Police, Crime, Sentencing and Courts Bill (Third sitting)

(Limited Text - Ministerial Extracts only)

Committee stage
Thursday 20th May 2021 Public Bill Committees

[The Chair]

Thank you very much. Mr Philp.

[The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)]

Q Thank you, Sir Charles, and thank you everyone for joining us this morning and for the work that you do in trying to protect the public and rehabilitate offenders. We are all very grateful to you.

May I start with problem-solving courts? Clearly, as with so many things, it is important that the implementation is right; there are some things that work and some things that do not. Can you give your views on the things that have worked and the things that have not worked in problem-solving courts that we have tried in the past—I think there was one in Merseyside a few years ago—and the lessons that we might learn from problem-solving courts in the US, as we design and implement the pilot?

Helen Berresford: This is not something that we have significant expertise in at Nacro, in terms of learning from previous pilots. With any of these things, we have to understand, as you say, what has worked and what has not worked.

The point that we made earlier about the role of building judicial confidence, which was picked up on, is a really important one, and that confidence has to be central to problem-solving courts as we roll them out. Getting the right people involved and the right support functions is important. One of the important purposes—is it not?—of problem-solving courts is that you bring the right people into the discussions and keep them engaged.

I will just refer, for example, to community sentence treatment requirements. We know from our experience of what we have seen that engaging with the judiciary in that process has a really positive impact. That is one of the things we have seen and that we would like to see much more of in the roll-out of CSTRs, and I would say the same for problem-solving courts.

Sam Doohan: In addition to building interest and engagement in the judiciary, one of the other issues is also building interest and engagement among the local population. The courts need to be credible, both to offenders and to the local population. That is probably the biggest step that needs to be taken. If local people think that someone will effectively get just a slap on the wrist and that the problem-solving court does not solve the problem, they will not bother reporting minor crimes and, to some degree, neither will the police. It is very important that that credibility takes centre stage and that the whole process has some faith that its measures will actually be successful.

[Chris Philp]

Q You mentioned CSTRs, which obviously are referred to prominently in the White Paper. I strongly support them and want to see them being rolled out, because they treat the underlying causes of offending, in particular mental health problems, and drug and alcohol addiction.

First of all, do you share that analysis, particularly where a CSTR might be an alternative to a short sentence? If you do share that analysis, what do you think we can do to encourage the wider use of CSTRs, in addition to the extra money for the actual treatment that is being provided at the moment? I ask that because I would like to see them being used a lot more.

Campbell Robb: Yes, we would too, and I think the evidence suggests that when they are used properly they can have a significant effect, on both the addiction or the mental health issues that people are suffering from, and ultimately—we think in previous studies, but not recently—potentially on reoffending. So we are very supportive of them.

I think that, as you would expect us to say, they need to be part of a wider network that is available, ranging from wider drug treatment services, through the NHS and other public health bodies, to job opportunities. They are part of a holistic approach—part of a whole series of interventions that can help people.

On their use as an alternative to sentencing, we could not agree more. That is the work that Nacro does every day, with hundreds of people across the country. If we can use them to help support people through their mental health issues, or drug and alcohol issues, and keep them out of the criminal justice system, then absolutely; we could not agree more. We are very supportive and would want to work alongside to get more of them up and running as soon as possible.

I agree that having the judiciary, as well as the public, see them as a viable alternative is something we all need to work on once the Bill becomes an Act, so that we really get that buy-in and momentum behind them so that they can be used more widely.

Helen Berresford: We have seen an increase in their usage in the test sites. The only point I would add, without repeating my earlier comment, is that building judicial confidence will be an important part of this. That is a really important thing to learn from. Continually evaluating and learning as we roll these out will be really important, learning where they have worked and where they have not. If we can build that in, I think there is a really positive role for community sentence treatment requirements.

Sam Doohan: There is also an issue with building faith with offenders and the people who will potentially receive treatment. One of the concerns that we hear with these kinds of disposals is that people are worried that their criminal record will show that they have been in drug treatment or mental health treatment. In general, although not in the absolute, that is not a problem, because it will not show up and they will not have to disclose it. But people do not know that and they do not necessarily have a great deal of faith that it will not show up three, four or five years later, when they have turned their life around.

I mention that in particular because a DWP study from 2010, I think, found that the only group who, in employment terms, were discriminated against on a par with people with convictions were alcoholics and drug users. Therefore, ensuring that people understand the full ramifications of co-operating with a drug treatment programme—that it will be private, to a large degree, and that it will give them the opportunity to move on positively afterwards—would go a long way.

[Chris Philp]

Q Thank you. Helen, you raised a point about the potential for custodial sentences following a breach of a community order. Does it reassure you that obviously that is a matter of judicial discretion, and that we expect judges to use custody only as a last resort—indeed, they are bound to do so? In order to ensure that community orders are complied with, judges need to have that option as a last resort. It is to be used rarely, but none the less it needs to be available, should it ever be required.

Helen Berresford: Our preference—and yours too, I hear—is very much about looking at community sentences, where they are more effective. If there is an option of custody, I think we really need to build that in as an absolute last resort, and it is worth looking at how we can ensure that is the case. Certainly, on a broader point, in the past we have seen increases in recall to prison, and in some cases people have been recalled for very minor breaches of their conditions, and nothing to do with committing a crime. It is really important that we ensure that is not what we are doing. If there is a condition about prison as a last resort, we have to make sure that it is for a very significant reason and that it is truly a last resort.

[Chris Philp]

Q Thank you. I have one last question. Do the panel have any views on the principle of statutory minimum sentences?

Sam Doohan: Broadly speaking, statutory minimums cause problems. The reduction of judicial discretion means that cases cease to be individual and start to be set by central Government policy. Although it can be argued either way, depending on your taste, were we to follow an American model, where if you get three strikes and then a very long prison sentence for a relatively minor crime, under the current British criminal records system that would almost certainly be disclosed for life, and it would not just be a fairly stiff sentence for repeat offending; it would become a life sentence immediately. That is something always to be aware of when thinking about where we set not just sentencing guidelines, but sentencing minimums in particular. If the judge thinks that six months is appropriate, we should not be the ones to argue with that.

Campbell Robb: We agree that judicial discretion is paramount. We think that is a very, very important consideration. For any changes, it is important to be aware of that and to have an urgent space to see what impact those minimum sentences are having across the piece, in terms of numbers, time and then rehabilitation.

[The Chair]

I thank our three witnesses for a very strong performance and for answering the questions so fully—it is much appreciated.

Examination of witnesses

Dame Vera Baird, QC, gave evidence.

--- Later in debate ---

[Alex Cunningham]

Thank you very much for that. I think you have covered everything that I needed to cover.

[The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)]

Q Dame Vera, I want to roll back and put this set of clauses in context. Everybody acknowledges that there is a significant problem with the trust of victims of sexual violence in particular when it comes to the seizing of phones and digital evidence. There have been recent cases that we have heard about. In consequence, the Government have an ongoing end-to-end rape review, which is looking at every single stage of the criminal justice system. Following the last question, I would not for a moment want colleagues to think that this Bill is the Government’s answer to addressing the real and keenly felt concerns of rape victims and other victims of sexual violence.

On the point about digital divides, do you accept that there is a need to clarify the law on this? At the moment, we have the Criminal Procedure and Investigations Act 1996 and we have the Attorney General’s new guidelines, but presumably you accept that there is a need to set a framework in law in order to help and protect victims, and to protect the right of a free trial under article 6 of the Human Rights Act 1998?

Dame Vera Baird: I think national legislation to clarify the law about this is imperative, but it is just not this national legislation.

[Victoria Atkins]

Q Okay. Within that context, we have to bear in mind the Criminal Procedure and Investigations Act 1996 and the Data Protection Act 2018. Do you accept that?

Dame Vera Baird: Yes, of course we have to do so. I am not sure you will be doing that with this power. I think there is a real human rights challenge here already, and I am pretty satisfied that there will be data protection challenges too. Yes, of course data protection is the law and it is important. I do not think this fulfils all your obligations under that either.

[Victoria Atkins]

Q All right. Clause 36(5)(a) sets out the conditions under which the power may be exercised—namely, that an “authorised person”, as defined elsewhere in the Bill, must reasonably believes

“that information stored on the electronic device is relevant to a purpose within subsection (2)”.

That wording of course comes from the 1996 Act, doesn’t it?

Dame Vera Baird: I do not know which it comes from, but “relevant” is no good, Minister. “Relevant” is not a reasonable line of inquiry. Somebody who comes across the letter from the lady in Northumbria might think that is relevant. I do not think that finding it is a reasonable line of inquiry. A reasonable line of inquiry in the CPIA is the right test, and this is the wrong test.

[Victoria Atkins]

Q All right, but do you accept that there is a test of relevance in terms of disclosure under the 1996 Act?

Dame Vera Baird: There is a test of a reasonable line of inquiry under the CPIA. That is the test, and that is very much a narrower test than the one in the proposed clauses. I have to say, because we narrowed it from relevance down to a reasonable line of inquiry in our amendments, the police were happy to accept that, so I am not sure why the Home Office wants it to be wider than the police want it to be.

[Victoria Atkins]

Q I will come back to that. The test in clause 36(5)(b) is that the authorised person must be

“satisfied that exercise of the power is necessary and proportionate”.

Again, that wording applies across the board in terms of criminal proceedings. Is that correct?

Dame Vera Baird: I have come across the terminology before, but it is highly subjective. Insufficient detail is gone into for it to have the meaning that it is important to have. I think it is a very good thing, if I may say so, Minister, that you have accepted that the backdrop against which we approach these clauses is a very, very undesirable one, where confidence has been lost by over-demands on vulnerable complainants’ personal data. It is hugely important therefore to put into the legislation every protection that can be put in, for fairness. Remember, there is a massive power imbalance in the relationship at the time of the requests—

[Victoria Atkins]

Q I have long accepted that, Dame Vera. That is why we have the end-to-end rape review, which is ongoing, as you know. The reason I ask that is because one would not want the Committee to think that these clauses are the only measures being taken to secure the framework for extraction of digital devices. You will accept that the clauses set out that a statutory code of practice will accompany the Bill.

The codes of practice under the Police and Criminal Evidence Act 1984, for example, are vital codes of practice that are relied on in court. If a police officer does not meet the standards expected by that code when interviewing suspects, for example—if there is a significant breach—the entire prosecution can fall. Do you accept that although we are rightly looking at the wording of the clauses, just focusing on those would not give the full picture? We also need to consider the importance that the code of practice will have. It will deal with some of the practice points that you have raised.

Dame Vera Baird: I do not think it is the right analogy to compare any code of practice. Let me tell you, the code of practice under this is invisible or non-existent. Codes of practice are discussed though they are the answer to it all. The first thing to say is that they do not have the power of statute, and if the legislation goes through as it is now, that is what the police will likely rely on. Of course a statutory code of practice under PACE has the consequences that you described, Minister, but that is because if you break the code of practice under PACE, it impacts on the defendant. The defendant can say, “Oh, that’s been done unfairly and jeopardised my fair trial,” and a breach can even be the end of a prosecution. There is absolutely no power for a rape complainant to have a similar resolution of a breach of any code of practice in this legislation. They can breach the codes of practice until they are blue in the face, and it does not make any difference to the trial.

[Victoria Atkins]

But you accept—

Dame Vera Baird: That is a difference in power, is it not? That is an important point.

[Victoria Atkins]

Q No, it is a proper analogy, because they are both statutory codes of practice. Of course the police will have to abide by those codes of practice and will be held to account by the Victims’ Commissioner and others if they are seen to be failing those codes.

Dame Vera Baird: I am sure you accept the difference, though, Minister—

[Victoria Atkins]

No—

Dame Vera Baird: There is no possible remedy or solution for the complainant that is analogous to the outright acquittal that can be a consequence of breaching the PACE code of practice, because that is about a defendant. This is about a complainant. What do you suggest would be the solution if the code of practice were breached in my case of rape and too much documentation was taken and disclosed? What is my remedy?

[Victoria Atkins]

Q The police force or the CPS are accountable for their conduct under the codes of practice. That is why the code of practice is in the Bill, not least because putting the sort of detail you seem to be suggesting in the Bill is not as responsive and flexible as putting it into a code of practice—by definition, changing primary legislation is not as responsive or flexible. These clauses are not the only factors to bear in mind when looking at the overall issue of digital devices. I will move on—

Dame Vera Baird: I would like to answer that, if I can. They are the only thing, because there is no sign of a code of practice. There is no draft code of practice at all. When I ask what my remedy would be as a rape complainant, you say to me that the police will be accountable, but how will they be accountable? It is not a crime and it is not a tort to break this code of practice, so what is the remedy if it is broken? It is not an analogy with the PACE code of practice. Do not over-rely on this code of practice, Minister. You and I share the aim of protecting complainants. Do not over-rely on a code of practice no one has ever seen and that does not have statutory form.

[Victoria Atkins]

Q This will not be operating in a vacuum. The police are of course accountable to police and crime commissioners, as you know as a former commissioner. The police are also accountable to Her Majesty’s inspectorate of constabulary, and the police forces have their individual complaint processes. There are ways of accountability. I will move on—

Dame Vera Baird: If those routes really do exist, have they been working, Minister? I do not remember any complainant being able to come to me as a PCC and complain about an individual case. Let’s face it: the dire situation where the public, or at least this sector of them, have lost confidence in the police has occurred at the time when all of those bodies that can call them to account have been in play, and they have not called them to account.

[Victoria Atkins]

Q There are many aspects to public confidence, but that is why we are addressing this one aspect of it in the Bill as part of the Government’s overall work on the rape review and, as you said yourself, the victims law.

I will move on to unauthorised encampments. You were asked about the impact and you fairly conceded that residents can be victims in the context of unauthorised encampments. Clause 61 sets out the offence. The conditions that are laid down for the alleged commission of an offence include factors such as “significant damage”, “significant disruption” and “significant distress”. With your focus on antisocial behaviour, presumably you welcome the focus on those unauthorised encampments that result in those sorts of distressing conditions?

Dame Vera Baird: I would not want anyone to suffer from any of those, but causing damage—I do not know what that is. If you are on an unauthorised encampment and you have not got a lavatory so you dig a latrine, is that causing damage to the field? I think it depends how it is defined. I really cannot go much further than saying that unless there is proper provision of authorised encampments, you have two sets of victims. I quite agree with you that the people who are distressed, damaged or whatever by an unauthorised encampment are victims of that. There is no doubt of it—you have made your point—but I want you to take into account the difficulty of finding somewhere to camp in a lot of places, which forces people into an unlawful place. Of course, damage is not justifiable, but that is a factor to consider. I was so pleased when the NPCC appreciated that as well.

[Victoria Atkins]

So do you see it as inevitable—

[The Chair]

Order. I am afraid that brings us to the end of the time allotted for the Committee to ask questions. I thank the witness again for her evidence.