The Mayor of London and his policing surrogate, Deputy Mayor Kit Malthouse AM, are keen to introduce a pilot scheme in London whereby the courts could impose on offenders, whose offences were alcohol-related, a requirement that they be compulsorily tested for alcohol daily for a three months period with a positive test meaning arrest and appearance again in court.
Data in the US, where such schemes have been in place for eight years, show that reoffending rates after alcohol monitoring more than halved when compared with traditional sentences of fines or custody – with 99 per cent of tests being negative, and two-thirds of those on an alcohol monitoring scheme having perfect compliance throughout the whole period of the scheme.
This evening in the Lords, the distinguished cross-bench peer, Baroness Finlay of Llandaff, proposed a series of amendments that would permit such a pilot, saying:
“My Lords, this set of amendments concerns an alcohol monitoring requirement and is modified from those tabled in Committee on the Police Reform and Social Responsibility Bill. The alcohol monitoring requirement requires an offender to abstain from alcohol and be regularly tested to ensure compliance as part of any community or custodial sentence. It would provide an additional option—a new tool—for the courts.
These amendments would not stop responsible social drinking. They aim to deal with irresponsible, anti-social alcohol abuse and its devastating consequences. When I tabled these amendments previously, the Government’s response was that they would pilot the idea in October, using existing legislation for low-level crimes. October has come and gone. Where is the pilot? Anyway, this is needed for middle and high-level crimes, not just low-level crimes.
I should explain why we need primary legislation to undertake a proper pilot. London wants to do a pilot and will fund that pilot. The proposal has wide support. London Councils, which represents all 32 London boroughs, has written to Ken Clarke supporting the scheme. The chair of London Councils is Mayor Jules Pipe, the Labour elected mayor of Hackney. The scheme’s project board has representatives from Her Majesty’s Courts Service, London Probation, Public Health and the Crown Prosecution Service involved in developing the pilot. Consultation has involved domestic violence victims, Refuge, Women’s Aid, domestic violence offenders, health leads and those with an interest in the night-time economy from transport to addiction support services.
Today, I spoke to Bernard Hogan-Howe, the Metropolitan Police Commissioner, who is “fully supportive” of the proposal. He commented that alcohol is a precursor to crime in about 80 per cent of crimes in London and that after six o’clock at night you can smell the problem in the police cells. Violence against the person offences account for 64 per cent of Metropolitan Police alcohol flagged offences and criminal damage accounts for some 11 per cent of alcohol flagged crime. We should remember that only about 10 per cent of offences get flagged as alcohol-related even though, in recent British Crime Surveys, victims believe offenders to be under the influence of alcohol in about half of all violent incidents. The commissioner wants this to be a mandatory scheme. Voluntary schemes do not work because you need to support those who most need it and who are unlikely to recognise that need without compulsion. He wants this measure to act as a driver for better health as youth binge drinking is now a common cause of end-stage alcohol-induced liver failure in those aged under 25. We have a major social and health problem.
The Metropolitan Police view this measure as an additional tool against drink-driving and domestic violence. The proposed alcohol monitoring requirement has the potential to reduce reoffending for alcohol-related crime, particularly drink-driving and domestic violence, and contribute to long-term behavioural change of offenders. …
Courts need a different sentence to tackle alcohol-related crime because what we have is just not working. Custody tears families apart and single large fines damage the children in the home more than the offender. Neither custody nor fines address behavioural change. London wants to pilot this scheme in relation to offences of violence against the person, drink-driving and domestic violence. It is recognised that developing a scheme in relation to domestic violence would require particular care to ensure that the safety of the victim, including any dependants, is an integral part of the scheme.
These amendments will enable the court to take enforcement action on alcohol-related violence and to monitor compliance, particularly regarding middle-level offences such as common assault, offences against the person, threatening behaviour and domestic violence. How would it work? Pre-court screening aims to identify alcoholics whose needs are so great that the scheme would not be suitable for them. Alcohol monitoring as part of a suspended sentence, a community sentence or post-release licence would be an alternative to custody when the magistrate is satisfied that the offender understands the demands, which are no alcohol and daily testing.
Evidence suggests that the period needs to be 12 weeks to achieve real behavioural change. The court would order the offender to pay for each test—usually £1, which is less than such offenders are paying for their drinks. Let us get this in proportion: £2 a day is less than the cost of one pint of beer in a pub or two pints from many supermarkets. The cost of the monitoring to the offender is very low compared with the amount that they are normally spending on their huge alcohol intake—even when that is irregular. Testing would be done by either a private company or voluntary third-sector agency using paid staff, not volunteers. It will not tie up police constable time.
For the pilot, test centres would use existing court and probation premises near transport hubs. The initial alcohol test would be taken with a standard breathalyser. If it is positive, a second test would be taken with evidential standard equipment and mouthpiece. Breaches, which might be through a positive breath test, non-attendance or non-payment, would be dealt with using standard processes, with a swift and modest sanction such as an extension of the monitoring period in the first instance. Non-payment will need a flexible approach, particularly for those on benefits, and will be specified in the protocol. I have gone through the draft protocol but I shall not delay the debate by going through its minutiae.
The amendments are compatible with our human rights law—in particular, Articles 5 and 8, and habeas corpus. Let me be explicit: there is no compulsion on an officer to arrest a person for non-compliance and no compulsion to detain on arrest. An officer may arrest a person only when it satisfies the test of reasonableness and proportionality in Article 5.1(b).
In London alone, almost 9,000 cases would be suitable for the scheme. Between half and a quarter of these are people who are employed. The scheme would allow them to present for testing on the way to and from work, without any risk to their job. For offenders with anger and aggression issues, counselling and family support have the greatest chance of success when the participants are sober.
Existing orders that relate to offences for low-level crimes and have been used in cases of alcohol abuse do not have a success story attached to them. The alcohol-monitoring requirement would be appropriate for medium to high-level offences that require appearance at a court for sentencing. Existing orders were discussed with the Home Office and Ministry of Justice officials, but were considered inappropriate by those who want to pilot this scheme in London because, for example, drink banning orders keep people out of an area but do not halt the abuse, and are non-enforceable. Conditional cautions need to be voluntary, involve an admission of guilt and are managed by the police. The police do not want to use conditional cautions because they do not have the manpower and do not feel that such cautions are appropriate. Anti-social behaviour orders are civil orders to tackle harassment, alarm or distress to one or more persons not in the same household, and therefore do nothing to tackle domestic violence. Community sentencing could require attendance but not testing by breathalyser. Penalty notices for disorder do not require an admission of guilt, and do not count as convictions. The current fine of £80 is suitable only for minor offences.
I am sure that the Minister will say in response that the Government plan a pilot under community sentencing, just as they did previously for low-level offences, by using tagging for secure continuous remote alcohol monitoring—SCRAM devices that detect alcohol in sweat. These devices are not yet type-approved by the Home Office. They are bulky, are fixed around the ankle, and make a buzzing sound every 30 minutes as they sample the sweat. The offender cannot travel without prior permission because they have to be near the base station to download data daily. The wearer has to connect the device to the mains to recharge and cannot bath, use household cleaning or personal hygiene products that contain any alcohol at all, because that would give a false positive reading—and the device is in place for three months. As for the collection of the £1 test cost, the principle of hypothecation locally is already in place for asset seizures. The police can already hypothecate when the money is there.
We have an epidemic of alcohol abuse in this country. We cannot carry on doing what we are doing. It just is not working. These amendments would allow a full pilot to take place in a small area. London wants to do that to discover how well it works or not, and to iron out any problems. These amendments are essential to allow that pilot to happen. I beg to move.”
The amendments were supported by speeches from all parts of the House: Liberal Democrats, Lord Avebury and Lord Carlile of Berriew; Conservatives, Baroness Jenkin of Kennington and Baroness Newlove (whose husband was kicked to death in an alcohol-fuelled murder); Labour, Baroness Dianne Hayter, Lord Willie Bach (from the front-bench) and myself; and Cross-bencher, Baroness Howe of Idlicote.
Unanimity had broken out, until the Government spokesperson, Baroness Northover (a Liberal Democrat, but no doubt a Conservative Minister would have said the same as they did when the same proposal was raised a few months ago) rose to respond.
She offered supportive phrases:
“we very much support the principle of the intention of the noble Baroness and other noble Lords who have contributed to this debate.”
Supporting “the principle of the intention” is a bit like those non-apology letters you get saying “we are sorry you found it necessary to complain”.
And promised two non-statutory pilots (which would be unlikely to reach the most serious offenders) – in due course = when the Government has published its alcohol strategy and gone throughout the approval process for the technology it wants to use.
And, of course, the Government wants
“to hear the views of the judiciary, professionals within the criminal justice system and the public on the proposals. We will therefore be consulting in parallel with the pilot schemes to ensure that we give full consideration to the purpose, effect and benefit of sobriety schemes as we develop work further.”
“I will not press my amendment tonight, but I look forward to further discussions, and I must warn the Government that if I do not get satisfactory answers I intend to bring this back on Report.”