Memorandum Submitted by The Magistrates' Association (CJ&I 02)

Criminal Justice and Immigration Bill

This paper sets out the response of the Magistrates' Association to the provisions of the Criminal Justice and Immigration Bill. The paper has been prepared by the Judicial Policy and Practice Committee, the Sentencing Policy and Practice Committee and the Youth Courts Committee after consultation with the Association's membership.

Part 1: Youth Rehabilitation Orders

Clauses 1 to 8 and Schedule 1 Parts 1-4 introduce youth rehabilitation orders (YROs), a new generic community sentence for children and young people. They set out the requirements that may be attached to a YRO, make provision for their enforcement, revocation, amendment and transfer to Northern Ireland, and abolish certain existing community sentences which are to be replaced by the YRO. In Schedule 1 details of the new Order are set out. We are concerned that:

· There is no inclusion in the list of requirements of the Reparation Order. This has been kept as a separate order sandwiched between a Referral Order and the new YRO. This separation will only serve to confuse young people. Whilst in its own right it is not a community sentence, neither are many of the other requirements in the new YRO and therefore the Association cannot see, nor has it been given, any good reason why this order has been excluded and left separate.

· We welcome the option of an Intensive Fostering requirement although very stringent safeguards and full information must be provided to the bench including consideration of welfare whenever this requirement is proposed. However, in section 18, paragraph 7 of Schedule 1, it states it cannot be imposed unless the Secretary of State has notified that the requirement is available in the area. Resources must be made available for more robust community sentences, like these, to be made available as they offer real alternatives to custody.

· The same comment applies to the Drug Treatment requirement as its availability is also controlled - see section 22 paragraph 4 also in Schedule 1.

· This schedule also gives the Secretary of State enormous powers to vary the provisions of many of the requirements of the order, for example the maximum and minimum number of hours for the unpaid work requirement. We would argue that these powers should not be given to the Secretary of State to amend just by an order to be laid before Parliament.

Part 2: Sentencing

Clause 9 sets out the purposes of sentencing in relation to young offenders

The Association welcomes the clarity that this clause will introduce for magistrates when they are sentencing youths in the courts.

Clause 10 restricts the use of suspended sentence orders to indictable and either-way offences.

Clause 10 proposes that suspended sentences could not be ordered for summary offences although the power would remain for indictable and either way offences. However, if two or more custodial sentences were being considered on the same occasion - at least one summary and one indictable - and it is intended to impose a suspended sentence for the indictable offence, a suspended sentence could be imposed for one or more of the summary offences.

We can see no logical or good reason for this proposal and it may be that this is the first time that there has been a proposal which differentiates so radically in sentencing disposals between summary and either-way matters. It would mean that when the custody threshold was passed and the offence merited a custodial sentence, then the offender would be sent to prison, whereas we feel the present situation is an excellent deterrent with the right to impose immediate custody, but suspend it.

We believe this proposal may be driven by the current state of overcrowding in prisons but that it would in fact increase the numbers in custody. We believe that research into SSOs made since April 2005 has not been sufficiently robust yet to show that it is SSOs that have, or will have, a significant impact on prison population. On the contrary, it may well be that an SSO impacts less on the prison and probation services and resources than either an immediate custodial sentence or a high level community order with a greater number of requirements.

We accept that there may be a need for further training on SSOs to re-emphasise the fact that they are a custodial sentence. Otherwise we believe that an alternative, which would solve the perceived problem, would be to return to the position regarding suspended sentences that applied before April 2005.

Clause 11 clarifies courts' sentencing powers to make it clear that a court is not required to impose a community sentence in cases where the offence is serious enough to justify such a sentence.

This section is unnecessary and repetitious. This principle is already established in the Criminal Justice Act 2003 and the Sentencing Guidelines Council advice of May 2007.

Clause 16(2) provides for non-dangerous offenders who breach the terms of their licence or who re-offend to be recalled to prison for a fixed period of 28 days.

Making the specific 28 day recall statutory is a licence to re-offend. Not all breaches are the same in terms of seriousness. If there is a fixed period this treats all breaches at the same level of seriousness. There should be discretion here for the judiciary to decide whether to recall to prison and for what period. The nature and seriousness of the breach should decide the length of the period of return to prison.

Clause 16(10) provides for the Secretary of State by order to amend the number of days for the time being specified in subsection (2) or (7) (a)

It is not unusual for Secretaries of State to reserve such powers but we believe this will send out the wrong message since the likelihood is that the 28 days would be amended downwards.

Clauses 19 and 20 amend the criteria for the availability of the early removal scheme, under which offenders liable to be deported may be released from custody early. The clauses also extend the scheme to other offenders if they show a settled intention of residing permanently outside the UK.

We welcome moves to improve the operation of the early removal scheme.

Clause 21 would allow Youth Court magistrates to sentence offenders to a Referral Order, under certain conditions, even if they have committed a previous offence.

The Association welcomes the flexibility in the use of Referral Orders which is proposed in the Bill, which we would expect to use at the lower end of offences. However, we would also like the flexibility not to use referral orders at the high end which is NOT proposed in the Bill. Currently a Referral Order must be given for the first offence where an offender pleads guilty if the offence is imprisonable. The only alternative to this, which applies for very serious offences, is custody. Magistrates in England and Wales have argued for some time that a lengthy community sentence such as a Supervision Order with robust requirements would be far more appropriate than a Referral Order for offenders who commit serious imprisonable offences, but where custody is not appropriate, eg sexual offences, burglary, serious assaults.

Referral Orders have not proved to be effective penalties for young people committing serious crimes and have not deterred them from re-offending. The Bill does nothing to change this position. Therefore it is likely that more young people could enter custody because of the lack of sentencing options for serious offences.

Clause 22 reduces from 40 to 20 hours the minimum period of unpaid work that may be imposed for breach of a community order.

We welcome this proposal in principle.

Clause 23 and Schedule 5 introduce Youth Default Orders which will enable a court to impose an unpaid work requirement, curfew requirement or attendance centre requirement on a young offender in lieu of an unpaid fine.

The Association welcomes the greater sentencing options of these new orders. These provisions must be used when a young person will not pay rather than cannot pay. However, it must be remembered that more unpaid work would put greater pressure on the resources of Youth Offending Teams (YOTs) and Probation, which are both currently over-stretched.

Clause 25 affords the staff of Her Majesty's Court Service (HMCS) access to benefit records held by the DWP for fine enforcement.

We consider this to be a sensible idea.

Part 3: Appeals

Clause 26 alters the test applied by the Court of Appeal when considering appeals against conviction.

We would question the term 'plainly guilty'. A defendant either pleads guilty or is found guilty.

Part 5: Other criminal justice provisions

Clause 53 and Schedule 11 extend the adult conditional caution scheme, to young offenders aged 16 and 17 years. The provisions allow for a caution with specific conditions attached to it to be given where there is sufficient evidence to charge a suspect with an offence which he or she admits, and the suspect agrees to the caution. It would be for the prosecutor to decide whether a conditional caution was appropriate, and in most cases for the police to administer it. If the suspect failed to comply with the conditions, he or she would be liable to be prosecuted for the offence.

This is again taking sentencing out of the courts and giving wide powers to the CPS and Police. We believe that sentencing must be carried out by the judiciary. There is no mention of the financial penalty being subject to means; the kind of place a youth may be asked to attend or that a responsible adult should be present if conditions are varied. Whilst there are five requirements for the implementation of a Conditional Caution mentioned in the Bill, none of these make direct reference to the involvement of the Youth Offending Team - something the Association considers essential. We would also question whether resources will be available for these provisions as there is doubt that there will be sufficient resources for adult Conditional Cautions with conditions of, say, unpaid work. There is also some evidence to suggest that such measures are not always imposed any more quickly than if dealt with in a court.

It is constantly stated that out of court disposals are intended for low-level offences and that pre-court activity can properly take place in relation to matters that are not serious enough to come to court. The Association is very much in favour of keeping children and young people out of the criminal justice system wherever that it possible and for appropriate low level offences. However, this new provision gives the Police/CPS the authority to impose conditions on young people to complete various tasks for offences that are not made clear in the Bill and the Secretary of State is being given the power to specify the appropriate offences to which these conditions will be attached. The Association finds this devolvement of power totally unacceptable.

Schedule 11, 66G refers to a Code of Practice.

If a Code of Practice is developed, it must also mention how these cautions are to be recorded and information made available to magistrates.

We believe there are two notable omissions in Schedule 11 that need to be included in the Bill:

· There is no mention as to the maximum number of times a Conditional Caution can be used in a year, and

· There is no mention as to involvement of YOT.

In summary, the Association is strongly opposed to this new pre-court tier as it may well be used for more serious cases which should come to court. It is unnecessary and will only lead to confusion in the minds of young people and the lowering of confidence in the youth justice system in the minds of victims and witnesses.

Clause 54 and Schedule 12 amend the Rehabilitation of Offenders Act 1974 to bring warnings, reprimands, simple cautions and conditional cautions within the ambit of that Act.

Under the Act convictions are spent after a certain time depending on the sentence and except if it resulted in a prison sentence over 30 months. Except in certain circumstances, eg if working with children or vulnerable adults, spent convictions do not have to be declared. Schedule 12 amends the Act to include simple cautions, conditional cautions, reprimands and final warnings.

Simple police cautions, reprimands and final warnings will now be spent at the same time they are given - conditional cautions will be spent after three months. It will be an offence to disclose information about spent cautions to a third party except in the course of their duty. No one may ask a question in civil proceedings in relation to a spent caution and if asked the person may say they have never had a caution. Failure to disclose a spent caution is not a reason for dismissal - the exception would be for those working with vulnerable children and adults. While we welcome the extension of the ROA 1974, we think the whole process of whether or not previous matters should be declared is confusing for professionals and ordinary members of the public alike and should be completely reviewed as identified in Breaking the Circle (2002) with which the Association was closely involved.

Clause 56 and Schedule 13 amend Schedule 3 to restore the power of magistrates' courts to commit cases tried summarily to the Crown Court for sentence.

This makes amendments to part of the CJA 2003 not yet in force. We understand it restores the general power of a magistrates' court to commit to the Crown Court for sentence (following a summary trial) if the bench think their powers of punishment are insufficient. We welcome this, but consider the general legislative situation to be confusing. This Bill amends an unimplemented part of an earlier Act, which in turn altered another Act which is still in force - the effect appears to be to retain the status quo. Less legislation and better thought out provisions would avoid such confusion.

Clause 57 creates a presumption that, if defendants fail to attend for trial without good cause, magistrates will use their powers to try them in their absence and sentence them if convicted.

The court can impose disqualification or custody in absence if bailed to appear, not if summoned. Sentencing to custody in absence is a very serious step: courts may have genuine concerns over this leading to under-use. As there is a (welcome) provision that the person concerned must be brought before the court before being taken to prison, there would appear to be little to gain from this provision. Sentencing to disqualification in absence seems a sensible idea in principle, in fact many courts are already proceeding in absence, but factors such as the performance of the postal service must be taken into account - a defendant could be disqualified in absence and drive before receiving notification.

Clause 58 extends the range of proceedings in magistrates' courts where the Crown Prosecution Service (CPS) may be represented by a Designated Case Worker (DCW) rather than a Crown Prosecutor, who is a lawyer.

We are strongly opposed to this proposal - it could be viewed again as a downgrading of the magistrates court. We understand that the CPS does not favour this. It will give the DCW the power to conduct trials - so there will be no appropriately trained prosecution lawyer available if legal issues come up during a trial. We believe it is financially driven as a DCW is cheaper than a lawyer. This may speed up processes in court depending on the calibre of the DCW but it may cause delay and our priority is for cases to be properly and efficiently presented to us in court.

Clauses 59-61 amend the legal aid provisions in the Access to Justice Act 1999 to: allow rights to representation to be applied for and granted provisionally before the point of charge; allow HMCS staff processing means tested applications to access Her Majesty's Revenue and Customs (HMRC) and DWP records for the purposes of assessing financial eligibility; and widen the powers to pilot schemes relating to the grant of legal aid.

It is not for the Association to say how legal aid should be administered. Our sole concern is that the agreed system ensures that the work of the court is not delayed and that the genuinely poor can be represented in court when necessary. In its response to the proposed legislative changes outlined in a recent letter from Vera Baird QC MP (then a Minister at the Ministry of Justice) the Association suggested that there would be merit in applying for a representation order before charge in complicated cases where the investigation is protracted, but for most summary or either-way cases we would hope that charges could be put without delay - so some other method is needed to process applications quickly.

Part 6: Criminal Law

Clause 72 amends the Street Offences Act 1959 in relation to the offence of loitering etc for the purposes of prostitution in order to promote rehabilitation.

We are concerned about the practicalities of this proposal; would three meetings be sufficient to address any real problems, such as drugs? Who will supervise these orders? What happens if the offender doesn't turn up?

There are also problems with prostitutes who are already subject to substantial financial penalties for earlier offences. If they are to continue paying fines imposed at an earlier date, the prospects of rehabilitation are limited.

The provision under (2D) that if the court makes an order (under subsection 2A) it may not impose any other penalty in respect of the offence, should be deleted to allow a court to impose a fine in cases where the offender has sufficient money to pay. We would suggest that this proposal is not introduced unless adequate funding and quality control are in place and there is a clear and realistic alternative to the Probation Service in the frame for the provision of supervision.

Part 8 - Violent Offender Orders

Clause 83 will allow courts to impose post-sentence restrictions on those convicted of violent offences, eg residence or movement restrictions. They will only be available in cases where a person has a conviction for a specified violent offence and has been assessed as continuing to pose a high risk of serious violent harm. The Bill provides a right of appeal against the making of an order.

We welcome the reduction in the number of offences which can trigger this order. Most defendants who would qualify for a Violent Offender Order (VOO) will be dealt with in the Crown Court except for some who might be made subject to a hospital order. This order is made by an application to a magistrates' court and we cannot see any provision for the Crown Court to make an order on conviction or subsequently. This is not logical. If the Crown Court has sentenced the offender then it should also have the power to make a VOO. If they are to be imposed by the magistrates' court, then it is important that the magistrates have all the relevant information that was available to the Crown Court.

Defendants who are made the subject of a VOO are likely to be at high risk of breaching it and there should be an expectation of a high breach rate and consequent punishment by way of imprisonment. However this could be alleviated by providing offenders with appropriate support during the period of the order. There must be adequate provision for such support.

Part 9 - Anti Social Behaviour

Clause 108 introduces a proposal to review ASBOs after 12 months for young people.

The proposal does not go far enough. It is an attempt to mask the basic problem, which is that the minimum period for an ASBO for a young person under 18 is 2 years. The Association and many other organisations including the Youth Justice Board have campaigned for this to be at the discretion of the courts. Two years in a young person's life is a considerably long time for them to adhere to very stringent conditions as attached to an ASBO. This was recommended in 2005 by the House of Commons Home Affairs Select Committee report about anti-social behaviour. The Association would argue that the Government has recognised the strength of the argument in this Bill, but the proposals do not go far enough.

Clause 109 extends the use of Individual Support Orders

The Association has long advocated the greater use of Individual Support Orders (ISOs). We welcome the proposals in this clause, especially that ISOs can now be attached to ASBOs made on conviction.

Clause 110 - proposals to extend the availability of Parenting Orders

The Association welcomes the proposals to extend the availability of these orders.

October 2007