Anti-social Behaviour, Crime and Policing Bill
(10 years, 9 months ago)
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Baroness Hamwee
Baroness Hamwee (LD)
My Lords, I will also speak to Amendment 9. I thought that after the previous debate on the Bill I would be faced with saying, “Follow that”, but lunch overtook us. However, it is in fact a question of “Follow that”.
Amendment 6 would alter the definition of “force” in the new provision. Noble Lords might wonder why I am worrying about that. In fact, I propose that the definition be the same as the definition in Section 63A(6) of the Family Law Act 1996—in other words, the definition for the forced marriage protection order. I had wondered why different definitions were used in the Bill and existing legislation.
I wonder that even more after the previous debate on the Bill. The noble and learned Baroness, Lady Scotland, referred to psychological means of coercion which are not referred to in the Bill but are referred to in the 1996 statute. She talked about emotional blackmail which might be exerted by members of the very observant part of the Jewish community.
My noble friend Lord Ahmad certainly used the term “psychology”. If there are intentional differences between the grounds for the two different offences—as we are calling both of them—then the Committee ought to be clear that that is intended. If it is not intended that there are differences, then, again, the Committee should be clear that that is the case.
The noble and learned Baroness, Lady Scotland, talked about “emotional blackmail”; I would include that with the term “psychological coercion”. There may be quite porous demarcation lines in attitudes and the way in which one deals with one’s children. However, trying to stand back and look at it objectively, given the emotional blackmail which she described, from what we have heard from other noble Lords and what we know from our own experience, psychological means should not simply be left aside without noble Lords addressing their minds to them.
My Amendment 9 is much more straightforward. Its purpose is merely to obtain confirmation that a habitual residence—“habitually” is the term used in the Bill—is as it is understood under the Hague convention and the case law which has developed from that. It is obviously not defined within the Bill. I believe that it is used elsewhere in legislation, although I have not been able to find it myself—although I found myself going down different byways of reading, looking at reports of cases on the internet. However, if my noble friend could confirm that, I would be grateful. I beg to move.
Lord Ahmad of Wimbledon (Con)
My Lords, I am grateful to my noble friend Lady Hamwee for explaining her Amendments 6 and 9 to Clause 108. It is important that we get the definitions of the new offences right and I welcome this opportunity to explore them in more detail.
Amendment 6 would amend the definition of a forced marriage. Clause 108 defines it as including the use of,
“violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage”.
My noble friend Lady Hamwee proposes that this should be replaced with alternative wording that, as she explains, would mirror the language used in the Family Law Act 1996 in relation to forced marriage protection orders.
The main difference between the two formulations is that the amendment refers to “psychological means”, while Clause 108 refers to,
“any other form of coercion”.
This is intended to make it very clear that the offence recognises the different types of pressure that can be put on victims. Victims are continually faced with different types of pressure in the course of being forced into marriage, including physical, emotional, financial and sexual pressures. It is therefore right that the definition of the offence should fully cover all of the behaviours that could be employed by the perpetrators of this absolutely horrendous practice. That is what Clause 108 does. On that basis, therefore, I do not believe my noble friend’s Amendment 6 to be necessary.
My noble friend’s Amendment 9, as she has explained, is designed to probe the meaning of the word “habitually” as used in Clause 108(5)(b). The clause provides that an offence is committed outside the United Kingdom if either the victim or perpetrator is a UK national or “habitually resident” in England or Wales. This means that the new law will apply, for example, in a situation where someone who lives in England or Wales is taken abroad in order to be forced into a marriage.
The term “habitual residence” simply means the ordinary residence of a person. As my noble friend alluded to, in fact, the term was introduced into English law from the conventions under the Hague Conference on Private International Law, where it was developed due to the perceived problems with establishing the domicile of some persons, in particular children. The term is commonly used in legislation without further definition and I am satisfied that that is the correct approach to adopt here. Based on those clarifications and explanations, I hope that my noble friend will be minded to withdraw her amendment.
Baroness Hamwee
My Lords, I will probe the first one a little further. Of course I agree with my noble friend that we have to cover every situation, or as he said, “every type of pressure”. However, as regards the definition, is there a distinction between the provision in the Bill and the provision in the 1996 Act? If there are differences, can we know them? He has not addressed that point. If they are the same, can we know that?
Lord Ahmad of Wimbledon
My Lords, as I said about the language to which my noble friend alluded, Clause 108 has been drafted to ensure that it clearly covers the wider range of factual scenarios that exist in forced marriage cases. That addresses why there is a difference between Clause 108 and Section 63A. Clause 108 is intended to be all-encompassing.
Baroness Hamwee
My Lords, that begs the question of whether the 1996 Act is not all encompassing. I do not want to make life more uncomfortable this afternoon—I stress this afternoon—for my noble friend, but would he be able to write to me about that, following today’s Committee proceedings? This looks like a lawyer’s point, but it is a very real one. We have already talked today and will continue to talk about the choice between the two routes. Of course, one of the factors in the choice will be if the definitions are different, and therefore if the criteria for choosing one route are not the same as the criteria for choosing the other. I gave notice to my noble friend—although probably not directly to him—of the points that I wanted to raise on these two amendments. I will not tease him about the fact that he has not told us which other legislation the term “habitually resident” is in. However, that is probably enough from me for now, and I beg leave to withdraw Amendment 6.
Baroness Thornton
“( ) A person also commits an offence under the law of England and Wales if he or she causes another person to enter into a marriage and that other person lacks the capacity to consent to that marriage.”
Baroness Thornton
My Lords, this amendment, in my name and those of my noble friend Lady Smith and the noble Baroness, Lady Hussein-Ece, seeks to test whether the Bill adequately covers the issue of capacity; in other words, the capacity of a vulnerable adult who may be forced into a marriage. Almost by definition, they are very often not in a position to give free or full consent to a marriage, or otherwise. We are looking at Clause 108(1)(a) and (b). Paragraph (a) says,
“A person commits an offence … if he or she … uses violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage, and”,
paragraph (b) continues,
“believes, or ought reasonably to believe, that the conduct may cause the other person to enter into the marriage without free and full consent”.
Both those points assume that the person has capacity either to resist or to consent to a marriage. Of course, we know that a proportion of the cases dealt with by the Forced Marriage Unit concern people who have not given consent to a marriage. An article published in the Guardian in August which quoted the Forced Marriage Unit said that,
“The government dealt with 114 cases of forced marriage last year that involved mentally disabled people”.
However, the Forced Marriage Unit recognises and admits that that is probably only the tip of an iceberg and does not reflect the full scale of the abuse. I think that everybody would agree that we should be concerned that disabled or mentally disabled people are protected in this legislation and do not suffer forced marriage.
My second question, which is linked to but is not only about capacity, is: how can marriages be voided in these circumstances? When is a forced marriage voidable? How does it go forward and, in particular, if there is no capacity to agree to the marriage, how can it be ended? In recent times there was a judgment in which the courts decided not to end the forced marriage of somebody who they admitted lacked capacity. That has troubled many people who are concerned about this area. That is the issue we would like to probe, and I would like to know whether the Government have taken that into consideration. I beg to move.
Baroness Hussein-Ece (LD)
My Lords, I also put my name to this amendment because this is a matter that needs clarification and warrants a bit of debate. As the noble Baroness, Lady Thornton, said, there have been a number of these cases. I read the same article that she quoted, on the 114 cases that the Government had dealt with, with some concern. In August there was the case of a woman from a Sikh background who was married to a man who had mental disabilities. He did not annul the marriage because she pleaded that that would cause her stigma. It seems that the interests of the man—who was the victim in that case—were not taken into full consideration, and that needs to be looked at. If this amendment were agreed, would that mean that these sorts of cases could be declared void because people did not have the capacity to enter into marriage?
There was an article in the Times last week about another case concerning a girl of 14. Could we argue that that girl, who was forced into a marriage at gunpoint in Pakistan, had the capacity to enter into that marriage, given that it was forced? The local authority, which has now taken her and her child into her care,
“applied to the family court to have the marriage declared void”.
However, Mr Justice Holman said that he could not do that. He accepted that the marriage was,
“‘on the balance of probability void’ under English law. However, he said that he was prevented from making a solemn declaration to that effect by a section of the Family Law Act 1986”.
I am not a lawyer but, as I read it, it does not make sense that in these types of forced marriages where people either do not have capacity because they have a mental disability or they are under age, or whatever the reason may be, they find themselves at a disadvantage when they try to get the marriage annulled and voided. We have to consider that loophole, and it must be taken into consideration.
Lord Harris of Haringey (Lab)
My Lords, I declare an interest as chair of the Freedom charity. I apologise to the Committee for not being present for the earlier part of our discussions on these topics due to a commitment at the Department of Health.
This is an important principle. If the Minister is planning to respond by saying that the issue is adequately covered either in the clauses we have before us or elsewhere in legislation, I urge him to think again before giving the Committee that response. It needs to be made absolutely explicit that a forced marriage is not valid where there is any question at all that the person being coerced into marriage and who has entered into it does not have capacity. That capacity may be related to age—elsewhere in our legislation there has been all sorts of discussion about capacity and age, and some of the girls concerned are of a very young age—or it may be related to learning difficulties of various sorts. We therefore need to make it absolutely explicit in the legislation that this is intended to cover those circumstances where the individual concerned does not have capacity.
Lord Ahmad of Wimbledon
My Lords, I thank the noble Baroness, Lady Thornton, for her amendment. I also thank my noble friend Lady Hussein-Ece and the noble Lord for their contributions. The noble Lord alluded to the Freedom charity, which carries out notable work in this field, and I acknowledge his work and engagement in that arena.
Marriage without consent or the capacity to consent is totally unacceptable. Clause 108 specifies that an offence is committed if the perpetrator uses coercion and believes, or ought reasonably to believe, that their conduct may cause another person to enter the marriage without free and full consent. A person who lacks capacity to enter into marriage is incapable of providing free and full consent to marriage. In the cases that have come to the attention of the Forced Marriage Unit, some form of coercion has invariably been involved in forcing a person who lacks capacity to consent to a marriage. The new offences would therefore cover this behaviour.
Although I totally understand the noble Baroness’s concerns and those of other noble Lords, the definition of the new offences in Clause 108 already captures in practice the types of cases intended to be covered by this amendment. I take on board the point that the noble Lord made about looking specifically at this issue. Certainly, between Committee and Report we will look at the issue once again in the context of Clause 108. However, I assure noble Lords that Clause 108 is intended to capture that particular element. Marriage is voidable under Section 12(c) of the Matrimonial Causes Act 1973 on the grounds that,
“either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise”.
The issue was also raised of a vulnerable person getting a decree of nullity. The procedure to do so is available and a person can apply for a decree of nullity by filing a petition at any time after the marriage ceremony. If the application is not opposed, there is unlikely to be a court hearing and the person will not have to attend court. Following the petition, the court will issue a decree nisi and, following this, the applicant can apply for a decree absolute. The Family Procedure Rules make provision to ensure that these matters are straightforward for unrepresented applicants. However, having said all that, I fully acknowledge the points made by noble Lords about the special circumstances that they have mentioned. Having explained the scope of Clause 108, I hope that the noble Baroness is minded to withdraw her amendment.
Baroness Thornton
I thank the noble Lord for that explanation, which was a good attempt to describe the position. However, I am not convinced that capacity is covered in the Bill. Therefore, I will ask a lawyer what they think. Depending on what they think, and perhaps after further discussions with the Bill team, we shall see whether we need to return to this at a later stage. I beg leave to withdraw the amendment.
“( ) A person commits an offence under the law of England and Wales if he or she—
(a) is the parent or guardian of a child, and(b) gives consent for that child to marry before the age of 18.”
Lord Rea (Lab)
My Lords, I am moving this amendment because the noble Baroness, Lady Tonge, is in Addis Ababa attending a conference on women’s health in Africa. I wish to speak also to Amendment 12, which would apply the relevant law to Scotland. Amendments 8 and 12 in this group are small and in some ways run parallel to the amendments on forced marriage we have discussed. However, if accepted, they could transform the lives of many vulnerable 16 and 17 year-old girls.
These amendments arise from the findings of a report published last year entitled A Childhood Lost by the All-Party Parliamentary Group on Population, Development and Reproductive Health, of which the noble Baroness, Lady Tonge, is chair and I am a committee member. The report looks into the effects of child marriage in the UK and overseas and is based on a parliamentary hearing held to gather evidence on child marriage—its causes, consequences and ways to reduce or combat it.
Evidence came from a range of experts, including survivors of child marriage, representatives from UN and government agencies, academics, doctors and NGOs. Our witnesses testified that child marriage had many undesirable consequences. I will not run through the whole gamut but will give a few examples of those. It is associated with violence, rape and sexual abuse, resulting in emotional and psychological problems, desertion and divorce. It takes away opportunities for education—that is perhaps the most important consequence—undermines self-confidence and reaffirms gender stereotypes. It is associated with, and helps perpetuate, harmful traditional practices, including female genital mutilation and contributes to infant mortality and poor child development. There are more consequences. UNICEF says in its report The State of the World’s Children that an infant born to a mother under the age of 18 is 60% more likely to die in its first year of life than one born to a mother over the age of 19. Research from the International Centre for Research on Women found that girls who marry before the age of 18 are more likely to experience domestic violence and depression than those who marry later.
As many noble Lords have said, child marriage is a major problem in the developing world and we are increasingly seeing it here. In England and Wales, marriage under 16 is illegal, but between 16 and 18 it is permitted, providing there is parental consent, which is not required in Scotland. In some cultures, child marriage is virtually the norm and parents are likely not only to give consent, but to force marriage on girls who may not wish to marry yet go along with it. We heard earlier, from the noble and learned Baroness, Lady Scotland, and the noble Baroness, Lady Hamwee, about emotional blackmail. A major problem which has not been mentioned is that, as with female genital mutilation, girls are taken outside the UK to get married. This amendment does not cover extraterritorial marriage but, as with FGM, we hope that a way can be found to make this illegal.
I would be grateful if the noble Lord could put his mind to this. We would be grateful if the amendment could be adapted, before Report, to include extraterritorial child marriage or if the Government brought something forward. I will not press the amendment at this stage, but would welcome discussions with the Minister about this issue between now and Report. Meanwhile, I beg to move.
Lord Beecham (Lab)
My Lords, I have every respect for my noble friend and appreciate the genuineness of his concerns, but I am not persuaded—and neither is the Opposition—that it is appropriate to change the age at which people can be married from the current age of 16, with the condition, to which my noble friend has already referred, of parental consent. We have to recognise that 16 year-olds and above are increasingly sexually active. They can serve in the Armed Forces. Many people, including me, feel that they should have the vote at 16; indeed, they will do so in the Scottish referendum next year.
I accept the legitimacy of the concerns cited by my noble friend. However, the number who might be involved in marriage from 16 to 18 is not clear—or, at least, the evidence is not before us—let alone the number who are adversely affected in the way that my noble friend described. It is a large step to alter, on the basis of what we have heard, what has been the law for some considerable time. This is quite different from matters such as female genital mutilation and the forced marriage issues which we have discussed fully today. The Opposition will not, therefore, support this amendment if it is brought forward again on Report.
Lord Ahmad of Wimbledon
My Lords, I am grateful to the noble Lord for introducing this amendment on behalf of my noble friend Lady Tonge and for explaining that the rationale for it is, in effect, to raise the age of marriage to 18 years. I also thank the noble Lord, Lord Beecham, for his comments. This is one of those occasions when the two Front Benches are at one which people sometimes smile about.
Lord Ahmad of Wimbledon
I shall merely rise to reply, not rise to the challenge.
As noble Lords know, in England and Wales it is possible to marry from the age of 16, with parental consent, and from 18 without consent. The consequence of Amendment 8 would therefore be to make it impossible for a 16 or 17-year old to marry. While I understand my noble friend’s concerns, I do not believe this amendment is necessary because the law already provides adequate safeguards for children entering into marriages.
In England and Wales the provisions for the age at which a child can marry are contained in the Marriage Act 1949 and the Matrimonial Causes Act 1973. Section 2 of the Marriage Act 1949 and Section 11 of the Matrimonial Causes Act 1973 provide that any marriage, whether civil or religious, conducted in England and Wales, where either party is under the age of 16, would not be a valid marriage. If a marriage is solemnized and either or both of the parties is under the age of 16 that marriage will be void. For a child aged 16 or 17 to marry, the law requires the consent of the child’s parents or guardians, unless the child is a widow or a widower. These provisions recognise that, while children of this age may have the maturity to enter into marriages, it is still necessary to ensure that they are afforded some level of protection in doing so.
The Government believe that the current provisions provide appropriate safeguards for children entering into marriages. We therefore do not consider it necessary to amend the age at which people can enter into a marriage. The noble Lord has referred to the UN Convention on the Rights of the Child but the convention does not address the issue of marriage. Accordingly the law relating to marriage, including the age at which a person can consent to marriage and can marry, is a matter for determination by the national law of those states, including the United Kingdom, that are a party to the convention.
My noble friend Lady Tonge is also understandably concerned, as we all are, about forced marriages. While I share her desire to do more to stamp out this abuse, the amendments as tabled are not the best way of doing this. We have just debated provisions to strengthen the law in respect of forced marriage, thereby making it a criminal offence to breach a forced marriage protection order and making it an offence to seek to force someone to marry. This is combined with a significant nationwide engagement programme and the work done by the Government’s Forced Marriage Unit to give direct support to victims and potential victims.
Amendment 12 to Clause 109 seeks to make identical provision in the case of Scotland. Marriage law is a devolved issue and Scotland has its own marriage laws. I therefore cannot comment on behalf of the Scottish Government. The noble Lord will be aware of the convention that the United Kingdom Parliament does not legislate on devolved matters in Scotland without the consent of the Scottish Parliament.
I take on board the noble Lord’s point about further discussions between stages of the Bill. I am always open to discussions on all these matters. As I said earlier, this is an important matter and this is about getting it right. If the noble Lord or my noble friend wishes to meet me I shall be delighted to do so. Based on that explanation, I hope that the noble Lord will be prepared to withdraw his amendment.
Baroness Berridge
“( ) If an offence has been committed under subsection (1) or (2) in relation to any marriage (as defined in subsection (3) and whether conducted in England and Wales or elsewhere), then that marriage shall be treated for the purposes of the Matrimonial Causes Act 1973 as if the marriage was valid but annulled on the date that the offender was first charged with the offence.”
Baroness Berridge (Con)
My Lords, this amendment relates to Clause 108. For the purposes of the new criminal offence of forced marriage, the Bill has adopted the definition of marriage found in the Forced Marriage (Civil Protection) Act, which states that.
“‘marriage’” means any religious or civil ceremony of marriage (whether or not legally binding)”.
At first glance this seems to be a sensible definition as it is clear that some marriages, although not valid in our law, have such community, cultural or religious significance that the couple behave as if they are legally married. Forcing someone into such a de facto marriage should also be a criminal offence. Consenting to such a marriage is fine; forcing someone is not.
No one underestimates the variety and complexity of situations that lead people to find themselves in forced marriages. A cursory glance at the case law reveals that children are sometimes subjected to such marriages by their parents, and the law needs to be flexible in its remedies. Under Clause 108(3), let us imagine that a woman takes a brave step to come forward to complain about a forced marriage in a religious ceremony which is not, as the Bill envisages, valid in UK law. She may take that step after many years of marriage and it will take enormous courage. She will almost certainly have to testify in court against her so-called husband and perhaps other community or religious leaders. This may affect her acceptance within her community. Her husband and others may be convicted and sent to prison.
Of course, this woman may need supporting financially and there may be family assets such as a car, a pension, a business, inherited wealth and most probably a home. However, they could all be in the legal name of the husband, who is in prison. Ordinarily the woman seeks a divorce or an annulment, and in both types of proceedings the courts have wide-ranging powers to transfer or split the family assets—but herein lies the problem: this forced religious marriage cannot be annulled and cannot be the subject of divorce proceedings. It is not viewed in law by the family courts as a marriage; it has been inelegantly described as a “non-marriage”. Without the legal means to get an annulment or divorce, the woman cannot put in a proper claim for the family assets. In those circumstances she will most likely be making a claim for benefits, supported by the UK taxpayer instead of by any family assets. I also shudder to think of what she may feel like if after a few years in prison her so-called husband comes back to the community and waltzes back into the family home with all the assets. I very much doubt whether any other women will come forward and take such risks if, on top of everything else, by doing so they make themselves financially destitute, with recourse only to the benefits system. Without giving her the remedy of an annulment, which is what the amendment gives her, there may be a grave injustice.
Conversely, if a person is forced into a marriage that is valid under UK law the marriage is void and can be annulled, and the family assets divided up. The Bill therefore currently gives rise to the different treatment of women forced into a marriage that is not recognised in our law, as opposed to women forced into what would otherwise be a valid marriage. There is extensive human rights case law on such differential treatment. I should therefore be grateful if the Minister can outline, if he does not accept the amendment, what reasonable and objective justification the Government have for such differential treatment of women in analogous situations. In the absence of any such justification, the law should be amended to give women the option of petitioning for an annulment. A woman will not be required to do so, and there may be cases where it is not appropriate, but the law should give her the option. This legal definition of marriage has not previously been an issue under the civil protection order regime, as that was aimed at preventing such a marriage, as the name indicates. As the law is now dealing with criminalising a forced marriage that has occurred, obviously the remedies when that marriage ends—namely, divorce or annulment—have now become relevant. If religious marriage is recognised for the purpose of a civil protection order regime and now criminal law, should it not be recognised for the purpose of family law?
This amendment has been drafted narrowly, but we will need to ensure that it does not inadvertently give financial remedies to cohabitees. I was made aware of the general issue of religious marriages during the presentation of evidence from excellent women’s rights groups to the Joint Committee on Human Rights, which said that many women, even when they consent to the marriage, are not aware that the ceremony is not valid in UK law. In some cases they discover this only when, after many years of marriage, the husband says three times that he divorces them and walks out. Literally, the first person to explain the situation to her is a divorce solicitor, who says that he cannot help her as she is in a non-marriage. Coincidentally, I was visited this morning by Dr Siddiqui, from the British Muslims for Secular Democracy organisation, who said that the situation that there may be family assets after many years of marriage can, indeed, occur.
I would be grateful to know the Government’s view on this amendment, which I believe solves an obvious injustice, and whether the Government are going to grasp the issue of non-legally binding marriages, which is causing so much harm, and look at the matter comprehensively. The Government need to take a step back. Once a different definition of marriage has crept into our law, there can be many inadvertent consequences. They need to consider different solutions, such as making the provision of a civil marriage certificate a requirement before any person conducts a religious ceremony. Such an inquiry could also look at whether the basic legal requirements of how to be married under UK law need to be part of citizenship teaching, especially given the popular trend of travelling to sunnier climes for wedding ceremonies. I fear this is not common enough knowledge; your Lordships may remember that Mick Jagger and Jerry Hall had to get an annulment as they were not married under UK law. I beg to move.
Baroness Cox (CB)
My Lords, before I speak to Amendment 13, grouped with this amendment, I apologise for missing Second Reading as I was in South Sudan, where it was rather difficult to engage with parliamentary business here. I understand that a primary goal of the forced marriage provisions of the Bill is to increase the protection of victims of honour-based abuse while bringing perpetrators to justice. As noble Lords may be aware, this is also the primary concern of my Private Member’s Bill, the Arbitration and Mediation Services (Equality) Bill, which seeks to ensure that all citizens resident under the jurisdiction of England and Wales have equal access to the law, and to increase protection for those who suffer abuse and gender discrimination. One of the concerns underlying the reason for that Bill could be addressed by this amendment, which would make it an offence to solemnise a marriage in England and Wales according to the rites of any religion or belief in circumstances where the marriage is not also solemnised as a legal marriage under the terms of the Marriage Act 1949 if either or both parties to the marriage wrongly believe that they are married according to the law simply because they have been through a religious ceremony.
The amendment would tackle the problem that arises in some communities where those getting married, particularly women who are not familiar with English law or the customs of this country, undergo a religious marriage without understanding that they are not married according to English law. They are therefore unaware that they are without any legal protection. I think there are parallels here with the amendment just moved by the noble Baroness, Lady Berridge.
In most cases, religious celebrants would not need to be concerned about committing the offence created by the amendment. They would not need to act any differently. Most marriages solemnised by religious celebrants are in registered buildings under the terms of the Marriage Act 1949. They are legal marriages. Under the Marriage Act 1949, a couple who have already entered into a civil marriage may go through a religious marriage ceremony after giving notice to a minister of religion, and on the production of a certificate of their marriage before the superintendent registrar.
Therefore, in circumstances when no certificate is provided, ministers of religion should already be on notice that a couple may not be married legally. In those situations when they are not sure that the parties properly understand the status of a religious ceremony, they may choose to say something about this publicly during the religious ceremony to ensure that there is no doubt, or they could choose to obtain a written declaration of understanding from the couple before proceeding with a marriage service. How they go about that procedure is a matter for them and the amendment does not seek to prescribe any particular means. What matters is that when there is some doubt as to the understanding of the parties, my amendment would effectively require celebrants to ensure that the couple they are marrying only according to religious rites are fully aware of the status of the ceremony and its implications.
Lord Hope of Craighead (CB)
My Lords, I had not intended to say anything about this amendment, but two points occurred to me in listening to the noble Baroness, Lady Berridge, which I mention in case they might be of any assistance to the Minister in looking into the matter. First, I should have thought that it would be plain that if the individual is not capable of entering into a marriage at all, because he or she was underage or simply did not have the mental capacity to agree, one could not treat that as a valid marriage for the time being until it was annulled. There may be something to be said for some categories which are not in that very stark situation; where there was initially the capacity to marry, but there has been enforcement or something like that which has persuaded the individual to enter into it. It is rather as in the law of contract: there are some contracts which are void ab initio and some which are voidable. There may be room for that distinction: no doubt the Minister will wish to research that further.
Secondly, when I was at the Bar in my junior days I used to do cases in Scotland which were described as “nullity of marriage cases”. The ground of nullity in those cases was lack of capacity to consummate the marriage. An individual who found that the husband or wife could not consummate the marriage was entitled to come to court and if that fact could be proved—it was very often not disputed, which was just as well—the marriage would be set aside. I do not know how the law is in England, but there must be a similar process where the marriage cannot be consummated. It may be that those cases are precisely in the category that Amendment 11 is talking about, where somebody has a choice. An individual who finds that the marriage cannot be consummated may feel that the marriage should go ahead for other reasons—simply because they enjoy living with each other. Nobody forces them to apply to the court to have the marriage set aside. It may be that there is an analogy there which can be drawn upon, to follow up the point that the noble Baroness is making.
Baroness Thornton
The noble Baronesses, Lady Berridge and Lady Cox, have raised very valid but different points. The issues to do with property and assets and differential treatment are very valid indeed, particularly with regard to Amendment 11. I look forward to hearing what the Minister has to say because these issues need to be addressed.
Lord Ahmad of Wimbledon
My Lords, I thank my noble friend Lady Berridge and the noble Baroness, Lady Cox, for raising these important issues, which I shall address in turn. As both noble Baronesses will know, I take this issue very seriously: it needs to be addressed and the issues that have been raised are perfectly valid, as the noble Baroness, Lady Thornton, has said. I also thank the noble and learned Lord, Lord Hope of Craighead, for his contribution. He has raised one or two matters which I shall certainly take back to officials to discuss further.
As my noble friend has explained, it is crucial for victims of forced marriage to be able to ensure that the marriage that they have been forced into is subsequently rendered void as a matter of law. While I agree that this is important, especially to the victims of this crime who rightly want clarity on where the marriage stands in the eyes of the law, there are reasons why the Government feel that this amendment is unnecessary. Under the current law, if a forced marriage takes place, victims can apply to the court to end the marriage by divorce or annulment. If a victim wishes to apply for an annulment, it must be shown that the marriage was either void or voidable. The grounds on which a marriage is void or voidable are set out in the Matrimonial Causes Act 1973.
A forced marriage is voidable by virtue of Section 12(c) of the 1973 Act, which provides that a marriage will be voidable on the grounds,
“that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise”.
If a victim wishes to apply to the court for an annulment on these grounds, and the court grants the decree of nullity, the annulment will take effect on the date on which the decree of nullity is issued. This amendment would mean that if a conviction for an offence of forced marriage occurred, the court would be required to issue a decree of nullity. The date on which that decree of nullity would take effect would be the date on which the perpetrator was first charged with the offence. I understand totally the sentiments behind the amendment tabled by my noble friend, but I do not agree that the process by which a victim can seek to end a forced marriage, and the date on which that marriage ends, should be determined by reference to whether a conviction for forced marriage has taken place. Such an approach provides no flexibility for victims whose perpetrators are convicted of an offence of forced marriage to choose how they wish to end their marriage. It would also be unfair to those victims whose perpetrators are not found guilty of the offence of forced marriage, and who would have to continue to rely on the current law to end their marriage.
Victims of forced marriage experience a range of specific extenuating factors, as a consequence of which they may wish to have a divorce rather than an annulment. For example, there may be children involved, as my noble friend pointed out, and property rights to consider. As a result, they may prefer a specific legal route to end their marriage. Preserving a victim’s choice is the intention behind the Government’s proposals. We are seeking to provide flexibility to victims who, on seeking legal advice, can end their marriage as and when they see fit. I hope that, having heard this explanation, my noble friend is reassured about where the Government currently stand on this issue.
Perhaps I may now turn to religious marriages, the issue focused on by the noble Baroness, Lady Cox. I pay tribute to her because I know that she represents women’s interests very widely and that this is an issue on which she does not seek to target any particular faith or community. However, she recognises fully that many, if not all faiths, protect such marriages. Unfortunately, it is the case that some of the practices do not live up to the theology. As the noble Baroness has explained, the purpose of her proposed new clause is to create a new criminal offence, under Section 75 of the Marriage Act 1949, of solemnising a marriage according to any religion so that the couple getting married believe they are validly married when in fact the marriage is not valid under that Act. This proposed new offence clearly arises from a desire to help couples who have a religious marriage ceremony that they think is perfectly valid, but which has no legal status because the requirements of the law in England and Wales have not been complied with.
The legal position in respect of religious marriages in England and Wales is that anyone who wishes to contract a religious marriage and acquire a legal marital status has two options. They can either have a religious marriage and a separate secular civil ceremony or they can choose to solemnise their religious marriage in a place of worship registered to conduct marriages, thus removing the need for a separate civil ceremony. Where a marriage is invalid for want of the appropriate formalities or other elements, this does not necessarily leave the parties without any remedies. If the marriage purports to be in accordance with the provisions of the Marriage Act but does not fully comply with those provisions, it may be void under Section 11(a) of Matrimonial Causes Act 1973. This section enables a party to the marriage to apply to the court for a decree of nullity and the court is able to make orders in respect of children and the division of property in the same way as on divorce. We believe that this will provide protection for some of the couples whom the noble Baroness seeks to protect with her amendment.
The Government accept that there will be some religious marriages to which Section 11(a) will not apply. In such cases, the courts may be able to view the marriage as being valid in principle and, as such, susceptible to a decree of nullity. The court will determine such issues on a case by case basis and will consider issues such as whether the ceremony or event set out or purported to be a lawful marriage, whether it bore all or enough of the hallmarks of a marriage, and whether the parties acted in good faith. If the court is not able to make such a finding, again, that does not mean that the spouse will be left without any form of redress. For example, it would still be possible for the court to make an order for financial relief in respect of any children under Schedule 1 to the Children Act 1989. While the Government are keen to ensure that any person who enters into a purported religious marriage in good faith has adequate protection before the law, we do not consider that making the solemnisation of purported religious marriages a criminal offence is the correct way forward. This would, in our view, involve unjustified interference in people’s private and religious lives.
However, the Government take these matters, as raised by the noble Baroness, Lady Cox, very seriously. Even though we may differ in how best to deal with it, the sentiments are certainly much the same. We want to ensure that couples seeking a religious marriage are aware of the need to have a civil marriage as well. If this is to be achieved, it must be with the support of religious leaders and must not be seen as an attempt to dictate to them or undermine them.
Baroness Berridge
My Lords, I am grateful to my noble friend for his outline in relation to this matter, but I believe I should join the club opened by the noble Baroness, Lady Thornton, and take yet more legal advice, having consulted, of course, the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Deech, before raising this matter. I will specifically check the section outlined in the Matrimonial Causes Act, which I think applies only to marriages already valid under UK law. With that in mind, we may be back on Report to look at this matter further. I beg leave to withdraw.
Baroness Manzoor
“Report to Parliament
The Secretary of State shall report to Parliament annually on the effectiveness of the criminalisation of forced marriage under Part 9 of this Act.”
Baroness Manzoor (LD)
My Lords, I should start by saying that I am very sorry that I was not able to speak at Second Reading. However, as I am keen to make a contribution, I hope that the Committee will excuse and indulge a new girl. My noble friend Lord Lester of Herne Hill, who has added his name to this amendment, has asked me to apologise for his being out of the country.
My noble friend Lord Lester was, of course, the author of the Forced Marriage (Civil Protection) Act 2007, which has been such a huge success in using the family courts in a sensitive way to address a serious and complicated problem that particularly affects young British Asian girls, women and boys. I pay tribute to him and other noble Lords who have worked so hard on this issue over the years.
Amendment 14 comes from the report of the Joint Committee on Human Rights on the Bill. It requires the Secretary of State to report annually on the effectiveness of the criminalisation of forced marriage. This is only right if we are to ensure that the law has been effective and to aid transparency.
Along with the JCHR, I understand the Government’s reasons for criminalising forced marriage but am concerned about whether criminalisation is a step too far and whether this is the most effective method for dealing with this issue. One needs only to look at the case of female genital mutilation to see that criminalisation is not always sufficient. As the JCHR report points out, there has not been a successful prosecution for female genital mutilation in 28 years—although I take my noble friend Lady Hamwee’s point and am not quite sure what that shows. Can the Minister explain why the Government believe that the criminalisation of forced marriage will be different?
It is very important that nothing is done to undermine the effectiveness of the 2007 Act in enabling the victim to apply to the family courts to obtain a forced marriage protection order. I am concerned that if a young child knows that her parents may be criminalised as a result of such protection, she will be alarmed by the involvement of the police and the criminal courts, as well as by the publicity and the dishonour to her family that the stigma of a criminal offence will bring. Invariably, it will affect, in negative ways, not only the victim but other siblings and family members not party to the forced marriage decision. I hope the Minister can assure the Committee that the civil protection route will remain the preferred way forward and that clear guidance will be given to the CPS and the police that everything should be done to use the family courts for civil protection first and that the criminal process will be used only as a last resort.
Even if the Minister can reassure me on both those points—he has already gone a long way in this discussion to show the Government’s commitment—I believe there remains a real need to monitor the effect of criminalisation to ensure that we can evaluate the progress being made. If the Minister is minded to accept my proposal, the annual report should include, for example, the number of cases going to the family court, to allow benchmarking, the age, sex and ethnic origin of the victims, the number of cases sent to the CPS, the number of people convicted, and what financial or other aid has been given to the victim, including accommodation and legal aid to support individuals through the criminal court process. I also look forward to seeing the Government develop these ideas in their response to the JCHR. I hope that the Minister will be able to explain what steps the department will take, if it is unable to accept the proposals in my amendment for an annual report, to ensure that the effect of criminalisation is kept under review so that, if there are unintended consequences, they are identified quickly and can be dealt with.
Finally, I believe that it is important that we also look at other approaches, including working internationally, and do not just focus on criminalising the practice as the only way forward. As the Forced Marriage Unit knows well, victims can be taken to Pakistan, India or Bangladesh and coerced into so-called marriages. They may be victims of rape and bodily injury; if they do not comply, they may be victims of what are disgracefully called honour killings or of forced suicides. Tackling these issues through working with international partners is, in many ways, more important than criminalisation here in the UK, as we already have laws in place in relation to this heinous crime. I hope that the Minister can reassure me that criminalisation will form only part of our approach to tackling forced marriage, and that Ministers will continue to work internationally to put an end to the practice across the world and ensure a more joined-up approach to the criminal justice system in the UK on this issue. I beg to move.
Lord Harris of Haringey (Lab)
My Lords, the noble Baroness, Lady Manzoor, has put forward an interesting amendment. The principle behind it, that Governments ought to report to Parliament regularly on the effectiveness of pieces of legislation, is one that I am sure that we would all wish to see more widely spread. However, I have a reservation about the terms in which the amendment has been put.
The noble Baroness said that she has reservations over whether criminalisation will have the desired effect. She implied, and I believe that all of your Lordships would agree, that criminalisation is not a panacea as far as this problem is concerned; it will not solve all the issues. Therefore, I would hope that if we were to receive a report to Parliament, it would look at not just the effectiveness of criminalisation but also at the effectiveness of the totality of policies on forced marriage.
My noble friend Lady Thornton moved an amendment earlier that would have broadened the scope of this and placed obligations on various public authorities in terms of the actions that they should take. I hope that the report requested by the noble Baroness would look not just at whether criminalisation makes a difference for good or ill, but also at whether all the other activities that the Government and public agencies undertake to try to eliminate forced marriage are effective. I think that that would be very valuable in terms of taking these matters forward.
Lord Faulks (Con)
My Lords, I have little to add to what my noble friend Lady Manzoor said so expertly in moving this amendment. As a member of the JCHR, this was one of the recommendations that we made in our report.
I very much endorse what the noble Lord, Lord Harris, said. I hope that the reporting to Parliament would not just be a dry recitation of the effect of criminalisation in terms of statistics, but would go wider. I am sure that the Minister will reassure us on that. This should not be simply a formality. We are stepping into an acutely sensitive area and, although we said that we approved cautiously of the decision to criminalise forced marriage, it is a matter that must be looked at very carefully for fear that more harm may come than good.
Baroness Kennedy of The Shaws (Lab)
My Lords, I, too, support the noble Baroness in her amendment. I saw her nodding at the suggestion that any reporting back should be more comprehensive than simply reporting on the criminal aspects. There should be many other opportunities taken up by Government to press for the changes that underpin what the Government are seeking in criminalising forced marriage.
One factor that I would press upon the Government is that there should be greater discussion in families, for example about marrying close relatives, such as cousins. I used to chair the Human Genetics Commission and there was considerable sensitivity about this kind of discussion and about the implications of marriage within certain boundaries and how it perhaps increased risks for future generations. I think that when people are well informed that often changes social practices.
I also think that imams should be well informed about the ways in which the women in their congregation are disadvantaged by not having the cover of civil marriage so that they have rights that can be enforced in the courts. My clients have sometimes invoked Sharia law as being generous towards women at the ending of marriages or after death. Although that might have been the case in the past, nowadays women are more advantaged by what is available to them through the civil courts in the United Kingdom. I think that such pieces of information should be much more widely disseminated to communities where these issues arise.
Baroness Hamwee
My Lords, in the Government’s response to the JCHR, they reject the proposal for an annual report but say that they will be,
“happy to update Parliament on the progress of our work in this area in due course, including as part of the normal post-legislative scrutiny of the Act”.
That is a shame. To many parliamentarians, “in due course” means something rather longer than it does in normal language—but maybe I am too cynical.
Like other noble Lords, I think it is important that what is kept under review—that is another phrase I should avoid because it also has connotations—is far more than the narrow impact of the legislation. I have written down “prevention strategy”, “safeguarding”, “professional training”, “update on CPS strategy and outcomes”, “continuing work with stakeholders”—the list could continue. As I have said before today, I am concerned at the overreliance on girls coming forward for help. Another thing that I am sure stakeholders are very aware of is the impact on the whole family, with other family members, siblings of the child in question, being at risk if they do not support the parents’ decision. There is a range of victims as well as perpetrators in this situation, and that is another thing that we need to keep an eye on.
I hope that, having had the advocacy of a number of very effective Members of this House, the Minister can be a little more encouraging than the Government were in their response to the committee.
Lord Hylton (CB)
My Lords, earlier today we had an interesting and worthwhile debate on whether it was better to deal with forced marriages by criminal or civil sanctions. In the light of that, there is a need for reporting on the effect of this legislation. I support the intention of the amendment in the name of the noble Baroness, Lady Manzoor, although the precise wording may need to be widened.
Baroness Thornton
My Lords, I added my name to that of the noble Baroness, Lady Manzoor, on this amendment because we think that if we end up criminalising forced marriage, we need to look very carefully at how that works out. I very much agree with my noble friend Lord Harris that this should be about the totality of the work of the Forced Marriage Unit. How the Government decide to do it is not the point. It is important that these things are monitored regularly, so I think that “in due course” is probably not a satisfactory answer on this occasion.
Lord Ahmad of Wimbledon
My Lords, first, I thank my noble friend Lady Manzoor for her amendment. I welcome her to what I think is her first contribution to legislation in this Parliament. As has been demonstrated today and in her maiden speech, her contributions are always welcome and based on her great expertise and experience, of this issue in particular.
The proposed new clause would place a duty on the Secretary of State to report to Parliament annually on the effectiveness of the criminalisation of forced marriage under Part 10 of this Act. The Government are indeed happy to update Parliament on the progress of our work in this area. I hope that the various exchanges and discussions we have had, which I have certainly found very valuable, as I am sure all members of the Government and, I hope, the House have, underline the Government’s commitment to look at this issue very seriously.
Noble Lords are correct: this is not about coming back “in due course”. I say to my noble friend Lady Hamwee that I will not be saying that. What I will say is that the Government are concerned that this issue is addressed and dealt with appropriately and that the appropriate debates, discussions and questions take place as and when, but the issue remains one of Parliament. Parliament has open access here. Questions and debates can be tabled as appropriate. I do not, however, believe for a moment that an issue as important as this will be left, for us to return to at some future point. I am sure that the Government will be seeking to update Parliament regularly on work in this important area.
I will allude briefly to the issue of female genital mutilation. I accept that although a law has been enacted, prosecutions have not followed, but let me again reassure my noble friend, the Committee and the wider House that the Government take this seriously. My right honourable friend the Foreign Secretary has made this a personal priority. I will talk about it in a moment.
Once this piece of legislation receives Royal Assent, there is a period of three to five years for post-legislative scrutiny. As I have indicated, the Government accept that, on an important issue such as this, we will be returning to it earlier than that. In the case of the forced marriage provisions, the Government’s Forced Marriage Unit, through its direct work in assisting victims and those at risk of forced marriage, has the capacity and function to monitor the difference that legislation will make to victims of forced marriage. The unit, as many noble Lords will know, runs a helpline providing confidential advice and support to victims and to practitioners charged with the responsibility for safeguarding children and vulnerable adults, ensuring they are fully informed on how to handle such cases. The number of reports to the helpline has steadily increased since the unit was established in 2005. In 2012 the Forced Marriage Unit provided advice and support in almost 1,500 cases. It will regularly update Ministers on any issues identified with the new laws and make recommendations on any necessary policy changes.
My noble friend Lady Manzoor referred to the lack of prosecutions for FGM and asked whether forced marriage will be different. I would like to reassure my noble friend that we will also monitor the number of prosecutions brought, and we will want to understand the reasons why cases are either not referred to the CPS or not proceeded with by the CPS if that should prove to be the case. That said, it is important to remember that the Government’s priority in criminalising forced marriage is prevention, a sentiment I know is shared across the House. This legislation has been designed to send the clear message that forced marriage is unacceptable, it is a breach of human rights, and perpetrators will be punished.
My noble friend talked about options. We know that legislation alone is not enough to address issues, and we will endeavour to work with partners across government, with non-government organisations and other experts in the field to ensure that victims and potential victims of forced marriage are aware of the support and options available to them. As I said to my noble friend Lady Hamwee in an earlier debate, it is important that a civil remedy remains available to victims. This means that victims could choose to take a civil route or go to the police, as they can now. I reassure my noble friend that, in respect to FGM, the Government will do everything in their power to ensure that victims can come forward and their abusers face the full force of the law.
The Department of Health is working to improve the information collected by the NHS on FGM. The Home Office has recently announced it will help fund a new study into the prevalence of FGM in England and Wales. The Department for International Development has established a £35 million programme to address FGM in Africa and beyond, with the ambition to end FGM in one generation. The level of international co-operation to which my noble friend alluded is certainly working well there.
The Government have also joined forces this year with the NSPCC and the Metropolitan Police to establish a dedicated FGM helpline. But as we know, there is much more that needs to be done, which is why the Home Office is working closely with the CPS to ensure that the Government are doing everything they can to help secure a prosecution. I am greatly encouraged by the assessment of the Director of Public Prosecutions that it is only a matter of time before a perpetrator is brought to justice.
I will just pick up on one or two other issues that were raised. The noble Lord, Lord Harris of Haringey, and my noble friend Lord Faulks mentioned the importance of coming back to Parliament on this. As I have already said, the Government take this issue seriously. I hope that has come across in today’s debates. I also acknowledge the very important point made by the noble Baroness, Lady Kennedy, that education must be a major component of how we start to address some of these issues of marriages, particularly those that take place in certain communities. As for marrying into families and that continuing, my noble friend Lord Hussain talked about how clans and tribes work. He used the word “brathries”—I am not sure Hansard needs a translation, but it generally means within a brotherhood. I hope that clarifies that for the Hansard writers.
This is the last amendment in the group on forced marriage. I share my noble friend’s desire—and that of all noble Lords—to ensure that new legislation is effective. I will be happy to update the House on the progress of our work in this area. The Government would of course expect to be held to account through the usual parliamentary oversight channels.
Before I ask my noble friend to withdraw her amendment, I just say this: forced marriage is a terrible act; it is a heinous crime. Coercion in marriage has no place in our or any society. The Government seek ultimately to strengthen a victim’s access to justice. I know that is a sentiment we all subscribe to. Our country is an incredible place, one that encompasses all people, all communities and all faiths, but we must hold those who commit these crimes to account and help those who suffer as victims to ensure that they have the opportunity to take to task those who commit these crimes. On that basis, and with the explanation I have given on this issue, I hope that my noble friend will be minded to withdraw her amendment.
Baroness Manzoor
I thank my noble friend the Minister for his considered response. I know his personal commitment to this issue. I also thank the many noble Lords who took part in this debate. They have been both passionate and certainly much more eloquent than I have. I entirely agree with the observations made by the noble Lord, Lord Harris, and my noble friend Lord Faulks—noble Lords will have to forgive me as I am just getting to terms with knowing everyone’s names. I am very pleased by the Minister’s response but when he says that he will come back and report to Parliament, how often is that likely to be?
Lord Ahmad of Wimbledon
All I will say to my noble friend is that, as I have already indicated, the Government will be held to account. That is something that will be discussed through the usual channels, but my noble friend has an opportunity, as a Member of your Lordships’ House, to raise a Parliamentary Question or debate. As I said, the Government take this issue seriously. Once this becomes legislation and passes into law, as I hope it will, it is certainly an issue that the Government will return to, not least because we believe it is important to update the House. It would not be appropriate for me at this time to give a specific target date: that would be presumptuous. Nevertheless, as I said, the option is even open to my noble friend to hold the Government to account.
Baroness Manzoor
I thank my noble friend. I will, along with other noble Lords, do that. I beg leave to withdraw the amendment.
Lord Beecham
Lord Beecham
My Lords, this amendment is in my name and those of my noble friend Lady Smith and the noble Baroness, Lady O’Loan. It relates to Clause 151, dealing with compensation for miscarriages of justice where new evidence comes to light some time after—indeed, sometimes very long after—a criminal trial procedure has been concluded and the defendant convicted and sentenced, and which demonstrates beyond reasonable doubt that the conviction was unsafe. In those cases, the Criminal Justice Act 1988 requires the Secretary of State to pay compensation where the conviction has been reversed or the claimant pardoned. It should be emphasised at the outset that such cases are few and far between, with only two cases a year succeeding out of around 50 claims.
At Second Reading we heard in a compelling and powerful speech from my noble friend Lady Kennedy of The Shaws of an inquiry that she chaired into sudden death cases of infants whose mothers’ convictions were ultimately overturned. We also heard of a case in which a woman whom she represented served 11 years in prison for an arson attack that killed two people but of which it eventually transpired she was innocent. The noble Baroness, Lady O’Loan, reminded us of what might be termed the Irish cases, in which after a very long time compensation was also paid for serious miscarriages of justice.
Lord Cullen of Whitekirk (CB)
My Lords, the noble Lord, Lord Beecham, has correctly drawn attention to the ostensible reasons given by the Government for including Clause 151 in the Bill. I noted that at Second Reading the noble Lord, Lord Taylor of Holbeach, referred to the clause as the “new test”, which would be in aid of clarity and “much-needed certainty”. He added,
“we want to reduce the number of complex, expensive and generally unsuccessful legal challenges that currently arise”.—[Official Report, 29/10/13; col. 1486.]
I will make three brief comments.
First, it is perfectly clear that Clause 151 is concerned not merely with the interpretation of Section 133, as he seemed to suggest. It would exclude the type of claim which was recognised and allowed in Adams, and what was said at Second Reading simply does not address that particular step. Secondly, it seemed to be suggested that there was a current state of uncertainty in regard to the law. However, it is important to bear in mind that in Adams the Supreme Court carried out an exhaustive study of the scope of Section 133 and made a fresh analysis. Part of that was to get a final resolution of conflicting statements that had been made by judges in previous years.
Thirdly, Section 133 was intended to give effect to Article 14.6 of the covenant, which has already been referred to and which was ratified by this country in 1976. The wording of Section 133 is virtually identical to Article 14.6; apparently that was done deliberately. The Supreme Court had to consider what meaning should be given to Section 133 in the light of that article. Therefore, is it appropriate for Parliament to be invited to use its legislative supremacy to overrule the decision of the Supreme Court as to the application of such a statutory provision, and in particular to cut down its application, including on the ground of expense?
Baroness Kennedy of The Shaws
My Lords, I express my gratitude to those who have already spoken on this very important topic. To some this may seem like rather arcane law, but it is something very simple and very clear that comes down to fundamental principle. When I spoke at Second Reading, I did so with some force, because the reality of cases reminds you why law matters. When you conduct cases where there has been a miscarriage of justice, you know why it is so important that the law acts fairly to those who have suffered the consequence of miscarriage of justice. I, too, feel shocked that the Government—and it might be supported by others—seek to say that this is about saving taxpayers’ money when the sums of money involved are very small and the number of cases are few, and when we are dealing with such an important issue of principle: that is, that we in this country believe, powerfully and rightly, that a person should be presumed to be innocent unless they have been proved guilty.
When the Court of Appeal receives new evidence—and it is rare—and they decide that that new evidence casts a different light on what went before, we make assumptions that the person is therefore is not guilty. To require, as the amended section would, that a person has to prove their innocence is an affront to fundamental principle. It is shocking that our Supreme Court reached a decision with great care and that we are now seeking to overrule that decision. To most of us, the current position is very clear. The notion that there is uncertainty is, I suggest, a confabulation to justify overturning important principle.
Therefore, I, too, wish to invoke the fact that this is about not just an article of the European court or European convention; it is also an affront to the common law built up over the experience of our nation which says that persons should be deemed to be not guilty unless the state has managed to prove their guilt. I have been involved in cases where it would be very difficult to prove that you were innocent—indeed, the cases which have been mentioned, to which I referred at Second Reading, where mothers were found guilty of causing the death of their babies but thereafter it was felt that medical science was not yet in a place to help to ascertain possible genetic causes of sudden infant death. To ask those women who were released on appeal—having been in prison and having suffered the anguish of being accused of killing their own babies—to prove that they were innocent on the standard we are discussing is, of course, asking the impossible.
The reality is that with some cases, usually those involving the use of DNA, you can show that the miscarriage of justice most certainly involved the wrong person being accused. However, that happens rarely and usually involves calling into question the evidence that went before a jury and raising the spectre that a wrong decision was made. Too often, I am afraid, it also involves the state having behaved badly through its agents. In the cases mentioned by the noble Baroness, Lady O’Loan, in which I was involved—Irish cases where there were miscarriages of justice—false confessions had been made following the misbehaviour of police officers. Sometimes a question mark is raised over cases because the state has failed to behave appropriately.
We must be clear that, even on the balance of probabilities, it is asking the impossible for someone to show that they are innocent. Great experience gained in the common law has taught us that we do not make innocence a test; we decide as between guilt or non-guilt. On a previous occasion it was a source of shock to me to hear one of our eminent judges speak about a case where it seemed to him that it would be an affront if someone were compensated. Occasionally people are acquitted where they may be guilty but we in our wisdom know that that is a price you sometimes have to pay for having our highly regarded justice system.
I am afraid that this issue is about principle. It is not about arcane law but about the stuff that makes our legal system work and makes it something to be proud of. I sincerely hope that if the Minister does not accept that this issue has to be looked at again, in the fullness of time this House will remedy what the Government seek to do in this clause.
Lord Pannick (CB)
My Lords, I agree with the speeches that have been made this afternoon. Clause 151 should not be included in the Bill unless it is amended in order to restate current law, as the noble Lord, Lord Beecham, suggested. There are three reasons for that. The first is the reason about which the noble Baroness, Lady Kennedy of The Shaws, spoke; namely, a defendant does not have to prove innocence at trial. It would be contrary to basic principles to require the defendant to prove innocence in order to obtain compensation for a wrongful conviction. Even the Scottish verdict of not proven, to which the noble Lord, Lord Beecham, referred, does not, as I understand it, require the defendant to prove anything at all.
The second point is the practical one, which is as important as issues of principle in this context. The point was made at Second Reading by the noble Baroness, Lady O’Loan, and the noble and learned Lord, Lord Hope of Craighead, and made this afternoon by the noble Baroness, Lady Kennedy of the Shaws. It will often be very difficult indeed for an innocent person to prove their innocence: the evidence may simply be unavailable. It is very unfair that they should be unable to secure compensation for the miscarriage of justice.
The third point is that the approach adopted by Clause 151 breaches the European Convention on Human Rights because it contravenes the presumption of innocence in Article 6.2 of that convention. All 17 judges of the Grand Chamber of the European court stated this on 12 July in the case of Allen v United Kingdom, a case about compensation for miscarriages of justice. It was a unanimous judgment, which found that there was no breach of the presumption of innocence, but an important part of the court’s reasoning, at paragraph 133, was that the courts of the United Kingdom,
“did not require the applicant to satisfy Lord Steyn’s test of demonstrating her innocence”.
That is the test that was stated by the noble and learned Lord, Lord Steyn, in the case of Mullen in 2005—found in 1 Appeal Cases, page 1—in the Appellate Committee of your Lordships’ House. The noble and learned Lord, Lord Steyn, took the view that Section 133 did contain a proof of innocence test. That approach was not adopted by the Supreme Court later, in the Adams case.
Clause 151 now wishes to introduce the approach of the noble and learned Lord, Lord Steyn. It would be a quite remarkable step for Parliament to enact legislation now which contravenes a clear and recent statement in a unanimous judgment by the Grand Chamber of the European court, a step which should be taken only in the most exceptional circumstances, where some fundamental principle of English law is at stake. That is not the case here: we are not dealing with a clause that seeks to maintain some fundamental principle of English law. Indeed, to the extent that fundamental principles are at stake, they are those explained by previous speakers in this debate and which Clause 151 will frustrate and breach.
I will make one other point. At Second Reading, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, who I am very pleased to see in his place today, said he was concerned about a case in which the conviction was quashed because of an abuse of process by the prosecution. However, my understanding of the Adams judgment in the Supreme Court is that compensation is not, in any event, payable under the current law in such a case. The Supreme Court describes such cases as category 4 cases:
“Where something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted”.
The Supreme Court said very clearly that such cases do not, under current law, confer a right to compensation.
At Second Reading, the noble Lord, Lord Taylor of Holbeach, said that Clause 151 is designed to introduce certainty into the law, but Section 133 already has a clear meaning, as the noble Lord, Lord Beecham, explained. The Government intend to change that meaning; I hope they will withdraw this clause before Report.
Lord Brown of Eaton-under-Heywood (Non-Afl)
My Lords, I recognise that the great majority of noble Lords who took part in the Second Reading debate on this clause, and the great majority of those who have spoken or propose to speak in this debate, are against Clause 151. However, if I may say so, they are under a considerable misapprehension as to the essential nature of this provision.
The clause has everything to do with statutory compensation but, frankly, little to do with criminal justice. That may sound simplistic but it is true. Convictions may be quashed in a wide variety of circumstances. It may be that fresh evidence comes to light that shows that the accused could not possibly have committed the particular offence. That may be as a result of DNA evidence, or perhaps someone later admitted to the very offence of which he has been convicted. Or it may be that the fresh evidence gives rise to a “lurking doubt”, as it is called, as to whether the defendant really was guilty. Or perhaps the judge can be shown to have unfairly admitted evidence or possibly misdirected the jury so that the conviction can no longer be regarded as safe. In all these cases, the conviction must be quashed and the defendant set free, and the presumption of innocence applies at that point in all those cases. However, it would be a very great mistake to suppose that all those defendants, merely because their convictions have been set aside and they are now presumed to have been innocent, are thereby entitled to the payment of compensation.
On the contrary, under the international convention to which our legislation is giving effect, only a very restricted number of cases are entitled to compensation: only those who by virtue of new facts disclosed on a late appeal can be shown conclusively to have suffered a miscarriage of justice are entitled to compensation. The critical question is: what, for this purpose, is a miscarriage of justice? It is not—I repeat and emphasise, not—the case that any conviction subsequently shown to be unsafe and set aside is a miscarriage of justice.
In the case that we have all been considering, Adams, the Supreme Court divided by 5:4. I should make it plain, as I did at Second Reading, that I was in the minority of four. The appellants and Justice, which intervened in that case, argued for the position that is apparently being taken by those participating in this debate, whereby all those whose convictions are set aside as unsafe should qualify for compensation. That, I understand, is what the noble Baroness, Lady Kennedy, contends. That indeed clearly appears to be the point made by the noble Baroness, Lady O’Loan, at Second Reading. She said:
“If we legislate in the way suggested by the Government, we will create two types of ‘not guilty’ … those who are fortunate enough to be able to present evidence that proves conclusively that they are innocent; they will be entitled to compensation. Others, not so fortunate, will only be able to prove that they should not have been convicted”.—[Official Report, 29/10/13; col. 1515.]
However, even under the amendment, those whose convictions are set aside as unsafe and who may well be, in the words of the noble Lord, Lord Beecham, truly innocent will still, by common consent, not be able to claim compensation. The international covenant that we have given effect to in our law shows that only a limited category is entitled to compensation.
The noble and learned Lord, Lord Judge, then the Lord Chief Justice, in the minority of four in Adams, explained that Section 133, which gave effect to our international obligation distinguishes the reversal of a conviction and a miscarriage of justice. These concepts are distinct. In short, for the purposes of Section 133, the reversal of a conviction and the consequent revival of the legal presumption of innocence are not synonymous with a miscarriage of justice.
The noble and learned Lord, Lord Steyn, in the case of Mullen, concluded that compensation was payable only when,
“the person concerned was clearly innocent”.
That, if I may say, was entirely consistent with the explanatory report that related to an article in the protocol to the European convention, which was enacted in terms virtually identical to those of Article 14.6, which our Section 133 is designed to implement. The explanatory report said:
“The intention is that states would be obliged to compensate persons only in clear cases of miscarriage of justice, in the sense that there would be acknowledgement that the person concerned was clearly innocent”.
In Adams, the majority devised a sort of halfway house, which was later redefined by the Divisional Court in Ali to say that compensation is payable if a new fact shows,
“beyond reasonable doubt, that no reasonable jury (or magistrates) properly directed as to the law, could convict on the evidence now to be considered”.
That, noble Lords will readily see, is essentially the identical language to that which Amendment 15 now proposes to put into Clause 151. That, I respectfully suggest, is the worst of all possible worlds.
Baroness Hamwee
My Lords, I was quite right to wait for others to table the amendment before adding my name, so that they could all go first with the arguments. I tried to canter through them at Second Reading in considerable haste and will try to be quick now. I accept that the new clause is to do with compensation, not the criminal law, otherwise every overturned conviction would lead to a right to compensation and Section 133 makes it clear that that is not the case. However, what has been troubling me is that if you do not have to prove innocence at the original trial and then the matter turns on a new or a newly discovered fact, surely you would not have had to prove that. If the fact had been available at the time of the trial, this would not have changed whether you would have to have proved your innocence, which you did not have to do. I do not see that bringing in a new fact should change that at all. I do not see why that is necessary now.
The noble and learned Lord, Lord Brown, has said that this is about who should be entitled to compensation. The Government say that it is about clarity. They do not argue in any effective way that the amounts involved are such as to require a change in the law in order to save the taxpayer. The impact assessment on this clause says:
“The intended effect is to lessen the burden on taxpayers and reduce unnecessary and expensive legal challenges to Government decisions to refuse compensation”.
Those are two quite separate points. The lessening of the burden on taxpayers is very small, but legal challenges to government decisions are another matter. That goes to clarity and it seems to me—I am not nearly as well qualified as everyone else who has spoken—that the chain of cases we have has produced the clarity. The impact assessment says that we need the provisions to be unambiguous and decisions on eligibility to be more transparent. I should have thought that the cases have taken us to that point.
Lord Faulks
My Lords, I fear that I do not share the view just expressed by my noble friend Lady Hamwee that the law is clear at the moment. The number of decisions, one following another, with disagreements between judges in the same tribunal indicates the difficulty of the question and, I conclude, the lack of clarity in the test that should be applied. One of the reasons for this provision is in order to provide clarity. That, I believe, it does. The second question is whether it is appropriate and whether it offends the presumption of innocence. I am part of the Joint Committee on Human Rights and originally I took the view that it did offend the presumption of innocence. I have changed my mind, having thought about it. Although I was not often able to persuade the noble and learned Lord, Lord Brown, of anything, he has contributed to persuading me, on the other hand, of the merits of the arguments he advanced, both at Second Reading and today.
I have also had the opportunity of reading the cases of Allen v the United Kingdom and KF v the United Kingdom and I agree with the noble and learned Lord that they do not in any way require the retention of the law in its current state, or that they offend the presumption of innocence—provided, it seems, that some judge, in declining to award compensation, does not make any comment to the effect that there is any doubt about someone’s innocence.
I also respectfully disagree with the noble Baroness, Lady Kennedy, that the point of these applications for compensation is to hold the state to account. The point of the applications is to obtain compensation, and the difficult question is that of who is entitled to it. It is not an easy question, but in my submission the Government have come to the correct answer. Sadly, a few people who are genuinely innocent will not obtain compensation, which in my view, for the reasons given, is an unsatisfactory element. However, it does not involve people being deprived of their liberty; it is simply a question of compensation.
Lord Hope of Craighead
My Lords, I would like to make four brief points. The first is whether there should be a test in the statute, taking account of what has been said by the judges so far. The second is a brief word about the standard of proof, to which my noble and learned friend Lord Brown of Eaton-under-Heywood referred. The third question is the wording of the amendment, and the fourth is the wording of the clause that the Government are proposing.
On the first point, I am very much in sympathy with the points made by the noble Lord, Lord Faulks. Particularly in view of what the Divisional Court said following what the majority said in Adams, there is a bit of confusion as to the way the judges are going. I must say that I would have hoped that Adams had settled the matter, admittedly by a small majority, but then we find the Divisional Court in Ali using a formula which I do not think fits with the majority view in Adams very well, if at all. Given that state of affairs, the Government are probably right to say that the time has come for the matter to be laid down in statute. This has a bearing on a point with which I am inclined to agree with the noble Lord as well. We are dealing here with compensation, not the criminal law as such, and therefore while one has a concern about the presumption of innocence, it is not going to affect the individual’s position as to whether or not he is to be convicted.
I support the Government in principle on those points and, coming to my second point, I also support them on the standard of proof. The wording of Article 14(3) uses the phrase “shows conclusively”, which points the way to the standard of proof that the new clause is adopting. I would be very uneasy about reducing it to a balance of probabilities test in view of the background of the article and the purpose of the provision, which is to provide for compensation in exceptional cases which really do justify that kind of award.
On the third point concerned with the wording of the amendment, I am bound to say that I am troubled by it. I hope that the noble Lord, Lord Beecham, will look at it again. What he has done, as I understand it, is adopt the formula that was used in Ali by the Divisional Court. If one looks more closely at the judgments in Adams, it will be found that the majority were not adopting a formula that, as my noble and learned friend Lord Brown rightly pointed out, is used more or less every day in the court of criminal appeal. It was not in the mind of the majority—I have to say that I am speaking as a member of that majority—that any conviction which is shown to be unsafe should justify an award of compensation; not at all. Lord Bingham, who started thinking about this before we came to it in Adams, was talking about some kind of failure in the trial process, something quite fundamental which has gone wrong. The example mentioned by my noble and learned friend Lord Brown was the person brought to trial here who should never have been brought to trial here at all. That is quite a strong example. One is looking for something different from and more exceptional than the Ali test indicated. I suggest that the noble Lord, Lord Beecham, and his advisers look more closely at what the noble and learned Lord, Lord Phillips, said in paragraph 55, supported by the noble and learned Baroness, Lady Hale, in paragraph 114, the noble and learned Lord, Lord Clarke, in paragraph 217 and myself in paragraph 74, indicating that what was really being looked for was something that is so fundamental that it undermines the evidence so that no conviction could possibly be based on it. The words “so undermined” and “could not possibly” were intended to indicate a much tougher test than the test that rightly is of concern to my noble and learned friend Lord Brown.
Coming to the wording of the Government’s proposal in Clause 151, it may be a practical point, but it is a fundamentally important point. I have here the letter which was written by the noble Lord, Lord Taylor of Holbeach, to the noble Baroness, Lady Smith of Basildon, on 7 November. Quite rightly, he is pointing out for everybody’s information that the applicant will not need to prove anything. What he is saying is that the requirement that the clause imposes is something that will be satisfied simply:
“they will not need to provide any information apart from the Court of Appeal judgment quashing their conviction”.
Very well; that is the material to which you look. The individual does not have to prove anything except simply tender the judgment of the Court of Appeal and say to the Minister, “Here it is, see what you can make of it. Does it come up to the required standard?”.
That brings me to one of the cases which the noble Baroness, Lady Kennedy, was looking at. It is the case of Sally Clark, which was one of the most tragic cases, I think, that has ever come to the court’s attention. Noble Lords may remember that she was the lady who had two babies, each of whom died. Initially, it was thought that this was due to cot death. The authorities were not satisfied with that; it looked like too great a coincidence. The matter was referred first to pathologists, who conducted post-mortem examinations of both infants. Then it was referred to Professor Meadow, who looked at the statistics. He came up with a statistic that the situation of two infants dying and their deaths being attributed to cot deaths was really stretching the imagination far too far, because if one has a second death following on the first, the chances are one in 74 million against its being due to natural causes. That startling statistic was the basis of the Crown case before the jury. The jury convicted.
Subsequently, the case first went on appeal and the conviction was upheld by the Court of Appeal. It was then referred by the Criminal Cases Review Commission back to the Court of Appeal. The significant point is to look at the way in which the Court of Appeal dealt with the argument. The noble and learned Lord and his advisers may care to see the way in which the narrative proceeds in the case of Meadow, which was reported in 2007 Queen’s Bench 462. The relevant facts can be gathered from paragraph 102 in the judgment of Lord Justice Auld and the opening remarks of the Master of the Rolls, Sir Anthony Clarke.
The point is that the basis on which Sally Clark’s conviction was set aside was non-disclosure of relevant material by the biologist who conducted the biopsies, the post-mortem examinations of the infants, particularly one point relating to the second of the two infants to die. It was a non-disclosure point. With great respect to those who are proposing Clause 151, I do not think that it could possibly satisfy the test which Clause 151 sets out. The Court of Appeal did not go ahead to examine the significance of the evidence of Professor Meadow. It did not have to, because it found that non-disclosure was enough for the conviction to be unsafe and that was the standard being applied in that case.
Of course, there was no declaration of innocence; that certainly would not happen in our criminal Appeal Court. It was on the basis that it was unsafe on the ground of a non-disclosure. However, if one had gone on to look at the statistic, which was grossly irresponsible—indeed, Professor Meadow was taken to task by his professional body and found guilty of misconduct; serious misconduct was set aside, but he was found guilty of misconduct—that was evidence that should never have been placed before the jury, because the one point that he failed to disclose was that the statistic did not apply in a situation where two children were related. It was a statistic for when the children were unrelated, which was not the case that was being dealt with at all.
That raises a very real practical issue. The case destroyed that poor lady’s life, as we all know. I am haunted by the picture of her coming out of the court, having been successful in her second appeal. She had totally changed physically from when she went into prison and, as we all know, she later took her own life. If there was a case that called for compensation, surely that was it. I do not know what happened, as the case was decided early in the decade, before Mullen, which was the conviction from, I think, 2000 that was set aside. The question of the Mullen test did not arise and I think it was decided under some ex-gratia system, although I do not know the facts. However, that is not really what should disturb the Minister. The question is whether the test is one that could face up to that kind of case, which everybody would feel should see compensation.
It is a practical problem, and I support the Government a long way in their thinking. For reasons I have attempted to explain to the noble Lord, Lord Beecham, I am not in favour of his amendment, and would certainly not support it in its present terms, but I do ask the Government to look more carefully at their own version of the clause.
The Minister of State, Ministry of Justice (Lord McNally) (LD)
My Lords, I will correct the noble and learned Lord, Lord Hope, on only one point. I think that at one point he referred to me as noble and learned. Nothing could be further from the truth—I think, in fact, I am the first non-lawyer to rise to his feet in this debate. But we are none the worse for that, because this is about getting it right. I am very pleased that the way in which the debate unfolded showed what a challenge the Government are trying to meet. I have one little chide for the noble and learned Lord, Lord Cullen: he talked about the Government’s “ostensible” reasons, which implies that there are some less worthy reasons behind the legislation. Again, as the debate unfolded, it became clearer that we are trying to deal with some genuine problems. I believe that this debate will stand very good reading. We are all going off on recess and so will have the opportunity to study very carefully some very detailed speeches. The best advice that the noble Lord, Lord Beecham, gave was that we should all listen carefully to the arguments. That is certainly what I intend to do.
We are going to some fundamental questions. The noble and learned Lord, Lord Cullen, questioned whether Parliament has the right to override a carefully calibrated judgment of our Supreme Court. As I say, I am not a lawyer but I am, if I have any other description, a parliamentarian and have always thought that Parliament has that right, however well calibrated the judgment might be. The noble Baroness, Lady Kennedy, was very keen to see it as an affront to that fundamental principle of the presumption of innocence and, indeed, as an affront to our common law. The noble Lord, Lord Pannick, warned us that it was a breach of the European convention. Then, almost like the 7th Cavalry, the noble and learned Lord, Lord Brown, came over the hill with what sounded like, even from my layman’s position, a magisterial dissection of the arguments. I hope and advise that all participants in the debate, and wider readers, read what the noble and learned Lord, Lord Brown, had to say. He pointed out clearly that compensation was not available in all circumstances and that only a limited number would qualify. I will not try to repeat his arguments, as I want to study them carefully.
Lord Beecham
The Minister has given an interesting and full reply to what has been a very interesting and compelling debate, demonstrating yet again that consideration of these matters goes further and deeper in your Lordships’ House than it does in another place, where, frankly, this issue was dealt with in fairly peremptory fashion.
I am grateful to all Members of your Lordships’ House, particularly the noble and learned Lords, for their contribution to the debate, and I will certainly be taking my own advice and that of the Minister and reading very carefully and more than once the contributions that have been made in this very difficult area, both philosophically and in terms of jurisprudence.
It is interesting that the Minister rejects the test that is advanced in the amendment as not acceptable and again repeats the mantra that applicants are not required to prove their innocence because, as he implies, the amendment suggests that everybody whose conviction is quashed should be compensated. That is not what the amendment is intended to achieve and not what it says. The noble and learned Lord, Lord Hope, identified one category where purely procedural defects of a significant nature—for example, somebody being wrongly brought over to this country for trial— was sufficient to make a conviction vulnerable to quashing, and indeed it was quashed. That did not give rise to the sort of concerns that the amendment seeks to address.
Lord Beecham
Lord Beecham
My Lords, happily this is a relatively short matter and appropriately I shall be speaking to it.
The issue here is a change to the way in which shoplifting is to be dealt with. The thrust of the Government’s proposals is to make a summary-only offence of shop theft below £200. That would facilitate matters being disposed of without trial following a written guilty plea, with a fine then usually being imposed on an absent defendant. It might seem somewhat illogical for the Government to preserve the right to elect trial for somebody even on a charge for such a moderate amount, but they are absolutely right to do this.
The problem identified by members of the retail trade and the Magistrates’ Association in particular, and perhaps also by others, is that under the present system an on-the-spot fine can be given for a low-value shop theft if the penalty, which I believe at the moment is £80, is not paid within 21 days. Half of them, incidentally, are not. It then becomes a higher fine of £120 and the court system manages the collection. That is a reasonable way to approach first-time offenders. It should not, however, continue to be available for repeat offences. The penalty notice for disorder—we are into alphabetical descriptions again: the PND—is not an admission of guilt.
The police often caution offenders for shop theft—that does require an admission of guilt. It could be the next stage after a previous PND. A summons to court may follow after two previous incidences of shop theft. If the Government’s measures turn this into a kind of postal process only, there is the danger that repeat offenders will accumulate a succession of fines without really being stopped or deterred at all. The view of the Magistrates’ Association is that a great deal of shop theft goes undetected as it is, and some offenders detected under this process for the third time will have committed nearer to 30 offences. This is obviously not good for the trade. It is also probably not good for the offenders. Many of them have huge problems. They may be afflicted by homelessness and a consequent inability to claim benefits, or they may have problems of addiction to drugs or alcohol. Of course, those aspects will not be picked up on at all under this process. There is therefore a double risk, both to the trader and, indeed, very often to the offenders.
The purpose of the amendment is therefore to narrow the scope within which these new procedures can apply. The figure is one which simply triggers the debate. In the Commons, my honourable friend Mr David Hansen who moved the amendment did so with two figures, £100 and £40. It is irrelevant which figure one looks at, the question is whether the system as proposed will produce more problems rather than fewer for both traders and potentially for offenders, and whether—at the very least—a lower figure might limit that. I hope that the Minister will consider that area. I am not expecting a complete response tonight, but perhaps by the time we come to Report the Government could have had another look at this issue with a view to seeing whether some of these fears which have been expressed by those with an interest in the matter can be properly addressed. I beg to move.
Lord Borrie (Lab)
My Lords, I support the amendment —I suppose because it comes from my Front Bench. However, I do not like the provision in the Bill at all. Shoplifting has been with us, as it were, for a long time. Correct me if I am wrong, but it is unprecedented for shoplifting to be singled out as a form of theft that should receive special attention. What is the gain to the public of that?
Shoplifting is of course prosecuted under the Theft Act 1968. When I was a young barrister prosecuting young shoplifters up and down Oxford Street, the notion was that very few people did other than plead guilty. They wanted to get it out of the way. They certainly did not want to go for trial and have to wait until a jury trial could be arranged. Therefore, they invariably preferred the summary trial. I would be surprised if that were any different today.
I see little point in this clause if it introduces for the first time special provision relating to one particular kind of theft. Why this kind of theft? Why not theft from one’s employer, or from one’s friends and neighbours? Why shoplifting, in particular? From my experience of years ago, I am afraid that the general public seem to think that shoplifting is not nearly as serious as real theft. It is something that most people engage in when they are young, or otherwise. However, to label this aspect “shoplifting” rather than theft in general, as the Government are doing, is perhaps to lend credence to the notion that shoplifting is not so important at all.
I suggest that the very least which could be done would be to adopt the amendment of my noble friend Lord Beecham. Really, however, the Government ought to withdraw the clause. Is the Bill not big enough, covering enough subjects, as it is, without dragging in something which has no relevance to any other part of the Bill?
Lord McNally
It is always a great pleasure to follow the noble Lord, Lord Borrie. I have always thought of him as a complete Front-Bench loyalist but also acknowledge his considerable experience in this area. By the way, I am only teasing him about being a Front-Bench loyalist.
A long time ago I was director of the British Retail Consortium, and I know that it is one of the most irritating things for shopkeepers, large and small, when shoplifting is seen as some kind of victimless crime or childish prank. I often think, when looking at first-time offenders, that they should be listed as “first-time court offenders”. It is a scourge, and as the noble Lord, Lord Borrie, knows as a former champion of the consumer, in the end the consumer pays for the tolerance of shop theft. Therefore this certainly in no way trivialises shop theft. We intend to produce guidelines for the police on these provisions and we are currently working with the police and retail associations to draft guidance on them, which we hope will be available in time for Report. That will primarily cover the circumstances under which it would be appropriate to pursue the Section 12 Magistrates’ Courts Act procedure, which allows defendants to plead guilty by post.
The volume of people who go through the court is certainly a problem. Just over 120,000 people were brought to justice for shop theft in 2012, 40% of whom received out-of-court disposals. However, we do not believe that these changes will result in shop theft being treated less seriously; in the vast majority of cases they will affect neither where the case is tried nor the sentence that is imposed. Ninety-nine per cent of shop theft cases are heard in magistrates’ courts, and of those who are convicted 98% are sentenced there. Only 1,650 shop theft cases were sentenced in the Crown Court last year, and 90% of them resulted in a sentence that the magistrates’ court could have given.
It is true that there are remaining concerns about that in the retail sector. However, we believe that they flow mainly from a misunderstanding about what the provisions seek to achieve. Any incident of theft continues to be a serious matter. However, the changes we are introducing simply enable more efficient processes to be employed to bring such cases to justice quickly. They do not change the fact that 99% of shoplifting cases are already considered in the magistrates’ court and that 90% of cases involve goods worth less than £200.
Amendment 16 would reduce the number of shop theft cases to which Clause 152 applies by reducing from £200 to £100 the monetary threshold that defines these cases. However, I appreciate that that was a figure given to stimulate the debate. The purpose of the clause is to enable cases of low-value shop theft to benefit from more efficient arrangements that are limited to summary-only offences. In particular, it will mean that the procedure that enables defendants to plead guilty by post will be available, and the police will be able to make use in these cases of powers that they already possess, whereby they can prosecute certain offences where they are uncontested. The result will be to speed up the prosecution of these cases and to provide swifter justice for retailers.
Nobody would suggest that the theft of valuable property should be made a summary-only offence. A line has to be drawn somewhere, and the £200 threshold was chosen on the basis of research that was done in 2006 for the Sentencing Advisory Panel. That showed that 90% of all shop theft cases heard in magistrates’ courts involved goods worth £200 or less. Lowering the threshold to £100 would catch rather fewer cases—77% of them, according to that research. I am not sure what would be gained by excluding cases where the item stolen was worth more than £100. Almost certainly it would have no effect at all on where the defendants were tried or on the sentence that could be given. It would simply mean that the more efficient and speedier procedures would not be available in those cases.
I assure noble Lords that we do not expect all cases of low-value shop theft to be dealt with by post and prosecuted by the police in the defendant’s absence. That is not the intention. It may well be appropriate for prolific shoplifters to be charged and bailed to appear in court, to be dealt with in person. That would not only be suitable but necessary in cases where a custodial sentence was in prospect. The new provisions do not prevent this: whether the “guilty by post” procedure is used is discretionary. This is a matter for guidance which we are developing, as I have just said.
Amendment 17 would exclude from the ambit of Clause 152 any case in which the defendant had already received a caution, conditional caution or penalty notice for disorder in respect of shop theft. It is not clear why a case should be excluded from the scope of these provisions simply because the defendant had previously received a caution or other out-of-court disposal. That sort of disposal is not an unusual outcome for a first offence of shop theft.
The Government are aware of concern about people being given a succession of cautions for similar offences and have considered this as part of the simple cautions review, the outcome of which we will announce shortly. The expectation will therefore be that defendants who have already received an out-of-court disposal will be prosecuted. Prosecution for low-value shop theft under the streamlined procedure permitted by the new section seems an obvious and appropriate next step, and it would be perverse to rule that out. A person being prosecuted for the first time for offending at this level is most unlikely to receive custody, and is therefore very suitable to be dealt with under the new procedure.
I am grateful for the contributions made and hope that the amendment prompted the debate for which the noble Lord, Lord Beecham, hoped. I also hope that my explanation will provoke him to withdraw his amendment.
Lord Beecham
I always enjoy being provoked by the Minister. On this occasion I am happy to withdraw the amendment.
Lord Touhig
“Protection arrangements for children and dependants
(1) The Criminal Justice Act 2003 is amended as follows.
(2) After section 174 (duty to give reasons for, and explain effect of, sentence) there is inserted—
“174A Duty to ask about children etc left behind
(1) Any court passing a custodial sentence on an offender who was on bail when awaiting sentence must ask what the arrangements are for the care of any children of the offender or any vulnerable adult who is dependent on the offender while the offender is in custody.
(2) If the court considers the arrangements are not satisfactory the court must make a referral to the relevant local authority social care team.
(3) Any person or body having statutory responsibilities for children or vulnerable adults must co-operate with the court in securing that arrangements are made for their safety in the circumstances to which subsection (1) refers.”
(3) The Bail Act 1976 is amended as follows.
(4) In section 5 (supplementary provisions about decisions on bail), after subsection (5), there is inserted—
“(5A) Where a court withholds bail in criminal proceedings from a person to whom section 4 of this Act applies, the court must ask what the arrangements are for the care of any children of the defendant or any vulnerable adult who is dependent on the defendant while the defendant is on remand in custody.
(5B) If the court considers the arrangements are not satisfactory the court must make a referral to the relevant local authority social care team.
(5C) Any person having statutory responsibilities for children or vulnerable adults must co-operate with the court in securing that arrangements are made for their safety in the circumstances to which subsection (5A) refers.”
(5) This section shall come into force two months after enactment.”
Lord Touhig (Lab)
My Lords, this amendment stands in my name and that of the noble Lord, Lord Ramsbotham, who has asked me to apologise for his absence as he is en route to Kenya as we speak.
This probing amendment would introduce a very straightforward duty on courts to inquire whether individuals who are refused bail or sentenced to prison have caring responsibilities for any children or vulnerable adults and, if they do, to make a referral to the appropriate local authority if arrangements are not in place for their immediate safety and well-being.
The noble Lord, Lord Ramsbotham, if he were here, would have sought to discover more about the Government’s plans to transform the probation service. He would have reminded the House that in pre-Grayling days family details would have been discovered by the probation service, which would have included this information in pre-sentence reports. I know he would have worried that a privatised probation service would not have the time to complete full reports, and I believe that he would have been right to do so.
Our proposed change in the amendment would not have any bearing on decisions about the length of sentence or whether bail is granted, nor would it place any onerous burden on courts to establish care provisions themselves. It is simply about identifying young, old or disabled people who have been left in a precarious situation as a result of their primary carer being imprisoned, so that the appropriate steps may be taken. Regrettably, far too many are let down by the current system.
At Second Reading, I spoke about a seven year-old boy who was neglected and, ultimately, left alone by friends after his mother was sentenced. Then there was the case of the young lady who was unaware of her daughter’s whereabouts and only discovered that she had been hospitalised after a support worker contacted four different councils. Finally, a 19 year-old boy was left caring for five siblings when his mother was denied bail. These give an indication of the kind of cases that organisations supporting this amendment—members of the Families Left Behind campaign—are regularly faced with. Charities such as the Prison Advice and Care Trust, Barnardo’s, the NSPCC and Caritas Social Action Network have all highlighted how vulnerable people are unnecessarily put at risk, sometimes overlooked for hours or even days. In such cases, serious risks often only become apparent when the prisoner talks to a support worker or chaplain about their family.
People facing trial or bail hearings are rightly encouraged to make arrangements for their dependants before entering the courtroom, and many do just that. Where the court is assured that suitable support is in place, this amendment will not necessitate any further action whatever. However, where those arrangements have not been made, perhaps because the defendant was confident of being released or was simply overwhelmed by the judicial process, it offers a vital opportunity for early intervention to prevent people from coming to harm. The importance of avoiding any break in care for children or vulnerable adults is well established. The Government themselves advise that children under 16 should not be left alone overnight; children under 12 should not be left alone for long periods of time; and babies or toddlers should never be left alone at all. The advice continues and warns that parents may be prosecuted if any child is left,
“in a manner likely to cause him unnecessary suffering or injury to health”.
Yet this is precisely the situation some children face when a parent is remanded in custody or sentenced to prison. The longer it takes for the appropriate authority to intervene, the greater the risk becomes.
Likewise, we are only too aware of the danger posed to older or disabled adults by depriving them of necessary support, even for a short time. We have all been appalled by cases in recent years where just one or two missed homecare visits have led to people being left in darkness, unable to use the toilet or even without vital medication. In more extreme situations, people have experienced serious harm, or even lost their lives, after falling through gaps in the system and finding themselves without support. Many steps are being taken to ensure that such tragedies are never repeated and that homecare schedules are properly adhered to. Yet equally robust provision is lacking in situations where a person’s primary carer is a relative or friend and they have been given a custodial sentence.
It is worth revisiting the number of people at risk of being left in these difficult circumstances. Some 200,000 children in England and Wales experience the imprisonment of a parent every year, more than twice the total number of children in the care system. While statistics for adults who experience the imprisonment of their carer are not centrally collected, this figure is also likely to be significant, given that the prison population currently stands at over 80,000 and approximately one in eight of Britain’s adults is a recognised carer. A simple process whereby courts make relevant inquiries and notifications regarding dependants, at the point when a sentence is passed or bail is refused, will go some considerable way to addressing current shortcomings, without creating significant pressure on either time or resources. The proposal also stands to reduce the need for the more intensive and costly intervention often required further down the line if people are left without support.
I therefore hope that we can take this opportunity to adopt this sensible and constructive measure. It is a small change in procedure but it will make a significant difference for a child who finds that there is no one to collect them from school because their mother has been refused bail, or for the elderly parent who finds that there is no one to help prepare their dinner because their son has been handed a custodial sentence. When anyone is sent to prison, the families and dependants who are left behind will invariably feel the consequences. It is perhaps impossible to completely mitigate the impact of losing a parent or carer in this way but we can and must make improvements to ensure that those innocent people who, through no fault of their own, are placed in positions of extreme vulnerability do not go unnoticed.
We are all grateful to the noble Lord, Lord Taylor of Holbeach, who took a great deal of trouble to write on a number of matters that came up at Second Reading but this was one issue that slipped through the net and was not referred to in his letter—just like many of the people who I talked about; they, too, slip through the net. Perhaps the Minister when he replies can give us some hope that our pleas have not fallen on deaf ears. I beg to move.
Lord Hylton
My Lords, I am happy to support the amendment. I mentioned at Second Reading that it was through my long association with the Northern Ireland Association for the Care and Resettlement of Offenders that I came to be sensitive to the issues behind the amendment. It was NIACRO, I think, that first coined the phrase, “the silent sentence”, which described in those few words the impact on families of the imprisonment of a parent or person caring for children.
It is highly significant that 12 or 13 NGOs or charities have come together to launch a campaign called the Families Left Behind. They point out:
“Children of prisoners are disproportionately represented amongst young offenders, the care population, children in poverty and children with mental health needs. Parental imprisonment is correlated with a range of other family problems including domestic violence and drug and alcohol misuse”.
It is significant that two-thirds of boys whose fathers have been in prison go on to offend. We should note that 66% of women currently in prison have children.
I shall give a little history of what has happened in the past two years. In 2011, Action for Prisoners’ Families together with Her Majesty’s Courts and Tribunals Service—a significant combined action by a voluntary group and a statutory body—published a range of resources aimed at promoting good practice in relation to children or dependent adults whose primary carers had been sent to prison. These resources included new guidance asking magistrates to check that there are no immediate welfare needs concerning children or dependent adults. However, the sad fact is that many courts have not followed this guidance and therefore seem still to be unaware of the issues concerning the welfare of children and vulnerable dependants when the carer is placed in custody.
The amendment is quite right to place the responsibility clearly on the court making the sentence. This will be, I am sure, a matter to which we shall return on Report. Meanwhile, I look forward to the Government’s response.
Lord Judd (Lab)
My Lords, I strongly support the amendment. I remember, on a visit to Holloway, being tackled very forcefully by a prison officer, who said how outraged she was, fulfilling her duties, sometimes quite late at night, of receiving and processing people who were being taken in to that prison after court proceedings, that only at that stage did the staff discover that there was somebody vulnerable at home. It is outrageous in any decent society that there is any possibility of something like this happening. I think sometimes that we just do not think through the consequences. Apart from the possible inhumane results, not that infrequently a vulnerable person in that situation will have been in the care of a woman or a man—it is not exclusively a matter for women—in a home that has had more of its share of disrupting influences on that child. For the child suddenly to be left in this predicament only compounds the insecurity that that child has faced in life and, indeed, could well accentuate a tendency to anti-social behaviour at a later stage.
If we are trying to reduce crime and encourage the young to forgo the possibility of delinquent behaviour, a demonstrable sense of care by society is very important. From that standpoint, it seems to me that this amendment is crucial. I will be very sad if the Minister feels unable to accept it, because I am quite certain that it must be pursued on Report. For a prison officer, who was deeply concerned, to raise the matter with me brought the point home to me all the more forcefully. It is quite shocking that this sort of situation can occur. The sooner we eliminate that possibility, the better.
Baroness Hamwee (LD)
My Lords, I can well understand the problem that individuals facing sentence may be in denial about the consequences. In what I think is a parallel example, working on adoption through the Select Committee earlier this year and talking about placements of children and whether it was right for a child to be placed away from its birth parents, we were told time and again that it was at a very late stage that other members of the birth family would come forward offering to care for the child. I do not want to leap to conclusions on how this proposal might operate, so I ask the noble Lord whether he or those involved with this campaign—I regret that I have not seen the detail—have consulted, first, the courts and, secondly, the Local Government Association about the operation of such a scheme.
Lord Beecham
I am grateful to the noble Lord for giving way. I just want to say that we entirely support the amendment moved by my noble friend and hope that the Government will give it serious and prompt consideration. It seems to make an absolutely unanswerable case and one that could lead to the saving of public money, quite apart from any other consideration, avoiding, for example, children having to be taken into care or extra services being required in an emergency, which would save the public purse. That is another reason for supporting the amendment and I hope that the Minister will be able to say something positive about it.
Lord McNally
I am reliably informed that the noble Lord might have to quit, and I fully understand that; I know how reliable east coast trains are.
This issue raised by the noble Lords, Lord Hylton and Lord Judd, and by my noble friend Lady Hamwee is serious. I sometimes think that we are too ready to leap on the idea that the cold and uncaring state is not concerned about these matters. Sometimes some of these cases arise because an accused person has not informed anybody of children or dependants at home, and it is difficult in those circumstances to deal with matters. Courts already have a duty to take account of mitigating factors in every case, including the fact that an offender has primary care for children or other dependants. It is important that the presence of dependants is brought to the court’s attention, but the duty proposed in this amendment will not and could not force convicted offenders to tell the court about the existence of dependants.
The case law in this area makes it clear that a judge must perform a balancing act when making a sentence, weighing up the welfare of the child against other factors, such as the length of sentence and the necessary limitation on the offender’s rights by reason of their imprisonment. Where necessary, the court must obtain information on the consequences of the sentences on any children. It is important, therefore, that the existence of dependants is brought to the court’s attention. There will, however, be cases where the seriousness of offending is such that despite the existence of dependants a custodial sentence is necessary. I can also say that the changes in the women’s estate which I recently announced will try to make sure that women who are in prison and with family responsibilities are as close to home as the estate allows.
I appreciate that both noble Lords, Lord Ramsbotham and Lord Touhig, come to this from a deep concern. What they are proposing would place a duty on a criminal court following a decision to sentence an offender to immediate custody or to remand a defendant in custody to ascertain what arrangements had been made for the care of any child or dependant. I completely understand the sentiment behind the amendment. It is right that we should be concerned for the welfare of the children and dependants of those who are about to be deprived of their liberty. I am also aware of the Families Left Behind campaign from the Prison Advice and Care Trust—PACT—which also represents the views of a number of children’s charity and penal reform groups. Indeed, a number of noble Lords, including the noble Lord, Lord Touhig, and the right reverend Prelate the Bishop of Lichfield, referred to this campaign in the Second Reading debate.
I have now seen a very helpful letter from Bronwen Fitzpatrick of PACT that explains in more detail the context of this amendment. Let me say at the outset that I do not disagree with the sentiment behind the amendment. I do, however, have real concern about the details and the practicalities of what is proposed. I will mention these concerns briefly without going into too much technical detail. I should also say that I would be happy to meet Bronwen Fitzpatrick, as she asks in her letter to me. PACT has already met the Children’s Minister, Ed Timpson, but I would be equally happy to see Bronwen Fitzpatrick with the noble Lord, Lord Touhig, if that would help.
Lord Touhig
My Lords, I will be brief because I appreciate that other Members want to carry on with other matters. The noble Baroness, Lady Hamwee, made a good point about whether the courts or the Local Government Association have been consulted. I am not sure, but it is a valuable question. However, I should point out that in a note to me, which I mentioned in my opening remarks, the noble Lord, Lord Ramsbotham, did say that currently the probation service would provide family details for a pre-sentence report. Perhaps we are part of the way there.
My noble friend Lord Judd referred to the account of a prison officer who pointed out to him the number of people who are left behind when someone with older people or children to care for is sentenced. The noble Lord, Lord Hylton, made the point that a coalition of charities has come together to help this vulnerable group. However, that coalition has no power to change the law; only we have that power and we should do so. I welcome the remarks made by the Minister and his suggestion of a meeting, but here we have a chance to put in a safety net. I have no crystal ball, but I am as sure as God made little green apples that some way down the line, unless we put in this extra element of support in one way or another, there will be a case where an elderly vulnerable person is left uncared for and dies or a child is left uncared for and dies because of the system. It is not an uncaring system, but it is an oversight that will let people down. With those few remarks, I beg leave to withdraw the amendment.
Lord Pannick
“Marital coercion
The defence of marital coercion for a wife charged with an offence other than treason or murder is hereby abolished.”
Lord Pannick
My Lords, at the end of March, the Ministry of Justice stated that the Government were considering whether to ask Parliament to abolish the defence of marital coercion. That was after the defence was unsuccessfully relied upon by Vicky Pryce at her trial in March for taking speeding points on behalf of her husband, Mr Chris Huhne. I have tabled this amendment to find out when the Government hope to come to a conclusion on this matter.
Given the time, I shall deal with it briefly. Members of the Committee will know that Section 47 of the Criminal Justice Act 1925 contains a special defence for a wife who is charged with any criminal offence other than treason or murder. It is a defence for the wife to prove that the offence was committed in the presence of and under the coercion of her husband. No such defence applies to husbands for offences committed in the presence of wives. The defence cannot be claimed by a live-in partner of either sex, by the partners to a same-sex marriage or a civil partnership, by other family members who may live in the same household, or by employees. The defence does not apply if the husband is 100 metres away when the crime is committed. Neither wives nor any other person need this defence, because of the defence of duress and the ability to mitigate by reference to relevant circumstances. The existence of this special defence has repeatedly and consistently been criticised, including by the 1922 Avory Committee and by the Law Commission in its 1977 report, which concluded that the defence was not “appropriate to modern conditions”.
I hope that by Report the Minister will be able to tell the House that the Government agree that Section 47 is unnecessary, arbitrary and should be repealed. I beg to move.
Lord McNally
My Lords, for the sake of brevity, I hope that on Report I will be able to do just that.
Lord Pannick
I am very much obliged to the Minister. I beg leave to withdraw the amendment.
Baroness Anelay of St Johns (Con)
My Lords, before I move that the House resumes and, thereafter, adjourns, I would like to inform the House that, by agreement with the usual channels today, our business next Monday has changed. It will be the second day in Committee on the Anti-social Behaviour, Crime and Policing Bill and it will not be the first day on Report of the Financial Services (Banking Reform) Bill.
That change and other agreed changes to our business over the next couple of weeks are reflected in the new edition of Forthcoming Business. I thought that it would be for the convenience of the House, particularly as we are about to go into recess, if I brought forward the publication of Forthcoming Business to today, rather than leaving it until tomorrow, so that the Convenor and the Chief Whips of all groups may send out that information as soon as possible. I am grateful to the noble Lord the Opposition Chief Whip for his co-operation in this matter.
Lord Bassam of Brighton (Lab)
My Lords, I thank the noble Baroness the Chief Whip for the Government for the gracious way in which she has dealt with this issue and record my thanks to her and the Government for responding positively and flexibly to our proposals to reorganise business. I hope that the House is happy with that, it having been somewhat unhappy at an earlier stage. This all helps to ensure that the usual channels work as well as possible for all concerned.