Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 14) Order 2019

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 14) Order 2019.

My Lords, I begin with a short apology for the delay in commencing. The purpose of this draft instrument is to enable the Secretary of State to make the alcohol abstinence and monitoring requirement available across England and Wales.

This legislation gives the court a new tool directly to address alcohol-related offending. As part of a community sentence, judges and magistrates will be able to impose a ban on drinking alcohol for up to 120 days, and we will monitor this using continuous electronic monitoring, which is referred to as alcohol tagging. I am grateful for the comments made by the Lords Secondary Legislation Scrutiny Committee and intend to address them below and in the course of this debate.

Alcohol-fuelled crimes put a huge strain on front-line services. Problematic alcohol consumption is associated with crime, particularly heavy or binge drinking and violent crime. The latest published figures from the Crime Survey for England and Wales, in 2018, estimated that in 39% of violent incidents the victim believed the offender to be under the influence of alcohol. Alcohol-related crime is estimated to cost the taxpayer up to £13 billion per year. Public Health England estimates that the total social and economic cost of alcohol-related harm was £21.5 billion in 2018.

AAMRs have a punitive effect on offenders by restricting their ability to drink alcohol while the requirement is in force. In addition, the pilots have shown us the potential of this measure to address the purposes of sentencing more widely. Where the criminal behaviour is driven by alcohol, an alcohol ban has the potential to reduce crime and provide the opportunity for reform and rehabilitation. Through enforcing abstinence, AAMRs are designed to mitigate offending behaviour which is driven by alcohol. Where alcohol is driving or triggering criminal behaviour, the AAMR will interrupt it and should give individuals and communities a break, reduce the number of victims, protect the public and save the costs of dealing with the crimes.

The monitoring will be continuous and delivered via electronic ankle tags, providing assurance with compliance. If alcohol is detected, or attempts are made to avoid the monitoring, the offender can be returned to court. These requirements may not be imposed on dependent drinkers or alongside an alcohol treatment requirement. They are only for adult offenders.

Harnessing innovative technologies such as alcohol tags can not only punish offenders but help turn their lives around. This legislation plays an important role in a wider package of reforms of community penalties that the Government plan to bring forward in due course, which will ensure that community sentences can offer an appropriate level of punishment while effectively tackling underlying drivers of offending.

The alcohol abstinence and monitoring requirement was introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. This legislation creates a new requirement within the Criminal Justice Act 2003 that can be used where a community order or suspended sentence order is imposed. The 2012 legislation requires the order to be piloted before it can be rolled out. This requirement has been met. There have been two pilot schemes: one in London, initiated by the Prime Minister when he was mayor, and the other in Humberside, Lincolnshire and North Yorkshire. These pilots have shown us that this new measure will be welcomed by criminal justice partners.

My Lords, there is widespread agreement that a great deal of crime is related to and fuelled by alcohol. Indeed, Members of your Lordships’ House have been saying for many years, in debate after debate, that much offending in this country is related to excess alcohol and drug abuse, so the passage of Section 76 of the LASPO Act was unsurprising. There is also widespread agreement that we all should support measures to reduce the consumption of alcohol in relation to crime, and thus alcohol-related crime.

The alcohol abstinence and monitoring requirements, which I shall call simply alcohol monitoring requirements, use electronic tagging technology to ensure that offenders reduce or eliminate alcohol consumption for a period. The essential elements for the application of Section 76 of the LASPO Act are: first, that the offences concerned are alcohol-related; secondly, that during the period of the order the offender will take no alcohol, or alcohol reduced to a specified level; thirdly, that the consumption of alcohol will be electronically tagged; fourthly, that the period of the requirement will not exceed 120 days; fifthly, that it can be imposed only together with a community order or suspended sentence; and finally, that a breach of the requirement is punishable by a sentence for that breach.

The Committee has heard from the Minister that there have been two pilots. The London pilot ran from 2014 to June 2018, while the Humber, Lincoln and North Yorkshire pilot—which I shall call the northern pilot—ran from after the 2017 election until April last year. There were different methodologies. The London requirements were imposed on a stand-alone basis, whereas the northern pilot imposed the orders together with community orders, while monitoring and fitting of the tag was carried out by probation staff. In addition, the northern pilot included domestic abuse offenders whereas the London pilot did not.

I suggest that the problem is that there are two obvious reasons why the pilots may give little indication of the long-term effect of alcohol monitoring requirements. The first is that these requirements impose, or will impose, a short-term break—it is significant that the noble and learned Lord used that term—or short-term reduction in alcohol consumption. In other words, they run for a limited period only, during which time the offender is reducing or eliminating alcohol intake. The pilots tell us nothing about the likelihood of such an offender resuming excessive alcohol consumption after that break; that is particularly true where the break or reduction takes place without treatment or guidance from probation officers or other agencies that can help the offender. There is also no evidence concerning the effect of resuming alcohol consumption on reoffending, except for the general elements we know—for example, that much crime is alcohol-related.

Secondly, the reason why the requirements may be said to work is that they enforce the break or reduction in alcohol consumption. That is precisely because electronic tagging is effective. Let no one kid themselves that the 94% compliance rate—it is 97% in the north—is the result of an offender deciding to go without drink. It is not. It is a result of the offender being tagged and knowing that they will be caught drinking alcohol and sentenced for breach in the event that alcohol is consumed. These results are not the consequence of voluntary abstinence. One can conclude that it is more likely in the event of these requirements being in place that the unwilling short-term abstainer will resume consumption when the enforced break is over. That is as true of the merely weak abstainer, rather than the unwilling one.

I stress that this concern is heightened by the state of the probation service. As we know, it is under-resourced and, frankly, in crisis—if not chaos—according to all the reports on its current functioning, so support for offenders with past alcohol-related offences is not good enough. If it is not good enough, these monitoring requirements will be unlikely to help.

The Secondary Legislation Scrutiny Committee believe that it is

“inappropriate for the House to be asked to decide on further roll-out before information on the reoffending rate is available.”

I agree.

The impact assessment mentions other uncertainties. In paragraph 46, under the heading “Risks and Sensitivity Analysis”, it says:

“The analysis in this IA has a very high degree of uncertainty because it is heavily based on assumptions where there is limited information”.

I interpose that the greatest uncertainty is that to which I have spoken: the effect on reoffending rates. The impact assessment goes on to set out two further uncertainties,

“in particular about how sentencing behaviour might change if AAMR were rolled out, including potential changes in the combination of requirements given.”

Those are also good points.

The committee’s conclusion was almost as severe as any that one reads from committees at this time:

“the House is being asked to approve the programme on the basis of very limited information. This is unacceptable. While we find the proposal interesting, it seems premature as the House currently has very little means of assessing whether the MoJ’s assertions are overly optimistic.”