous so that a minor breach will send the offender back into custody. It is difficult to obtain the correct balance and I hope that the schedule achieves that.
In general, when dealing with breach of the requirements of a community sentence the courts will be able to impose a penalty of either a fine equivalent to level 3 maximum £.1,000—or up to 40 community service hours. The original order will remain in force. If a court revokes an order following a breach of requirements so as to deal with the offender in another way then it must take into account how far he or she has already complied with its requirements. The Bill brings the powers for dealing with re-offending during the currency of a probation order more into line with the arrangements for community service orders, reflecting the new status of the probation order as a sentence of the court.
Part III of Schedule 2, which deals with the revocation of an order, preserves the existing power of the courts to revoke a probation order in circumstances where the probationer has made good progress. The last part of Schedule 2 deals with the amendment of a community order for other reasons; for example, where an offender moves from one area to another or where a community service order needs to be extended beyond the original 12 month period to enable an offender to complete it.
1444 I hope the provisions in Schedule 2 will be easier for all concerned to understand and apply than are the current provisions of the law. They seek to achieve a greater degree of consistency and a balanced approach between encouraging the offender to complete the order successfully and punishing him or her appropriately for any failures on the way to completion.
§ Lord Ackner
Before the noble Earl sits down perhaps he will confirm that I was right in my inference that the effect of the changes is to weaken the probation order by restricting the sanctions available for a breach or conviction of a further offence.
I shall need to consider that proposition more carefully. I do not believe that the Bill weakens the probation order; it treats it as a punishment in its own right. However, I shall consider what the noble and learned Lord said and if I am incorrect I will write to him.
§ Schedule 2 agreed to.
§ Clauses 14 and 15 agreed to.
§ Schedule 3 agreed to.
§ 10 p.m.
§ Clause 16 [Fixing of certain fines by reference to units]:
§ Lord Waddington moved Amendment No. 52:
§ Page 12, line 31, leave out ("at the time of the conviction").
§ The noble Lord said: The purpose of Amendments Nos. 52 and 53 is to deal with two points affecting the operation of the unit fine scheme under Clause 16. The Bill provides for a unit fine to be determined with reference to two things; that is, the seriousness of the offence and the disposable weekly income of the offender. The court will ascribe a number of units corresponding to the first of these and a value to each unit corresponding to the second.
§ The first point arises in Clause 16(2) (a). This requires the court to determine the number of units at the time of the conviction. However, the court does not always pass sentence immediately after it convicts an offender. For example, a court may convict an offender of two or more offences on two or more separate occasions and may then proceed to pass sentence for them all at one sitting. It is clearly desirable that the provisions of the Bill should accurately reflect court procedures. Accordingly, Amendment No. 52 removes the reference to the time of the conviction in Clause 16(2) (a). Amendment No. 53 is a drafting change consequential on Amendment No. 52.
§ The second point is that the Bill, in Clause 16(7) (b), allows the value of each unit to be determined by court officials in accordance with rules made by my noble and learned friend the Lord Chancellor. This would work as follows. The offender would provide a statement of his means. The court officials would work out his disposable weekly income and then ascribe a value to each unit. Then the amount of the fine could be calculated. This could happen when the offender was sentenced or at some later point. In the latter case 1445 the court officials would under Clause 16(2) write to him and let him know the amount of the fine he had to pay.
§ We thought very carefully about that and we have come to the view that such a practice is incompatible with the principle that court proceedings are generally supposed to be public and open, with the sentence stated in open court. This means that the value of each unit in a unit fine, on which the amount of the fine partly depends, will also have to be announced in open court. Another problem is that it is not clear where an appeal lies if the offender thinks that the court officials have wrongly calculated his disposable weekly income.
§ On that basis we have concluded that the task of determining the value of a unit must be left to the magistrate. We cannot shovel it off on officials. The magistrate may take advice from court officials, but he will be responsible for determining its value and announcing the amount of the fine in open court. Amendment No. 60 therefore removes Clause 16(7) from the Bill. Amendments Nos. 54 and 55 are consequential: if the fine is to be announced in open court and not determined by court officials in private, there is no need to notify the offender by post. So Amendment No. 55 deletes the tailpiece to Clause 16(2). Amendment No. 54 preserves my noble and learned friend's power to make rules governing the way in which the value of a unit is to be determined. These are amendments which make a real improvement to the Bill. I commend them to the Committee.
§ On Question, amendment agreed to.
§ Lord Waddington moved Amendment No. 53:
§ Page 12, line 36, leave out ("that") and insert ("the same").
§ On Question, amendment agreed to.1446
§ Lord Waddington moved Amendment No. 54:
§ Page 12, line 37, after ("court") insert ("in accordance with rules made by the Lord Chancellor").
§ On Question, amendment agreed to.
§ Lord Waddington moved Amendment No.55:
§ Page 12, leave out lines 38 to 40.
§ On Question, amendment agreed to.
§ Lord Waddington moved Amendment No. 56:
Page 12, line 40, at end insert:
("(2A) In making any such determination as is mentioned in subsection (2) (a) above, a court shall take into account all such information about the circumstances of the offence (including any aggravating or mitigating factors) as is available to it.").
§ The noble Lord said: The purpose of this amendment is simply to ensure that a court takes into account the circumstances of the offence (including any aggravating or mitigating factors) in fixing the amount of a unit fine under Clause 16(2). This is to be consistent with the related provisions in Clauses 3 and 6. When a court is thinking of imposing a custodial or community sentence under Clauses 3 or 6, it must consider information about the offence, including aggravating or mitigating factors. This is to enable it to decide whether the offence is serious enough to justify one of these sentences. Clause 16, as drafted at present, contains no similar reference to these factors. We think that there should be consistency between this provision and the related provisions in Clauses 3 and 6. So Amendment No. 56 makes it clear that when a court is considering how many units would properly reflect the seriousness of the offence it should take into account any available information about the circumstances of the offence just as it should when imposing any other kind of sentence. I beg to move.
§ On Question, amendment agreed to.1447
§ Lord Henderson of Brompton moved Amendment No. 57:
§ Page 13, line 9, after ("above)") insert ("unless the court is satisfied that this would be unreasonable having regard to the circumstances of the offender").
§ The noble Lord said: This amendment, which I am happy to say has all-party support, seeks to make one small but important amendment to the means related unit fine system which is introduced in this Bill, and which I think I can say for all of those who support this amendment is immensely welcome. We have been working for this for some time. Indeed I well remember that I moved an amendment, which was not so expertly drafted as the provisions in this Bill, to the Criminal Justice Act 1988, when I regret to say that it was received with a rather cold answer from the Government. I am sure they were right to do so, because since then there has been this valuable experiment in four areas which has amply justified the introduction of the unit fine system.
§ The only area that we would quarrel with is the provision which allows courts operating the unit fine system to calculate an offender's weekly disposable income at less than £4 where to calculate it at £4 a week would be unreasonable. We do not like this limit of £4 in the case of very poor offenders. Under the unit fine system, as the Committee will know, the size of a fine is determined by multiplying the number of units representing the seriousness of the offence by the weekly disposable income of the offender.
§ When this experiment took place, three out of the four courts set a minimum amount of £3 a week, and Bradford, one of the experimental centres, had a minimum of £5 a week. But the reality turned out to be—and this is in the evidence of the Home Office evaluation of the experiments—that at Bradford, where the minimum weekly amount was £5, in practice more than one-third of the fines were set at £3 or less, and 11 per cent. were set at £1 or £2 a week.
§ At Swansea 41 per cent. of the fines were set at £3 or less, and 13 per cent. at £1 or £2 a week. At Teesside, the area of highest unemployment, nearly half of the fines were set at £3 a week or less, with as much as 39 per cent. being set at £1 or £2 a week. We should not ignore the valuable evidence that came from these experimental areas. Even in the relatively well-off area of Basingstoke, although they had few fines below £3 a week, the magistrates there occasionally fined the odd offender as little as £1 or £2 a week. We ought to have regard to the experience that has been gathered from this valuable experiment in four diverse areas of the country where the magistrates found it necessary to lower the bottom limit to as little as £1 or £2 a week.
§ I should have thought that it would be in accordance with the respect that we would show for magistrates' courts that we should allow them, where they have evidence of perhaps default of a fine because of the personal circumstances or very low income of the offender, to allow payment at a lower rate. If they are not allowed that discretion, then the offender might unfortunately end up in prison in default of payment.1448
§ Not only should we defer to the experience of the magistrates and trust them in this matter, but we should also have regard to the fairness of the scheme. Such fairness lies in ensuring that fines have a more equal impact on the poor and on those who are well off. For example, if an offender who can afford to pay £20 a week receives a fine of £20 a week but a poor person who can only afford £2 a week is fined as if he could afford £4 a week, it is quite clear that the degree of fairness—which is an admirable feature of the unit fine system—is reduced. Moreover, the likelihood of default at the lower end of the scale is increased.
I turn now to the remarks made by Mr. John Patten in another place; namely, that if the monetary value was set lower than £4 a week there would be:
the risk of setting up a system such that the monetary value of the fine would become derisory".—[Official Report, Commons, 20/2/91; col. 404.]
§ I believe that is overstating the case. I do not believe that it would be derisory. I believe that it would be possible to collect a sum of perhaps £1, £2 or £3 a week and that it would be paid: whereas, if a very poor person is forced to pay as much as £5 a week, there will be a default and the whole purpose of the system will be defeated by the defaulting offender being sent to prison.
§ The case is a most powerful one. In order to make the system which we all agree is extremely valuable more effective as well as fairer, I strongly commend the amendment to the Committee. I beg to move.
§ Lord Hutchinson of Lullington
I support this amendment. It is very late at night but this is a most important issue. The means-related unit fines system has substantially reduced the number of people being committed to prison for fine default. In my view, there can hardly be a more important motive than to somehow reduce the ludicrous number of people who are at present sent to prison for very short periods of time for fine default.
The noble Lord, Lord Henderson, mentioned the various places where the experiment has been introduced. In Basingstoke, the cowl has almost completely abolished imprisonment for default. Indeed, it has proved what many of us have been arguing for years in this Chamber; namely, that with proper arrangements prison can be abolished altogether for fine defaulters.
I was sorry to hear the noble Lord the Leader of the House say earlier how many people repay their fines only because of the threat of imprisonment. That is simply not necessary. There are other ways of obtaining the money rather than the old-fashioned method of the blunderbuss of threatening imprisonment. Basingstoke has proved its point. What is proposed is most essential. I say that because there are many offenders who simply cannot afford to pay £4 a week.
I do not believe that the Government appreciate the depth of poverty which many people face in this country at present. Surely the Government are able to recognise the fact that magistrates' courts are well able to decide the appropriate sum which should be fixed at the bottom of the scale. These experiments have shown that the various courts have not been given a 1449 sum which is frozen; they set a sum and have the flexibility to vary it in special circumstances. Surely that is the proper way to deal with the matter.
The amendment is strongly supported by the National Association of Citizens Advice Bureaux. It has supplied us with a number of examples and I shall not quote them all at this late hour, but it is important to give at least two of them. A CAB in Lancashire reports the case of a single parent on income support who was fined £50 for non-payment of a TV licence. She could only afford to pay £1 a week and she fell behind with the payments. Bailiff action was started to recover the fine, incurring costs amounting to a further £30.
A CAB in Devon reports a case where a man with a family, including a child under five, used his income support to pay his fines having been threatened with imprisonment for non-payment. He was subsequently refused a social fund crisis loan and the family were left without any money for 11 days. In another case, a CAB in Derbyshire reports that it has a client who works for 20 hours a week in a residential cafe home. His pay is £20 a week. He visited the bureau because the DSS had stopped his income support. Its reason was that it did not believe that anyone could be paid so little and the DSS assessed his earnings at £40. Those three examples out of a great number indicate the depth of poverty which people face in this country. Surely flexibility is essential.
§ 10.15 p.m.
§ Baroness Faithfull
As one who has had to collect debts from people I strongly support the amendment. If people are asked to pay an amount which they cannot manage then they pay nothing at all and there is a difficulty. If they try to pay from their income, particularly if the family is on income support, there is disruption in the family because the mother does not have enough money to look after her husband and children.
It is right that people should be fined if they run into debt in this way, but if they are ordered to pay £4 per week but cannot do so they are worse off than before because they will go to prison. I cannot understand why, if they must pay the full amount, it cannot be spread over a longer period so that they pay a much smaller sum which is within their budget. Such people will then face their problems. However, if they are forced to repay amounts which they cannot afford they will pay nothing at all. This is my personal experience of dealing with debtors.
§ Lord Morris of Castle Morris
Was it not that great dramatist and contemporary of William Shakespeare, Ben Jonson, who, speaking of the importance of the Greek and Roman writers to the writers of his own generation, said that the ancients should be guides not commanders? So here it seems eminently sensible, fair and cost-effective to relax this commanding rule of "never less than £4 a week" and use that phrase as a guide, mollified by the words of the amendment.
As we have heard, the pilot schemes have been eminently successful and not to accede to the 1450 amendment would reduce the fairness of the whole system. Its fairness lies in ensuring that fines have an equal impact on the poor and the well-off. It would also reduce the effectiveness of the system because offenders, required to pay twice as much as their real disposable income warrants, are more likely to default. Sense, prudence, fairness and Ben Jonson commend this amendment to the Committee. So do I.
§ Lord Waddington
As usual my noble friend Lady Faithfull got to the nub of the matter as she addressed most of her remarks not to the level of the fine but to the rate of payment. That, of course, is a solution to the problem. I believe that the case is being grossly overstated by those supporting the amendment when they talk as if a minimum fine of £4 is a fine that no one in the depths of poverty could ever pay. It is, of course, always up to the magistrates to decide at what rate a fine should be paid. Clearly magistrates can take into account the desperate straits of a person in deciding the rate of payment. That is really the important issue.
We must remember that we are introducing a new scheme. For such a scheme to be viable and to have credibility with sentencers, offenders, victims and with the public at large, a minimum value of the kind proposed in the Bill is surely an essential element. We have adopted a starting point of £4. We have tried to achieve a balance between the need to take proper account of an offender's means and the need to ensure that the seriousness of the offence is properly reflected in the fine.
It is difficult these days to think of a single offence the seriousness of which could be reflected in a derisory fine as low as £4, £6 or £8. In making this judgment we have taken full account of the experience of the courts participating in the pilot projects initiated to test the unit fine scheme. As I believe the noble Lord, Lord Henderson, acknowledged, each of those projects adopted a minimum value for a unit. Admittedly they did not all adopt the same minimum value but, as far as I recall, they all adopted a minimum value.
I went down to Basingstoke to see how the scheme was working. It is working incredibly well. No one here is suggesting that we are not right to go ahead with the unit fine scheme. However, we must make it work and we must ensure that it has credibility. I do not think it helps to build up the credibility of the scheme to say that a magistrates' court might impose a minimum value on a unit of 50p or £1. It is for us to ensure that a value lower than £4 is not set as that would lead to the imposition of a derisory fine.
As I have said, it is important to recognise that the unit fine system is about fixing a penalty for an offence. It is not about making arrangements for the payment of fines. If a unit fine based on a minimum value of £4 is too much for the offender to pay on a weekly basis, the court has the discretion to allow the offender to pay in weekly instalments of less than £4. That provides a safeguard to ensure that offenders do not end up in prison simply because they do not have the money to pay the fine at a rate of £4 a week.
In answer to the noble Lord, Lord Hutchinson, when I referred to 80 per cent. of people paying up 1451 under the threat of imprisonment, I was talking about the set-up under the present law. I repeat that there are other provisions in this Bill which should make it much less likely that people will end up in prison for fine default as a result, for example, of an attachment of earnings order. I believe that a minimum value of £4 for a unit is within the means of most offenders. I cannot recommend to the Committee an amendment which would allow a unit value of less than £4.
§ Lord Henderson of Brompton
Before the noble Lord sits down, will Be address his mind to the question of fairness to which I referred?
§ Lord Waddington
The scheme would be absolutely pure and immaculate if whatever disposable income was calculated was the income which was taken into account, even if that resulted in a unit of 2.5p. However, I do not think the noble Lord is seriously arguing that one should destroy the credibility of a scheme of this nature by taking the assessment to absurd lengths. If we are to achieve a fine which has any meaning at all, we should establish a minimum level.
The question is what the minimum level should be. The noble Lord has acknowledged that in each of the pilot schemes the courts felt it right to have a minimum level. So what we should be arguing about now is not the perfect purity which the noble Lord, Lord Henderson, now seems to be urging on the Committee but what the minimum level should be. I could understand it if he now argued that the minimum level should be £2 rather than £4 but I find it very difficult to accept his apparent argument that whatever figure emerged there should be no minimum level whatsoever.
§ Lord Gisborough
In my experience many people come to the court—sometimes the worst offenders—who are out of work. They have an income of about £40 a week and commitments of about £30, and at most £10 for their food and for their children. Therefore the amount that they can pay is often only £1 or £2 and that is all that one can get out of them. That ignores the problem of the following week and the week after when they come back charged with further offences. What does one do then? One adds another £1 and then another £1.
That does not take into account the many people who already abuse the system. They are not born yesterday. They have solicitors who, if they do not know already, soon tell them, I am afraid to say. (Perhaps I had better withdraw that remark, no matter what I think.) There are many who abuse the system and say that they have only £40 a week and commitments of £30. We had a case the other day and were just about to take pity on the man when he admitted that he was late because his car had broken down or because of the traffic. He then pretended that it was not his car but his son's car and that he had put £20 worth of petrol into it. That remark cost him a lot. There is no doubt that the system is already being abused.
§ Lord Henderson of Brompton
I cannot help but say that the noble Lord the Leader of the House has given 1452 a very unhelpful reply. It was most heavy handed when one considers the light way in which we moved this very important amendment. We attach a great deal of importance to it, but all the noble Lord the Leader of the House has done is to use words like "derisory" and "absurd" and to take the argument to absurd limits himself. None of us has mentioned anything like a 50p fine, so what did the noble Lord mean by introducing the question of a 50p fine when none of us was thinking in those terms`' That is not the way to answer an amendment which has been put forward seriously from all quarters o f the Chamber. We do not feel that we have been treated with the seriousness which this amendment deserves. Ordinarily speaking in this Chamber a Minister would at least consider what was said instead of delivering a rather blustering reply to what has been moved mildly by people who agree that the unit fine system is admirable but detect a flaw in it.
The noble Baroness, Lady Faithfull, was most impressive because she spoke from personal experience of collecting fines. I should have thought that the noble Lord the Leader of the House would have had the grace to respect that very important personal experience of a very distinguished Back-Bencher, but apparently not.
It is too late to divide the House at this hour, but I should have thought that the expression of opinion from all round the Chamber has been such that we should return to the matter at a later date, when we hope to have a more satisfactory and more gracious reply than we have received today.
§ Lord Waddington
Before the noble Lord sits down perhaps he will allow me to say that I certainly meant no discourtesy. However, sometimes it is helpful to refine the issues. Sometimes it is also necessary to give a robust reply in order to illustrate what I believe to be the fallacies in the arguments advanced by the noble Lord, just as he addressed what he believes are arguments which show the fallacies in the Government's case. I certainly meant no discourtesy. I certainly meant no discourtesy to my noble friend. I spent some little time replying to the principal point that he made which related to the rate of payment of a fine.
§ 10.30 p.m.
§ Lord Henderson of Brompton
I accept that and I do not wish to persist with it in view of what the noble Lord said.
I should like to make one final point. In all honesty, I do not believe that the Government have fully taken into account the implications of the experiment. It is right that they had a minimum in all four cases, but they did not stick to the minimum. That is the important point. One must trust the magistrates in this matter. All four experimental magistrates' courts found it necessary to impose less than a £5 limit and as little as £1 or £2 in certain cases.
I hope that the noble Lord will consider that evidence from the experiment because the experience of the magistrates on the spot and of the noble Baroness, Lady Faithfull, in dealing with fine 1453 offenders should surely be taken into consideration. If all those four experimental schemes found it necessary to fine as little as £1 or £2 a week, surely that is important evidence which the noble Lord should take into account. I hope that he will agree to reconsider the amendment in the light of that important evidence from those four schemes. I should not have thought that to reduce the minimum would reduce the credibility. If we insisted on a rigid minimum, we would send many people to prison who would not otherwise go. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Lord Waddington moved Amendment No. 58:
Page 13, leave out lines 21 to 26 and insert:
("(a) in the case of an offence in relation to which a compensation order is made, the reduction of the amount of the fine in pursuance of section 35(4A) of the 1973 Act;").
§ The noble Lord said: This amendment deletes Clause 16(6) (a) and (b) which enable a court to reduce the amount of a unit fine in two specific cases. That is because the new clause to be inserted after Clause 23 makes general provision for mitigation of sentence throughout Part I of the Bill, thus rendering these subsections unnecessary. A new provision is then inserted into Clause 16(6) to make it clear that, when a unit fine and a compensation order are imposed together, the court may reduce the amount of the fine. That reflects Section 35(4A) of the Powers of Criminal Courts Act 1973 which provides for a compensation order to take precedence in those situations. Without the amendment, the court would not be able to reduce the fine. I am sure that the Committee will agree that compensation to the victim should continue to take precedence over a fine.
§ Amendment No. 59 deals with the particular case of evading payment of a television licence fee. Under the unit fine scheme, it would be quite possible for an offender on low income to be given a fine for not buying a licence which was less than the licence fee itself cost.
§ We do not want to encourage people to evade paying their licence fees, so Clause 16(6) (d), as revised by this amendment, would enable a court, first, to set the amount of a fine for the offence of watching television without a licence, then to increase it by a sum up to the value of an annual licence. If, for example, an offender is fined £40 for the offence, he will not benefit from not buying a licence since its value could be added to the fine. The existing Clause 16(6) (d) did not technically achieve that end. It was also drafted too widely, given that its only aim was television licence fee evasion. I commend the amendments to the Committee.
§ Lord Richard
I assume that the noble Lord was referring to Amendment No. 59 to which I also wish to speak.
I am interested in this dreadful offence of watching television without a licence. I have little to say about Amendment No. 58, but, with regard to Amendment No. 59 and with great respect, surely it is nonsense that the criminal law must be invoked in order to make people pay their television licences. I understand 1454 the purpose of Amendment No. 59. I appreciate that the language of the amendment achieves what the Government set out to achieve; namely, to ensure that, when the unit fine system is in operation, courts can fine an offender who has not paid a television licence fee an amount which means that he has not made an overall profit out of not buying a licence. What on earth are we doing, invoking the criminal law and fining people for not having television licences?
As I understand it, the Home Office was unable to provide the Home Affairs Select Committee of the House of Commons with any recent figures for the number of people imprisoned for fine default following conviction for not paying the television licence fee. It estimated that in 1983 400 men and 120 women were imprisoned for fine default in such circumstances. It is unlikely to be any lower today in view of the increased efforts to combat licence evasion and it could well be higher.
Of course, people should pay their television licences. But it is difficult to see the justification for using the full panoply of the criminal law, and even imprisonment, to enforce payment of the licence fee. We do not do it when people fail to pay their water rates, gas bills, electricity bills or, for that matter, debts owed to private companies or individuals. Water, gas and electricity companies cannot ask the courts to fine and imprison somebody who owes them money, nor can an independent television company ask a court to fine or imprison an advertiser for failing to pay a larger sum than the television licence fee. They can use the normal process of the civil law to obtain redress against the debtor. The BBC should do the same.
§ Lord Henderson of Brompton
I should like to say a brief word in support of the noble Lord, Lord Richard. I ask the noble Lord the Leader of the House why the Government rejected the recommendation of the report of the House of Commons entitled The Future of Broadcasting of June 1988 when they suggested that non-payment of the television fee should be treated as a civil rather than criminal matter. They asked Mr. Renton if decriminalisation of non-payment was part of his plan and he explained that that had not been considered. I suppose it has been considered since 1988, but I should very much like to know why non-payment has not been made a civil rather than a criminal matter.
An important point made in the report which so far has not been mentioned is that the present situation is clearly a waste of court time. Why should the public have to spend money on the courts adjudicating on this matter when they do not have to do so in the case of people who do not pay water rates, gas bills and electricity bills? The amendment would be a sensible reform and I hope that it will be considered favourably by the Government.
§ Lord Waddington
The noble Lord, Lord Henderson, is entirely right that the Home Affairs Select Committee in another place recommended some time ago that the licence fee should be recoverable as a civil debt and the criminal law should no longer be invoked. The argument deployed against 1455 that has always been that the BBC's revenue could drop very considerably. Criminal penalties result in a fairly high level of payment. Unlike the case of the utilities where the supplier has the sanction of cutting off supply, there is no equivalent in broadcasting. But that is nothing to do with the amendment now before the Committee. The Bill does not deal with substantive changes in the criminal law in that sense. It must be left to another day to discuss whether the law should be changed in the way recommended by the noble Lords, Lord Henderson and Lord Richard.
I was slightly surprised by the remarks of the noble Lord. Lord Richard, because I have always thought that the Labour Party was in favour of the present system of funding the BBC. If I am wrong and there has been a change of front in that regard I stand to be corrected. When I was last in the Home Office I certainly was not aware that the Labour Party supported the conclusions of the Select Committee.
§ On. Question, amendment agreed to.
§ Lord Waddington moved Amendment No. 59:
§ Page 13, line 30, leave out from ("offence") to end of line 33 and insert ("of installing or using any apparatus for wireless telegraphy except under a licence granted under section 1 of the Wireless Telegraphy Act 1949, the increase of the amount of the fine by an amount not exceeding the sum which would have been payable on the issue of such a licence").
§ On Question, amendment agreed to.
§ Lord Waddington moved Amendment No. 60:
§ Page 13, line 34, leave out subsection (7).
§ On Question, amendment agreed to.
§ Lord Waddington moved Amendment No. 60A:
Page 13, line 49, at end insert:
("(10) In section 41 of the Criminal Justice Act 1988 ("the 1988 Act"), subsection (7) (Crown Court sentencing powers in relation to summary offence dealt with together with either way offence) shall have effect as if this section had not been enacted.").
§ The noble Lord said: Amendment No. 60A deals with cases where a magistrates' court commits a person to the Crown Court for trial for a number of related offences, some of which are triable either way and some of which are summary only. If he pleads guilty to any of the summary offences, then Section 41(7) of the Criminal Justice Act 1988 requires the Crown Court to deal with him for that offence as if it were a magistrates' court.
§ A problem arises if the Crown Court wishes to impose a fine in such a case. As it is bound by the magistrates' courts' sentencing powers, it must apply the unit fine scheme. I do not want to pre-empt our discussion on Amendment No. 61 to Clause 17, but our view is that it would be quite inappropriate for the Crown Court to be bound by the unit fine scheme. There seems little point to us in introducing the scheme into the Crown Court for the relatively few cases that would arise under Section 41 of the 1988 Act.
§ This amendment therefore continues to bind the Crown Court to the sentencing powers of the magistrates' courts in cases to which Section 41(7) applies. For example, the value of the fine could not 1456 exceed the maximum that could be imposed by a magistrates' court. But the amendment does not require it to calculate a fine under the unit fine scheme.
§ Amendment No. 64A to Clause 20 is simply consequential on Amendment No. 60A. The Criminal Justice Act 1988 having been referred to in Amendment No. 60A can therefore be referred to simply as the 1988 Act thereafter.
§ I beg to move.
§ On Question, amendment agreed to.
§ Clause 16, as amended, agreed to.
§ Clause 17 [Fixing of fines in other cases]:
§ Lord Richard moved Amendment No. 61:
§ Page 14, line 3, leave out ("means of the offender so far as they appear or are known to the court") and insert ("disposable weekly income of the offender so far as it appears or is known to the court and shall impose a fine of the number of weeks' disposable income which in the opinion of the court is commensurate with the seriousness of the offence unless the court is of the opinion that this would be impraticable or inappropriate in the circumstances of the case.").
§ The noble Lord said: This amendment is slightly pre-empted by what the noble Lord the Leader of the House said in relation to the last amendment. Perhaps I may put the contrary view to the one that he has just expressed. These amendments would require Crown Courts to adopt the general principles of the unit fine system when imposing fines. They would be able to dispense with this requirement where it would be impractical or inappropriate in the circumstances of the case—for example, when fining a company, when it is impracticable to work out the exact weekly disposable income of a very rich offender or when there are other features of the case making the unit fine approach inappropriate.
§ I think that everyone agrees and the evaluation report of the Home Office itself on the recent experiments with unit fines concluded that the consensus among magistrates and court staff at all the courts involved in the experiments was that unit fines were an improvement on the present system. It seems to me that there is a very powerful argument therefore for applying the same principles to fines imposed in the Crown Courts. It seems unfair that if an offender is convicted of theft in the Crown Court he should be fined a different amount from the fine that he would have received for the same offence if he had been tried in the magistrates' court, and in consequence, if he fails to pay the fine, he should be liable to serve a different length of time in prison for default.
§ I think that extending the principle of unit fines to the Crown Courts is a perfectly practicable proposition. Indeed, some individual judges already adopt the principle behind the unit fine system by first at least mentally estimating the weekly amount which the offender can afford to pay and then reflecting the gravity of the offence in the number of weeks' disposable income which they require him to forfeit. These amendments would merely require this to become the normal and overt practice.
§ I therefore suggest to the Committee that all the arguments that the Government have rightly advanced in favour of applying unit fines in magistrates' courts are indeed equally valid in relation to Crown Courts. I beg to move.1457
§ 10.45 p.m.
§ Lord Harris of Greenwich
The noble Lord the Leader of the House tells us—I think I have understood aright—that it would be quite inappropriate to extend the unit fine system to the Crown Courts. He bases his argument on the fact that on only a limited number of occasions would the Crown Court impose a fine. But perhaps the noble Lord will tell us what damage would be done if the provision were extended to the Crown Court.
The noble Lord, Lord Richard, put what is in my view by far the most substantial argument in favour of the amendment. It is this. What happens in the case of the either way offence? The man opts for trial by jury on a charge of theft at the Crown Court. That is his right. However, by doing so he exposes himself to a wholly new situation. If he were fined for that offence in the magistrates' court he would be fined on the basis of the unit fine system. If he goes to the Crown Court he will be fined without that unit fine system applying. Why should that be so? Why should he be exposed to that further risk that if he does not pay the fine from the magistrates' court he will, for the most obvious of reasons, have a shorter sentence of imprisonment than will be the position if he does not pay the fine in the Crown Court?
I do not begin to understand the logic of the Government's position. I am sure that there is a valid reason for the provision. However, I find it difficult to comprehend the basis for the argument. We have not yet heard it. I hope that we shall now hear it from the noble Lord, Lord Waddington.
§ Lord Waddington
The principle that a court should take into account the means of an offender in setting the level of a fine should clearly apply to all fines, whether imposed by the Crown Court or by a magistrates' court and whether imposed on an individual or on an organisation. There can be no doubt whatsoever about that. Clause 17 of the Bill already makes that clear. The provision in Clause 17 allows a court both to increase and reduce the level of a fine in the light of the means of the offender so far as they are known to the court.
The Crown Court deals with the most serious cases. That is reflected in the fact that its power to fine is unlimited. In practice less than 1 per cent. of fines imposed are imposed by the Crown Court. The much broader—indeed unlimited—range of fines which can be imposed by the Crown Court means that the disadvantages and practical difficulties of requiring the Crown Court to follow the procedural requirements envisaged under the unit fine scheme far outweigh any benefits. Similar arguments apply to fines imposed on companies. It is clearly unrealistic to expect either a magistrates' court or the Crown Court to assess the disposable income of a company.
I think we all agree that the principle that a fine should take account of the means of an offender is right. However, except in the case of summary fines imposed on individuals —the vast majority of all fines —I think the guidance that is given the courts in Clause 17 is the right approach. The more structured unit fine approach should be reserved for those 1458 offences and offenders .where it is likely to have most practical benefit. That is what Clauses 16 and 17 achieve.
In answer to the point raised by the noble Lord, Lord Harris, about either way offences, if an offender opts for trial in an either way case, he exposes himself to different penalties. He exposes himself to the possibility of longer imprisonment. He exposes himself to the prospect of an unlimited fine in many cases. The situation which arises as a result of the structure of the Bill is therefore no different from the consequences which apply to an offender in an either way case when he opts to go to the Crown Court.
§ Lord Richard
I am not convinced by that argument. At this late hour the Committee would not be happy were I to ask it to divide. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ [Amendment No. 62 not moved.]
§ Clause 17 agreed to.
§ Clause 18 [Statements as to offenders' means]:
§ Lord Waddington moved Amendment No. 63:
Page 14, line 24, at end insert:
("(3A) Proceedings in respect of an offence under subsection (3) above may, notwithstanding anything in section 127(1) of the 1980 Act (limitation of time), be commenced at any time within two years from the date of the commission of the offence or within six months from its first discovery by the prosecutor, whichever period expires the earlier.").
§ The noble Lord said: The amendment simply exempts Clause 18 from the general rule that proceedings may not be instituted in the magistrates' court for an offence later than six months after it has been committed. This general rule is in Section 127 of the Magistrates' Courts Act 1980.
§ Section 80 of that Act makes an exception to the six-month time limit on instituting proceedings where false information has been given in a means inquiry on a defendant defaulting on the payment of a fine. The amendment follows the same pattern. I recommend it to the Committee and beg to move.
§ On Question, amendment agreed to.
§ Clause 18, as amended, agreed to.
§ Clause 19 agreed to.
§ Clause 20 [Default in other cases]:
§ Lord Mottistone moved Amendment No. 64:
§ Page 15, line 32, leave out ("3 months") and insert ("84 days").
§ The noble Lord said: This amendment has been advised to me by the Magistrates' Association. It has long been its policy that short periods of imprisonment in default of a fine are better expressed in days than in months. It is a psychological issue because using days instead of months gives the defendant the impression of a longer period of time without it being so. Therefore the sentence has a greater impact.
§ Clause 20 describes sentences in terms of seven days, 14 days, 28 days, 45 days and three months. I hope that my noble friend will give regard to this small point. It has been presented by the Magistrates' Association and therefore is the result of long 1459 experience of how such matters are best expressed in the practical life of giving judgments. I hope that the Government will be sympathetic. I beg to move.
I too support the amendment on behalf of the Magistrates' Association for the reasons put forward by my noble friend.
§ Lord Waddington
Three months sounds more familiar than 84 days. Before reaching a conclusion on how to answer the amendment I had to sit down and make sure that 84 days amounted to three months. Three months is common parlance and the way in which a sentence is normally expressed. One would not be changing to more normal parlance; one would be taking an exceptional course.
Periods for committal to prison are generally expressed in legislation as a number of days for periods of up to 45 days and then as a number of months. That is the approach adopted in the tables setting out maximum terms of imprisonment for fine default in Clause 20, the similar table in Clause 19 and existing tables in current legislation. If we are to break with that practice for maximum periods of three months' imprisonment for fine default, should we do the same for periods of six months for fines between £5,000 and £10,000? I believe that that would be 168 days. I do not believe that that sounds very familiar and it is certainly not a type of sentence which is ever passed by the courts. Should we adopt a similar approach for the statutory maximum period of imprisonment for certain offences?
My own preference is to retain the existing approach of expressing very short terms of imprisonment in days and longer periods in months and to rely on the good sense and experience of magistrates to impose a sentence of imprisonment which properly reflects the amount of the fine outstanding and the offender's culpability in non-payment. Therefore, I do not believe that any great benefit would be gained by going down the road recommended by my noble friend Lord Mottistone. The present practice is very familiar to all, and some eyebrows may be raised if the suggested change were to be made.
§ Baroness Seear
I have never known three months to add up to as little as 84 days, if my arithmetic is correct. The number of days in February, March and April, which are the shortest three months that one can have, add up to more than 84.
§ Lord Waddington
The noble Baroness is quite right. Normally terms of imprisonment expressed in months are calendar months. However, this is three times 28 days.
§ Lord Mottistone
Let us not be too worried about the arithmetic. I should like to refer the Leader of the House to the principle of this matter. He was arguing that as this is how matters have stood for a long time, there is no reason to change them. The magistrates work every day and have great experience of sentencing people. They reached this conclusion some time ago. I understand it has been their policy for some time.
1460 The magistrates are seeking to make a change on the basis of experience. With the greatest respect to my noble friend, in the higher courts it may not be a matter of importance. They are seeking to make a change only in respect of a three-month sentence. They are not seeking to make a change in respect of the longer periods. They do not seek to change the latter part of this clause in respect of a sentence of 10 years.
I leave with my noble friend and the department the thought that this is not a superficial matter devised by a crowd of cranks. It is a change proposed by magistrates whose experience shows it to be necessary. I am sure that they would not argue if the change was made to be 90 rather than 84 days. 'The principle is that they believe that this would have an effect on the people who appear before them in the courts. We know that out of all the people appearing in courts in this country, 98 per cent. come before the magistrates. The magistrates believe that this change would have an effect on those people. I do not believe that Members of the Committee should believe that to be a superficial matter to be ignored.
I shall not press the amendment now; but I hope that if it becomes necessary to return to this issue on Report, there may be a reflection that this is a small change which may prove to be a benefit to the administration of justice at local level in this country.
I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 11 p.m.
§ Earl Ferrers moved Amendment No. 64A:
§ On Question, amendment agreed to.
§ Clause 20, as amended, agreed to.
§ Lord Henderson of Brompton moved Amendment No. 65:
After Clause 20, insert the following new clause:
("Warrant of commitment for default in paying
§ .—(1) A magistrates' court may not issue a warrant of commitment for a default in paying any sum adjudged to be paid by the conviction unless it is of the opinion that it would be—
- (a) impracticable to enforce payment of the sum by a warrant of distress or an attachment of earnings order or an application for the deduction of sums from amounts payable to the offender by way of income support; and
- (b) inappropriate to enforce payment by any other method.
§ (2) Where a magistrates' court issues a warrant of commitment for default in paying any sum adjudged to be paid by the conviction, it shall state in open court the reasons for its opinion that it would be impracticable to enforce payment of the sum by a warrant of distress or an attachment of earnings order or an application for the deduction of sums from amounts payable to the offender by way of income support.
§ (3) A magistrates' court shall cause a reason stated under subsection (2) above to be specified in the warrant of commitment and to be entered in the register.").
§ The noble Lord said: I shall try to be brief but I need to take a little time in moving Amendment No. 65. It seeks to insert a new clause after Clause 20 and deals with keeping fine defaulters out of prison.1461
§ The requirement of the amendment is that any court which seeks to impose imprisonment in default of a fine must state its reasons in open court for believing that it is impractical to enforce the fine by attaching earnings, income support or distraint of goods. That requirement would substantially reduce the number of offenders sent to prison in default of paying fines.
§ Over one-fifth of the people sent to prison each year in England and Wales are in prison for non-payment of fines. In 1989 almost 17,000 people were imprisoned for fine default. One can imagine the strain that that number of people places on the prison system. Of course, that strain does not fall evenly on the prison system; it mainly falls on local prisons where there is the greatest overcrowding. If that number of 17,000 can be reduced those prisons under most pressure will be relieved of much of that pressure.
§ The workload imposed on those prisons in taking 17,000 prisoners involves each prisoner being received and discharged. That involves a large amount of paperwork, regardless of the prisoner's length of stay in prison. We seek to relieve the local prisons of that substantial extra load. I should have thought that that would enable the Government to give the amendment a friendly, warm reception. It is a benign rule in regard to the prison system.
In the House of Commons Mr. John Patten recognised that the new clause was what he called "well-intentioned". However, he also said that it was "unnecessary". I would not dream of introducing this amendment in the House of Lords if I were convinced that it was unnecessary. The evidence for saying that it is necessary comes from two studies. The first is a study by the respectable and highly regarded Vera Institute of Justice. In 1986 it published its report, The Enforcement of Fines as Criminal Sanctions which stated that,
courts rarely exhaust the enforcement options available to them before they resort either to the most coercive (and most costly) enforcement device—a committal to prison—or to writing off the fine as uncollectable".
That is an important finding. What is more, it was confirmed much more recently by Dr. Allison Morris and Dr. Lorraine Gelsthorpe, who published a paper in The Magistrate in October 1990. They concluded that powers other than sentencing to prison could be more widely used than they are at present. There again, that points to the necessity of this amendment. To use the words of Mr John Patten, it is not unnecessary. It is necessary from the evidence of those two reports. The second report concluded:
Arrears courts should perhaps be obliged to show that they have used all other powers available to them before resorting to suspended committals".
§ The discipline and giving reasons in the form required by the new clause would help to focus the court's attention on the alternative enforcement methods available and reduce the chances of defaulters being unnecessarily imprisoned. The clinching argument is that the Bill requires courts to give reasons for imposing custodial sentences, but does not require them to do so when imprisoning offenders for default. The arguments apply equally for both default cases 1462 and the unnecessary imposition of custodial sentences without reasons. Reasons are necessary in both cases. In order to make the Bill consistent, I hope that the Government will agree to this amendment. I beg to move.
§ Baroness David
I support this amendment to which my name is attached. The noble Lord, Lord Henderson, has moved it very convincingly. I hope this time, if the noble Lord the Leader of the House is responding, he will give a more favourable response than he has been giving to most of the amendments that have been moved this evening. It seems that the logic of the case is that reasons should be given in this case as when custodial sentences are given. It is very good for magistrates to have to think and to give their reasons just as they do when not granting bail. I hope very much that we shall have a nicer response this time.
§ Lord Morris of Castle Morris
It was most certainly the apostle St. Paul who wrote:The good I would, I do not. The evil that I would not, that I do".
So it is with this amendment. Courts should certainly be required to state their reasons for their opinions in open court,that it would be—impracticable to enforce payment of the sum by a warrant of distress or an attachment of earnings order or an application for the deduction of sums from amounts payable to the offender by way of income support".
The noble Lord, Lord Henderson, has referred to the research carried out and published in The Magistrate by Drs. Morris and Gelsthorpe. They concluded their article with these words:Arrears courts should perhaps be obliged to show that they have used all other powers available to them before resorting to suspended committals".
Those words are almost a pr écis or a paraphrase of the amendment which is before us. When they are the summation of the research of not one but two learned doctors (whether they be LL.Ds, M Ds or mere Ph.Ds, I know not) who am I, as an unregenerate academic who has spent his life prowling around universities teaching and conducting research, to doubt them and how could I fail to commend this amendment to the Committee?
§ Viscount Tenby
The hour is late and our spirits are flagging, but I shall be as quick as I can in replying to this particular amendment. It is with a heavy heart that I rise to say that I cannot support it. I acknowledge humbly the formidable legal expertise and compassion which the noble proposers command; but I believe that to place mandatory requirements on a bench's freedom of action when considering fine evasion cases adds nothing practical to the process. It will only add time taken in the disposal of a case. It is unlikely by itself to reduce the number of committals for fines evasion. I acknowledge that fact as someone who has long supported the principle that punishment in the community is in every way a more civilised and practical option than custodial sentencing other than for serious offences of violence and sexual offences.
So I am sad indeed not be on the side of the angels in this particular instance. Fines are the most 1463 important part of the sentencing system in the lower courts, and they account for the largest proportion of sentences by a very considerable margin.
In this part of the Bill we are concerned—are we not?—with the casualties of the system. But as a somewhat rueful introduction to my remarks I have to admit that some magistrates when sentencing do not stress often enough the importance that fines must play in the order of precedence so far as the financial commitments of the offender are concerned. Too many offenders, I fear, regard fines as just one more weekly payment, on a level footing with payments to the club or an instalment on the video, and it is not made clear to them sufficiently often that after essentials they must have absolute priority.
I think, if I may say so, there has been an overemphasis this evening of the poverty angle, as if every fined person was not just on the breadline but almost on the crumb line. The concept of imprisonment for fine default is of course repugnant in theory and in social conscience. It resurrects the times of Dickens. Clearly if there are any alternative practical ways of getting the money they should be used. In a civilised society, and with prison standards like ours, no one would dispute that.
But let me put the matter into perspective by referring to my own experience. The court of which I am chairman could, I suppose, be described as medium to large (ignoring large inner-city benches), having an establishment of some 95 magistrates and the regular use of a stipendiary magistrate. Last year 1.6 per cent. of all fine defaulters were sentenced to a term of imprisonment as a result of non-payment of fines. In effect this was a figure of 80. Of this total 33 paid in full before reaching prison and a further 10 paid in full while there. leaving 37 to serve a sentence which on average would have been a small one, say a fortnight.
Many of these 37 were persons who are fully aware of the system and play it to its full extent and who at the end of the day see imprisonment for default as far more effective for them financially than paying the original fine. I have to say that there is a small core of fine evaders who now play, and will continue to play even more if this amendment is passed, the system for all it is worth. They have no intention of paying until they are forced to—until, that is, they are faced with the stark reality of the prison gates, through being given forthwith a committal or a suspended committal. Experience shows that such people are far more likely - and I regret having to say this - to pay fines when the threat of prison hangs over their heads than when it does not, and any alternative forms of punishment are non-runners.
Now let me turn to the other side of the coin, which in many ways is the more important one, and it has not been touched on tonight. What we need to do is to reduce the number of fine payers at risk. I warmly endorse the attachment of benefits orders for those in receipt of income support, who are the majority of fine offenders; but what off f those on wages? Of course courts can issue attachment of earnings orders for those offenders, but assuming that they are agreed to by the defendant - and they have to be agreed to by the 1464 defendant, and I am afraid it is a big assumption-whether they become a reality or not lies in the hands of the employer. Particularly, it must be said, where smaller firms are concerned, non-co-operation is rife. This is hardly surprising when one looks at the ludicrously low fine levels for the offence that the law at present permits.
I cannot emphasise this point enough, and I hope that the Minister will be good enough to take it on board. It is something we all feel deeply about. Surely it must be right to do everything that we can, over the whole spectrum and not just a piece of it, to ensure that we make it possible, easy and automatic to part someone paying fines from his money so that he does not have the temptation to keep it for other purposes or does not have to make a difficult choice over relative priorities.
I would make a further point. Do we make it easy enough for offenders to pay? Very few courts offer payment by bank giro credit, credit card or direct debit. If these were universally available the number of enforcement actions would in my view be considerably reduced. But, even after all this has been done and all those constructive steps have been taken, there will still be those who wilfully refuse to pay or who culpably neglect to pay. I refer not to those who cannot pay but to those who will not.
Fines are a vital part of the sentencing system in the lower courts. They are an admirable way of dispensing justice, provided that they are realistic and uniform —essential requirements which the new unit fine system will go a long way to providing—but they must be collected if this particular form of sentencing is not to be brought into contempt and misuse.
I appreciate that this amendment will not take away the discretion of magistrates to commit people to imprisonment in suitable cases. But the input of the proposed restrictions is such as to make it an extreme and long drawn-out option. I would hope that any proper magistrate would in any event consider all the alternatives to imprisonment, as indeed he or she is required to do at present, without there being a need to chisel that requirement into the stones of the law.
Magistrates already have a discipline; indeed, any decent bench has a discipline in such matters. If this amendment goes to a Division and is passed, I fear that benches will be inclined to use the fine system less often and other less appropriate options more often, which would be to the detriment of justice in the lower courts.
§ 11.15 p.m.
§ Lord Waddington
The first part of the proposed new clause would require magistrates' courts to be satisfied that fine enforcement by distress warrant, attachment of earnings or deduction from income support was impracticable and that any other method of enforcement would be inappropriate before issuing a warrant of commitment to prison. However, I am glad to say that the provisions of Section 82 of the Magistrates' Courts Act 1980 already require a magistrates' court to consider all those aspects before issuing a warrant of commitment to prison for default, except where the case is punishable by imprisonment 1465 and the defendant appears to the court to have the means to pay forthwith. I believe that it is right—I say this, with the greatest respect to the noble Lord, Lord Henderson—to say that the first part of the proposed new clause is unnecessary. I say that because the powers are already included in Section 82 of the Magistrates' Courts Act 1980.
The second part of the proposed new clause would require the reasons for deciding that enforcement proceedings have proved impractical to be stated in court and recorded in the warrant of commitment and in the court register. However, Section 82 of the Magistrates' Courts Act also provides, as this amendment does not, that the court must also be satisfied that default was due to the offender's wilful refusal or culpable neglect to pay before it can commit him to prison for default. Therefore, ironically, the existing law actually imposes a more stringent requirement on the magistrates than that which is set out in the proposed new clause.
I must make it clear that a court cannot commit someone to prison solely on the basis that enforcement proceedings have proved unsuccessful or are inappropriate. That is only the first part of the consideration. Before commitment can be authorised, the court must also consider whether the failure to pay was due to wilful refusal or culpable neglect by the offender. If it is not so satisfied, it cannot commit him. It is the consideration of the question of wilful refusal or culpable neglect that is the final determining factor. That consideration is certainly announced in open court and recorded in both the court register and the warrant of commitment.
I mentioned earlier that the only exceptions to those arrangements were cases where a fine had been imposed for an offence punishable by imprisonment and it appeared to the court that the offender had the means to pay forthwith. If the court is satisfied that the offender has the means to pay, then I cannot see that it is sensible or helpful, despite that, to require the court to consider or try all other means of enforcement. It will be clear to the court that the offender appears to have the means but will not pay. The amendment would be unhelpful to the court and it might be considered as undermining its authority.
In answer to the point raised by the noble Lord, Lord Henderson, on the research by the Vera Institute, I am aware that research carried out into fines and fine enforcement in 1986 by that institute and by Drs. Morris and Gelsthorpe in 1990 suggested that the sanction of attachment of earnings is not extensively used by the courts. The reasons they gave for this were, first, that attachment was thought to place a burden on the employer that might lead to the loss of employment for the offender. Secondly, attachment of earnings can only be used when the offender is in steady employment. The new clause would not tackle either of those issues. In all the circumstances, I do not think that the new clause is necessary and, in any event, I doubt whether it is desirable. I cannot advise the Committee to accept it.
§ Lord Henderson of Brompton
I am grateful to the noble Lord the Leader of the House for his reply. It 1466 has been helpful for him to refer us to Section 82 of the Magistrates' Courts Act 1980. In view of what he said, I would not dream of pressing the amendment at this stage, let alone at this hour of the night.
I am nonetheless slightly puzzled by the discrepancy between the statutory requirement of Section 82 of the Magistrates' Courts Act 1980 and the findings of the two reports to which we have referred. In the interval between now and the next stage I shall look into the discrepancy and see whether it is worthwhile returning to it at the next stage of the Bill. I thank the noble Lord for his reply and beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 21 agreed to.
§ Lord Gisborough moved Amendment No. 66:
After Clause 21, insert the following new clause:
("Payment of fines by work in lieu
§ .—(1) The Secretary of State may by rules make provision to enable any offender on whom a fine has been imposed to perform work for an approved employer at an approved rate of payment.
§ (2) Payment for any work performed under rules made under this section shall be in the form of a certificate which may be used for the payment of all or part of a fine and for no other purpose.
§ (3) Rules made under this section shall require any work to be performed only at the request of the offender and may include provision for approved rates of payment by piece work to be varied according to the nature and difficulty of the work performed and for the value of certificates to be increased where appropriate in respect of approved necessary expenses incurred by the offender.").
§ The noble Lord said: Much police time is wasted in looking for defaulters and many fines are written off. To help cater for these and for those on low incomes the unit fine system, on the face of it, may seem to be the answer. However, I submit that it will be fraught with many drawbacks. First, it is unfair on the man with a job. He is penalised for working hard by being given a full fine, being ineligible for the unit fine rate. He may well lose his job by reason of the conviction. He will then be side by side on the dole with a man who has received a unit fine for the same offence and he will be unable to pay his fine.
§ Then there is the offender with a car who knows he is eligible for the unit fine rate and will find it much cheaper to risk having no insurance and paying the unit fine, if caught, than to buy car insurance. The Home Office says that fines would have to be large enough to deter this but then we lose the unit fine rate. The offender will be unable to pay his fine.
§ While the rate of the fine can be fixed to suit the income, what happens the next week when the same man appears, as he so often does, on one charge after another? He has no money to pay further fines, so either he is not fined at all or he cannot pay. All such cases would end up in prison. Many offenders cannot pay fines, maintenance and compensation so inevitably one or the other cannot be paid, whether or not there is the unit fine.
§ There is a simple way out of this. It does not in any way affect the sentencing which may or may not include unit fines although it dispenses with the need for unit fines; hence this amendment. It has nothing directly to do with unit fines but is a scheme to provide 1467 work for people who have been fined. Unlike the arbitrary sentence of imprisonment for non-payment which may or may not equate with the sum owing, the work would equate exactly with the fines owed. What would happen is that the fines office would ask an approved employer—for example, the Forestry Commission—at the request of and on behalf of the offender, for a job of work for a certain value. The employer would show the job to the offender and the latter would turn up at the employer's premises in his own time to perform the work unsupervised. Once it was completed, and provided that the job was carried out satisfactorily, the offender would be paid in the form of a certificate which would be valid for the payment of his fine; in other words, this would constitute piece work. Any expenses incurred such as travel expenses would count towards the fine and the cost of management of the scheme would be paid by the offender out of his real money by instalments.
§ The Forestry Commission has said that it could run such a scheme and that brashing would benefit its timber. I must make it quite clear that this work would not constitute a punishment or a sentence of the court, nor would it be imposed instead of a fine. It would be work made available by which to pay a fine. It would be made available purely at the request of the offender who sees an advertisement in the court waiting-room and who prefers to work for a week or two rather than spend the next year paying instalments with no money in his pocket. I fail to see that any complicated or expensive administrative problems will arise as a result of this.
§ While the unemployed yob is working in the woods or in another location, he will not be standing bored on the street with nothing to do and no money to spend, ready to commit his next crime to relieve his boredom. In some cases a week or two at work, perhaps in a wood, followed perhaps by a good reference, could set such a person on the road to a proper job. Such a scheme could also benefit youngsters by using up some of their surplus energy with work of this kind. Otherwise such energy could and often will be let loose in the evenings after the pubs close. In addition, the offender's cash income would then be available to pay maintenance and compensation. That is an important factor which has been part of the Government's policy. If the offender is on a low income, the suffering of his wife and family would be reduced, as would the consequent disharmony and possible break-up of his relationship.
§ Another benefit of the scheme is that fines of whatever amount would be paid sooner. This would save a lot of court and police time in chasing up defaulters. With so many benefits there must be a downside to the scheme and there is. Whereas money collected from fines goes into the Treasury, with this scheme the national forest would benefit instead. But we must remember that it is expensive to chase up fines and they are often written off. That makes a mockery of justice. Under the work scheme I have advocated, there is far less need to reduce fines and no excuse for not settling them.
§ Fines could be more closely related to the offence than to the client and the multiple offender will pay for 1468 the cost of his crimes. If the Government really want to reduce crime without recourse to prison, a provision enabling a person to pay an appropriate fine must make sense. It would also reduce the need for the final sanction of prison for defaulters.
§ This amendment would not in itself make any change whatever to sentencing. It would merely allow the Secretary of State to establish a scheme whereby a fine could be settled by the production of a certificate for the value of work done. The employer would carry out the administration for which the offender would pay. There are a number of other details such as tax arrangements, tools and travel which cover all the objections which have so far been raised by the Home Office. I believe that the scheme fits in with the Government's aims and I hope that the Committee will support it. I beg to move.
§ Lord Richard
This is an interesting and novel scheme. However, I am not sure how novel it is as there may have been schemes in the 18th century which had one or two similarities. It is an interesting scheme in the context of what we are discussing in this Bill. I have, however, one or two problems with the scheme, as I am sure the noble Lord would have expected. I am trying to follow the scheme. How does the money get to the court? The answer is that it does not. Presumably if the object is that the offender shall pay a fine—in other words, that the court will receive money from the man—presumably the prospective employer will have to buy the fine off the court before the employment commences. Otherwise a job is provided and part of the wages for the job are paid in the form of a scrip and that scrip is redeemable that is how I understand the matter—by presenting it to the court and it is then set off against whatever fine the offender owes the court. Therefore, in terms of cash coming into the court there is none. The employer, on the other hand, receives the benefit of the individual's labour at what would presumably be a negotiated price. Are the trade unions to be involved in the negotiation?
The noble Lord said that he thought that the unit fine scheme was fraught with dangers. I consider his scheme to be equally fraught with dangers. Before we on these Benches could give it our blessing we would wish to see a great deal more detail. I could not advise my noble friends to support the amendment.
§ Lord Gisborough
Perhaps I may answer those questions. The noble Lord is right to say that no money would change hands, except for expenses, which the offender would pay. The majority of the fine would be covered by the work that he did. There would be a certificate from the employer, which preferably would be a government employer, such as the Forestry Commission, or a charity. That certificate, stating that he had done work to a certain value, would satisfy the fines office that he had undertaken work in lieu of a certain level of fine.
The price of labour could be anything, but I propose that the offender should be paid one-and-a-half times the agricultural rate, by piece rate, but that could be determined.
1469 As to whether he would take other people's work, the work would have to be work which would not otherwise be carried out. That is why the scheme fits in so well. Brashing of forestry is uneconomic and is not done. Therefore offenders doing such work would not be taking the job of any union member but would be creating jobs, because once the forestry had been brashed it would be improved from the point of view of recreation and it could then be managed much more productively by paid labour. Therefore the scheme would create jobs.
§ Baroness Seear
The scheme is interesting. Like the noble Lord, Lord Richard, I am sure that there are considerable catches in it but I shall not go into them at this time of night. Regarding the question of the money reaching the court, I cannot see why the employer—the Forestry Commission, for example—instead of paying the man cannot send the money to the court. If he has earned the money he should not receive it, the court should receive it. Is that too difficult?
In that case the wrong person would be paying the fine because the person paying the fine to the court would not be the person who had incurred the fine or the reprimand.
I realise that the amendment is motivated by concern about poor offenders who may have difficulty in paying their fines. We share that concern. I know that the matter has worried my noble friend for a long time because he has been in contact with me about it. He has also been in contact with my right honourable friend Mr. Patten and will shortly have a meeting with my right honourable friend to discuss these points.
The noble Lord, Lord Richard, and the noble Baroness, Lady Seear, are quite right. There are a number of drawbacks to the scheme which my noble friend has put forward and I could not advise the Committee to accept it. My main difficulty is that my noble friend's proposals would inevitably involve the less well off offender undertaking something that would be very similar to community service when the seriousness of his offence properly calls for a fine. That would be at odds with the approach in the Bill for penalties to form graduated restrictions on liberty which increase with the gravity of the offence. That approach recognises that everyone's liberty is equally valuable while accommodating the fact that fines have a different impact on offenders according to their means. My noble friend envisages that the offender would ask to perform work in order to pay his fine. But we think that it is for the courts to decide what penalty is appropriate for the offender.
We are also concerned that my noble friend's scheme would be complicated and costly to administer. There would be overheads and a certain amount of supervision would be needed. Deciding what value to place on the work undertaken and what certificate should be given to the offender would be fraught with difficulties. If the approved employer were to make that decision, that would undermine the courts' sentencing role.
Another of our concerns is that the proposals could 1470 conflict with our obligations under the International Labour Organisation convention on forced labour. That convention rules out the use of compulsory or forced labour. Although it excludes from the definition of forced labour any work ordered by a court following a conviction, it specifies that the work must be carried out under the supervision of a public authority. It does not permit the offender to be hired out to or placed at the disposal of private individuals, companies or associations.
There are many difficulties associated with my noble friend's amendment. Although I understand his reasons for putting it forward, I could not recommend that the Committee accept it.
§ Lord Gisborough
I thank my noble friend for that reply. However, I do not accept any of those criticisms. The less well off offender would work at the rate of one-and-a-half times. The agricultural rate would be a fair starter to think about, but we must remember, for example, the lorry driver who is fined. He would perhaps drive his lorry for a fortnight to pay his fine. So it is exactly the same thing. They would both work to pay off their fine, so it makes no difference.
On the question of supervision, if we had a system whereby the offender were to receive a large bonus if the work was done properly, we would not need supervision. It has nothing to do with community service. It is purely at the request and to the benefit of the offender.
The first criticism of the scheme that I received was that it could not work because some trees were on the hillside and some were on the flat. The Home Office was really scraping around. Now it has thought of some more reasons. No doubt when it has got over these it will think of some more absurd reasons. It should come up with some proper answers rather than these idiotic replies if it does not like my proposal. I am sorry if I have perhaps said more than I should. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 22 [Committals for sentence]:
§ Earl Ferrers moved Amendment No. 67:
§ Page 18, line 3, leave out second ("the").
§ The noble Earl said: In moving this amendment perhaps I may speak also to Amendments Nos. 68, 69, 103, 104 and 105. This group of amendments makes a number of changes, mainly consequential, to the Bill's provisions on committal to the Crown Court for sentence.
§ The main change is in Amendments Nos. 69 and 105. These enable a magistrates' court for the first time to commit a company for sentence as well as an individual. The question of committing companies to the Crown Court arises now because Clause 22 changes the criteria for committal. Under the Bill these criteria are concerned with the seriousness of the offence rather than, as at present, with the character and previous convictions of the individual offender. These criteria are not appropriate in the sentencing of companies. I think it is right that the new criteria should also apply to companies. Circumstances may become apparent during the hearing, after the 1471 magistrate had decided to hear the case himself, which would justify a higher penalty than that which the magistrates' court could impose.
§ Amendment No. 68 allows a magistrates' court to commit an offender to the Crown Court for sentence if a number of offences of which he has been convicted, taken together, would justify a higher sentence than that which the magistrates have power to impose. This is consistent with the sentencing provisions elsewhere in Part I of the Bill and brings this part of the Bill in line with the earlier provisions. In Clause 2(2) (a), for example, a court may take account of all the offences before it in determining the length of a custodial sentence.
§ Amendment No. 103 amends the form of the caution which must be administered by a magistrate to a defendant, which refers to the possibility of committal for sentence if certain criteria are met. This is consequential on the changes to the criteria for committal made by Clause 22. The form of the caution should obviously reflect the new criteria rather than the old ones which are replaced. Amendment No. 104 is consequential on Amendment No. 103.
§ Amendment No. 67 is a simple drafting amendment to remove an unnecessary word from the preamble to Clause 22(2). I beg to move.
§ On Question, amendment agreed to.1472
§ Earl Ferrers moved Amendment No. 68:
§ Page 18, line 4, after ("offence") insert ("or the combination of the offence and other offences associated with it").
§ On Question, amendment agreed to.
§ Earl Ferrers moved Amendment No.69:
§ Page 18, leave out lines 18 to 20 and insert:
§ (4) The preceding provisions of this section shall apply in relation to a corporation as if—
- (a) the corporation were an individual who is not less than 18 years old; and
- (b) in subsection (2) above, paragraph (b) and the words 'in custody or on bail' were omitted."
§ (2) In Schedule 3 to the 1980 Act, paragraph 5 (provisions relating to committal to Crown Court for sentence not to apply to a corporation) shall cease to have effect.").
§ On Question, amendment agreed to.
§ Clause 22, as amended, agreed to.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.
§ House adjourned at nineteen minutes before midnight.