Criminal Justice and Courts Bill
(10 years, 5 months ago)
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(a) prosecution would not be in the public interest, or(b) prosecution for the offence would be inappropriate having regard to the circumstances of either the offender or the offence.”
Lord Marks of Henley-on-Thames (LD)
My Lords, the purpose of these amendments is twofold. The first purpose is to widen the discretion to give the cautions allowed by Clause 15, which, as your Lordships will know, is headed, “Restrictions on use of cautions”. I preface what I say by making it clear that I fully accept that it is desirable to be reasonably restrictive about giving cautions where normally a prosecution would be the proper response to an admission of guilt. That is of course particularly important where the offence concerned is a serious one. Yet the scheme of the Bill is to permit a caution only if there are exceptional circumstances relating to the person or the offence in three categories of cases.
The first category is in the case of indictable-only offences, where,
“a constable may not give the person a caution”,
unless it is,
“in exceptional circumstances relating to the person or the offence”—
I will call that the “exceptional circumstances” test—and,
“with the consent of the Director of Public Prosecutions”.
The second category of offences is of those triable either way which appear on a list of what one would expect to be the more serious offences. That would meet the “exceptional circumstances” test but it would be the constable who gave the caution and there would be no need for the consent of the Director of Public Prosecutions. The third category would deal with all other triable either-way offences—that is, those not on the serious list—and to offences triable summarily. The “exceptional circumstances” test would apply in those cases only to repeat offences: that is, offences that are similar to an offence for which the offender has been convicted in the previous two years. That leaves cautions available on an unrestrictive basis only in respect of those less serious either-way or summary offences which are, effectively, first offences of their type.
I suggest that the “exceptional circumstances” test is too restrictive; “exceptional” is a very strong word. An offence is not exceptional, for example, where it is a minor offence of its class or because the circumstances in which it was committed are otherwise such that a prosecutor might reasonably take the view that more harm than good would be done by prosecution. Dealing with the circumstances of the person, such circumstances would not be exceptional if a former recidivist is well on the way to rehabilitation and a repeat minor offence can be seen as an isolated lapse, where a prosecutor can reasonably and responsibly—and presently often may—take the view that a prosecution would serve no public purpose.
I start on these amendments from the position that there is no reason to undermine the traditional test for prosecutors and not to respect that test. That test requires, first, a likelihood of conviction and it is generally satisfied where there is an admission, as it is a precondition to giving a caution set out in this clause. However, the test also requires the prosecutor to be satisfied that a prosecution is in the public interest. I cannot see why, if that second-limb test is not met—so that a prosecutor does not think a prosecution is in the public interest—even in the absence of exceptional circumstances, the right to administer a caution should be removed and a caution should not remain within the range of possible actions to be taken where there is to be no prosecution. I suggest that there may be many cases—perhaps fewer, I concede, in the indictable-only category—where there has been an admission and a prosecution is inappropriate, and where a caution would nevertheless remain a sensible disposal. In such cases, I see no reason why a caution, which is often an effective disposal, should be available only in first-time summary offences unless the very high hurdle of exceptional circumstances can be surmounted.
The second reason for these amendments is that the decision-maker being provided for is, I suggest, wrong. The Bill provides, first, that the decision-maker in any indictable-only offence is to be the Director of Public Prosecutions, and that in any other case the decision-maker is to be the constable giving the caution. I suggest that the Bill has this wrong in both categories. Surely cautions should not generally be a matter for the DPP, even in indictable-only cases. It is of course likely that, even in indictable-only cases, a decision to caution instead of to prosecute will be taken in cases at the less serious end of the spectrum for that class of offence. It is surely not necessary that the DPP should be involved in a decision to caution in that case, wherever it occurs.
Lord Kennedy of Southwark (Lab)
My Lords, this group of amendments applies to Clause 15, which concerns the use of cautions. Cautions have been used for many years as an effective tool in the toolbox of the police officer and the criminal justice system in general, to give a proportionate response to low-level offending where the offender has admitted the offence. There have been issues where it looks as though cautions have been used for offences that look to warrant a more serious response. The public rightly get concerned about reports of cautions being used in cases of serious violence or sexual offences.
I should say first that the Opposition support the sentiments behind the clause. Our amendments in this group, and our intention to oppose that the clause stand part of the Bill, are just to ensure that there is a debate in your Lordships’ House and to probe and test the Government’s thinking on these matters at this stage. Depending on their response, we may want to bring some of this back on Report.
The amendments moved by the noble Lord, Lord Marks of Henley-on-Thames, were interesting and may prove to be a better way of dealing with the issues at hand. However, I do not want to come to a conclusion on that matter just yet; I want the issue probed much more in your Lordships’ House.
It would be helpful, certainly to me and perhaps to the whole House, if the Minister could set out in responding what he thinks the exceptional circumstances are. On the point made by the noble Lord, Lord Marks, about the public interest, I need to know what the difference is and where both noble Lords are on this question. If the Minister could give us some indication of that, I would be very grateful.
Will the Minister help me further? Clause 15(2)(b) talks about,
“the consent of the Director of Public Prosecutions”.
Will it be the DPP or his staff who decide these matters? If that is the case, is the noble Lord, Lord Marks, not correct that the regional prosecutor may be the right person to go to? His amendment may have some merit on this issue.
The amendment in the group tabled in my name and those of my noble friends Lord Ponsonby and Lord Beecham would insert the word “senior” before “police officer” in Clause 15(5). We still leave it as the decision of the Secretary of State to specify the rank by order, but putting the word “senior” in the Bill makes it clear that Parliament’s intention is that these important decisions to create an exception—to determine whether exceptional circumstances have to merit this decision—need to involve a senior officer.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I understand that I am speaking after my Front Bench friend, but I want to make a couple of points. I understand from the noble Lord, Lord Marks, that the general intent of this group is to lower the hurdles by which cautions would be administered as a whole. He set out very clearly a different approach, but I think it is right to say that it is a lowering of the hurdles as a whole. As he said in his introduction to the amendments, we have seen a reduction in the number of cautions which have been administered in recent years.
I want to make a point that I have made in other contexts. The Government have set up scrutiny panels to review the appropriateness or otherwise of cautions that have been put in place. I thank the Minister for writing to me about this scheme. There are various pilot schemes which are following models in different parts of the country. They are in their very earliest stages and do not cover the whole country. Therefore my question for the noble Lord, Lord Marks, is about whether it is a bit premature to bring these sorts of amendments forward, when we do not have a proper answer to the question about whether the scrutiny panels are properly reviewing cautions and whether the group of people who sit on those scrutiny panels are satisfied that cautions are being appropriately administered. We do not even know exactly how those scrutiny panels will report their findings, let alone what those findings are. I understand that this is a debating point and that these are probing amendments, but I wonder whether putting forward this alternative approach is a bit premature.
Lord Marks of Henley-on-Thames
I invite the noble Lord to deal with the proposition that his question ought to be referred to the Minister. Clause 15 is extremely restrictive of the use of cautions, and if it is premature to reform the rules for the use of cautions or the regime under which cautions are administered, as the noble Lord suggests, it is surely premature to reform it in the very radical, restrictive way proposed by Clause 15. The noble Lord is right to suggest that my amendments reduce the restriction, but at the same time they nevertheless preserve some restriction. The radical amendment is the new clause.
Lord Ponsonby of Shulbrede
I take the point the noble Lord has made. I was really seeing this in the wider context of not just cautions but of out-of-court settlements as a whole. As we know, in London, for example, there are many tens of thousands of out-of-court settlements. Many of them are not cautions but other forms of out-of-court disposals which should be addressed by the scrutiny panels as and when they are running. Nevertheless, the point the noble Lord, Lord Marks, made is a fair one, and I acknowledge it.
Lord Ahmad of Wimbledon (Con)
My Lords, although some of the contributions were about the group that follows and the stand part on Clause 15, I will speak to the amendments in this group. If noble Lords have any additional comments when we get to the next group, I shall cover the specific issues relating to Clause 15 at that time.
The amendments tabled by my noble friend Lord Marks, while well intentioned, would have a detrimental effect on how simple cautions are administered. It is only right and proper that cautions are given only when justified. Serious offences should be prosecuted and offenders should not be able to get off with a simple caution. It is therefore right that the decision to administer a simple caution is taken at the most appropriate level commensurate with the offending behaviour. The propositions set out in Clause 15 follow the review of simple cautions conducted by the Government last year and were developed in conjunction with the police and the CPS.
Perhaps I may refer briefly to Clause 15. It already creates the appropriate levels of authorisation based on the seriousness of the offence when deciding whether to give a simple caution. Amendment 21 would affect the provisions on indictable-only offences. The clause provides that a simple caution can be given only for such an offence where a police officer determines that there are exceptional circumstances and the Director of Public Prosecutions consents. The noble Lord, Lord Kennedy, asked for examples of exceptional circumstances and when it would be appropriate for the police to administer a repeat caution. I do not want to be drawn at this juncture into trying to determine what “exceptional circumstances” should or could mean. They are operational matters that would be unique to each case. However, there is specific guidance to this which is used by the police, and those factors are taken into account when determining where there are exceptional circumstances. Specific examples include the age of the offender, culpability, remorse and the mental health of the offender.
The rank of the police officer will be specified by order made by the Secretary of State. However, we anticipate that the order will specify the rank of at least superintendent. This mirrors the position in the current guidance on adult simple cautions. The amendment would remove the senior police officer from the decision-making process. In practice, the role of the DPP will be undertaken by the Crown Prosecution Service. The regional office of the CPS should be best able to determine for operational reasons who should make a decision about whether a simple caution for an indictable-only offence should be given, and it is not right that we should restrict this to the regional chief crown prosecutor. In practice, the chief crown prosecutor may well determine that the decision is his or hers to make, but we should not be so prescriptive as to set this out in legislation.
Amendments 22 and 23 would require the regional chief crown prosecutor to decide whether to give a caution for a specified either-way offence, and separately non-specified either-way and summary-only offences where the offender has been convicted or cautioned for a similar offence within the last two years. The clause as drafted makes it clear that these decisions must already be taken by a police officer of a rank specified by the order made by the Secretary of State. It is envisaged that the Secretary of State will determine that the decision to give a simple caution for a specified either-way offence will be made only by an officer of at least the rank of inspector. For non-specified either-way offences and summary-only offences, it is envisaged that an officer of at least the rank of sergeant will determine whether a simple caution should be given. Escalating all these decisions to the regional chief crown prosecutor would hugely slow down the decision-making process to administer a simple caution and would increase the burden of bureaucracy on both the police and the CPS. In difficult cases the police can always consult the CPS. It is also worth noting that the public interest test in Amendments 21 to 23 is already exercised by the police and, where relevant, the CPS under the existing guidance on simple cautions when determining whether to give a simple caution. It is also anticipated that revised guidance will require the public interest test to continue to be exercised in the same way, and therefore there is no need to replicate this in statute. It is a level of detail that is best set out in guidance.
Amendment 24 seeks to ensure that a senior police officer would determine whether there are exceptional circumstances such that a simple caution can be given where it otherwise would not be, and whether an offence is similar to a previous offence. It is only right and proper that simple cautions should be given only when justified. Serious offences should be prosecuted and offenders should not be able to get off with a simple caution. It is therefore right that the decision to administer a simple caution is taken at the most appropriate level commensurate with the offending behaviour.
Lord Kennedy of Southwark
Could the Minister reflect on the comments that he made earlier? I am sure that we will come back to this on Report. He talked about exceptional circumstances and the noble Lord, Lord Marks, talked about the public interest, but we need a bit more information rather than just saying that these are operational decisions. We may be poles apart here, or it may be nothing at all, but I want to test that further. Perhaps we can come back to that on Report.
Lord Marks of Henley-on-Thames
I suspect that the noble Lord, Lord Kennedy, has hit on the heart of this. I agree with my noble friend the Minister that it might have been sensible to deal in this group of amendments with Amendment 25 and the subject of the level of police officers. Perhaps, left as it is, we will deal with it later.
I suspect that my noble friend’s answer has not dealt with the gap that may exist between a prosecution that a prosecutor takes the view is not in the public interest and a case in which there are no exceptional circumstances, so that a caution is not available. My suggestion to the Committee is that there ought to be a choice between a prosecution on the one hand and a caution on the other. My noble friend has not dealt with the case whereby a prosecution is not in the public interest and a caution is not available under this clause because exceptional circumstances are not satisfied.
The other suggestion that I invite my noble friend to consider before Report is whether the test of exceptional circumstances, which the noble Lord, Lord Kennedy, mentioned, and which is dealt with in a number of cases relating to different statutes, is not simply too harsh, and that “contrary to the public interest” or “inappropriate prosecution” is a better test. But with those observations and knowing that my noble friend will consider it, I beg leave to withdraw the amendment.
Lord Marks of Henley-on-Thames
My Lords, as I suggested a moment ago, this amendment deals with matters that we dealt with in the previous group. It would omit the provision that it is,
“for a police officer not below a rank specified by order … to determine … whether there are exceptional circumstances for the purposes of”,
Clause 15. Therefore, the amendment really goes with the amendments that remove the requirement for there to be exceptional circumstances. It also goes with the view that I expressed in introducing the previous group of amendments—that it really ought not to be simply for the police to determine a question such as whether there are exceptional circumstances to justify prosecution, therefore meaning that there would not be a prosecution but there would be a caution. It ought to be the prosecutor who takes both decisions.
I shall speak also to Amendment 26, on which Amendment 27 is consequential, merely removing the passage providing for the affirmative resolution. Amendment 26 would remove subsection (7) which provides:
“The Secretary of State may by order amend this section so as to provide for a different period for the purposes of subsection (4)(b)”.
Subsection (4)(b) simply sets out a two-year period, which is the period within which a previous offence must have been committed. I fail to see how later experience will help the Secretary of State or anyone else determine whether two years is the right period. Given the experience of the criminal courts, the Committee knows whether repetition within two years is right. Experience is unlikely to change that because there is no doubt that an arbitrary period has been selected as in more cases than not it will be judged to be about right. In some cases, an offence committed three years ago ought not to be disregarded; in other cases, an offence committed a year ago ought to be disregarded. I simply do not understand why we should need an order-making power to change that two-year period.
Lord Kennedy of Southwark
My Lords, as I said on the previous group of amendments, we support this clause and the intention to oppose its standing part of the Bill is just a device to enable a debate to take place.
These amendments in the name of the noble Lord, Lord Marks, would remove the power of a police officer to determine whether there are exceptional circumstances under which an individual can be cautioned, and would also remove the power of the Secretary of State to change the period of time from the current two years which can be taken into account and counted as a previous conviction. It is important to provide a police officer with the ability to make this determination. I was pleased to hear the comment about a senior police officer being involved. The proposal to remove a power of the Secretary of State in this regard is not one that we are persuaded to support. However, I hope that the noble Lord, Lord Ahmad, will explain the intention behind these powers and the government process for determining whether they should be used. What parliamentary process will be used? It is important that there is adequate opportunity for robust challenge and scrutiny of what the Government are doing. I have no other remarks to add on cautions other than to say that there is concern about their use for indictable offences. We support the intention behind the clause.
Lord Ahmad of Wimbledon
My Lords, I thank my noble friend for tabling the amendment. I also thank the noble Lord, Lord Kennedy, for his general support in principle for the intention behind Clause 15.
Clause 15 places restrictions on the use of simple cautions by a constable. Simple cautions provide a means for a constable to deal with a person aged 18 or over who has admitted to committing an offence in England and Wales. A caution is primarily designed for dealing with low-level, mainly first-time, offending. While the use of cautions has been falling, it is clear that there are problems with how they are being used in certain circumstances.
The Government are clear that serious offences should always be brought to court. The Ministry of Justice publishes non-statutory guidance on how a simple caution should be used and the circumstances when a caution would not be considered appropriate. These provisions stem from the simple cautions review, which was itself prompted by public concern about the apparent misuse of simple cautions by the police for seemingly serious offending behaviour. The review set out to examine the way in which simple cautions were being used and consider the need for any changes to ensure that there continues to be public confidence in the use of simple cautions.
The outcomes of the review were published in November last year and concluded that simple cautions should not be used for indictable-only offences and certain serious either-way offences. These include possession of a knife, offensive weapon or firearm in a public place, offences involving child sex abuse or child pornography, and supplying Class A drugs. The MoJ guidance on the use of simple cautions was updated as a result and provides that a simple caution should be given for these offences only where a senior police officer believes that there are exceptional circumstances. I heard what the noble Lord, Lord Kennedy, said about further discussions on this. I am sure that we will have further detailed discussions on definitions.
The guidance also makes it clear that for all other offences a simple caution should not be given where a person has been convicted or cautioned for a similar offence in the past two years. The Government have now decided to put these restrictions on the use of simple cautions on a statutory footing. This clause therefore provides that a simple caution may not be given for indictable-only offences, unless there are exceptional circumstances to be determined by a senior police officer, and the Crown Prosecution Service also needs to consent.
This clause also provides that a simple caution may not be given for certain serious either-way offences unless there are exceptional circumstances to be determined by a senior police officer. The list of serious either-way offences subject to this restriction will be set out in secondary legislation. Furthermore, for the remainder of either-way offences and all summary-only offences, the clause provides that a simple caution may not be given where the offender has been convicted or cautioned for a similar offence within the previous two years, unless there are exceptional circumstances. The clause provides for the minimum rank of a senior police officer who determines whether there are exceptional circumstances and whether the previous offence was similar to be specified in secondary legislation. The two-year period between current and previous offending behaviour may also be amended by secondary legislation.
Our priority is to stop the cycle of reoffending and ensure that serious offences are dealt with by the most appropriate method. Criminals should not get caution after caution for committing the same offence time and time again, often for serious offences. The public needs confidence that cautions are being used appropriately. This clause helps ensure that this happens and will provide clarity for front-line practitioners. In developing these proposals we have worked carefully with the police and prosecuting agencies to ensure that simple cautions are used effectively and appropriately. The clause should therefore stand part of the Bill. I give this explanation in order to highlight some of the detailed reasons for the Government’s thinking behind Clause 15.
Amendments 25, 26 and 27 would remove the Secretary of State’s power to specify, by way of order, the minimum rank of police officer who will take certain decisions. The amendments also remove the Secretary of State’s power to change the two-year period when considering previous offending history in relation to non-specified either-way offences and summary-only offences. By tabling Amendment 25, my noble friends Lord Marks, Lord Dholakia and Lady Hamwee would remove the power to specify by order the minimum rank of police officer who may determine exceptional circumstances—for example, when giving a simple caution for an indictable-only offence or a specified either-way offence, and when giving a simple caution for a non-specified either-way offence or summary-only offence where the offender has been convicted or cautioned for a similar offence in the past two years. This means that there would be no restriction as to the rank of officer that would be able to make these decisions under Clause 15(2)(a), 15(3) and 15(4). This would mean, in effect, that the most difficult decisions as to whether to administer a caution for the most serious offences, and for repeated offences, could be taken by the most junior constable. This plainly cannot be right.
The simple cautions review made specific recommendations on the rank of officer that ought to take certain decisions. These recommendations were taken forward in the revised guidance on simple cautions, published by the MoJ on 14 November last year. It is anticipated that the order-making power, exercisable by the Secretary of State in relation to determining the rank of officer who can make such decisions, will replicate the provisions of the guidance. Namely, a superintendent or rank above will need to make the decision that exceptional circumstances exist so as to give a simple caution for an indictable-only offence. In addition, an inspector or rank above will need to decide that there are exceptional circumstances that justify giving a simple caution for a specified either-way offence or for a non-specified either-way offence or summary offence where the person has been convicted or cautioned for a similar offence in the past two years. It is important that we are clear on who can make these decisions and that there are restrictions on it.
Amendments 26 and 27 would remove the ability of the Secretary of State to amend the two-year period within which repeat cautions should not normally be given in relation to non-specified either-way and summary-only offences. This is a necessary provision. We are basing the two-year period on the same period set out in the guidance published by the MoJ that currently determines how simple cautions for such offences should be given. There may in the future be reasons to extend or, indeed, shorten the time period. The Government may wish to determine that repeat simple cautions should not ordinarily be given unless there are exceptional circumstances within a five-year period or, conversely, within a one-year period. This is the first time that we are placing statutory restrictions around the use of simple cautions, and there needs to be flexibility in order to ensure that the restrictions work properly. It is also worth noting that any such order made by the Secretary of State amending the time period must be made by the affirmative resolution procedure, and so Parliament will have a say in any change proposed.
I know that I have given a rather detailed explanation of the Government’s position but, in doing so, I hope that I have given enough reassurance and detail that my noble friend will be minded to withdraw his amendment.
Lord Marks of Henley-on-Thames
My Lords, I am grateful to my noble friend for his detailed explanation as to why the Government resist Amendment 25, particularly since I hope I made it clear that the amendment is effectively contingent on the “exceptional circumstances” test not being adopted and on the police not being responsible for the decision-making. I fully accept that, if that test stays and if the police are to make the decision, then a senior officer should be in charge.
I also make it clear by repetition that I, along with the noble Lord, Lord Kennedy, fully accept, as I said at the outset of the previous group, the need to be restrictive about giving cautions where normally a prosecution would be the proper response to an admission of guilt; I accept his point that that is the more important in serious cases. My question to the Government, which was echoed by the noble Lord, Lord Kennedy, is simply whether “exceptional circumstances” is the right test, and how it is to be administered. I appreciate the indication that there will at least be discussions that take this forward. On that basis, I beg leave to withdraw the amendment.
Lord Faulks
“Alternatives to prosecution: rehabilitation of offenders in Scotland
In Schedule 3 to the Rehabilitation of Offenders Act 1974 (protection for spent alternatives to prosecution: Scotland), at the end insert—“9 (1) The powers conferred on the Scottish Ministers by—
(a) paragraph 6, and(b) section 7(4), as applied by paragraph 8, may be exercised to make provision relating to reserved matters and are not subject to the restrictions imposed by section 29(2)(b) or (c) of, or Schedule 4 to, the Scotland Act 1998.(2) In this paragraph, “reserved matters” has the same meaning as in the Scotland Act 1998.””
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, this amendment is required in order to address a legal competence gap that has been identified by the Scottish Government in relation to the exercise of enabling powers in Schedule 3 to the Rehabilitation of Offenders Act 1974, to which I shall refer as the 1974 Act. Following on from the Children’s Hearings (Scotland) Act 2011, the Scottish Government would like to legislate to specify occasions when the normal rules relating to the disclosure of spent alternatives to prosecution from a children’s hearing should not apply.
To achieve this, the Scottish Government need to exercise powers in Schedule 3 to the 1974 Act to specify the types of employment and proceedings that are excluded from the protection of the 1974 Act and, therefore, where a person may need to disclose a spent alternative to prosecution. These powers can be found in paragraph 6 of Schedule 3 and Section 7(4) as applied by paragraph 8 of Schedule 3 to the 1974 Act.
Scottish Ministers already have the power to legislate in respect of exceptions and exclusions relating to spent convictions in reserved areas. However, because paragraph 6 and paragraph 8 of Schedule 3 were inserted into the 1974 Act by an Act of the Scottish Parliament, these provisions cannot be exercised to make exclusions, modifications or exceptions in relation to reserved subject matters.
A transfer of functions order, as was made in 2003 in relation to convictions, cannot be made here because the relevant powers were conferred on the Scottish Ministers by an Act of the Scottish Parliament rather than on a Minister of the Crown by a Westminster enactment. Therefore, the amendment will insert a new paragraph into Schedule 3 to the 1974 Act which will state that Scottish Ministers can exercise the powers in paragraph 6 and Section 7(4) as applied by paragraph 8 without the relevant restrictions in Section 29 of the Scotland Act 1998. This will allow the Scottish Ministers to set out exclusions, modifications and exceptions in relation to alternatives to prosecution which are given by children’s hearings in Scotland in the desired way.
The amendment is an important step in helping the Scottish Government to implement their policy concerning the rehabilitation of child offenders and shows how this Parliament can demonstrate its ability to legislate effectively for Scotland. I hope that the Committee agrees that this is a sensible and pragmatic solution and that noble Lords will support the amendment. I beg to move.
Lord Beecham
“Stop and search of children below the age of 10
In section 1 of the Police and Criminal Evidence Act 1984 (power of constable to stop and search persons, vehicles etc.), after subsection (2) insert—“(2A) Where the person is below 10 years of age, an appropriate adult must be present before the search may be undertaken.””
Lord Beecham (Lab)
My Lords, this amendment was provoked by a disturbing article in the Guardian on 1 July, based on the recently published report of the inquiry into children and the police by the All-Party Group on Children, chaired by my noble friend Lady Massey. It appears that, in 22 police forces that replied to a request for information, 1,136 children under the age of 10—well below the age of criminal responsibility —were subject to stop and search between 2009 and 2013. The Met could not supply figures for 2009-11. The number of children under the age of 18 subject to this process across 26 forces exceeded 1 million.
There have been reports on this issue in the past, including one in November 2009 relating to children from BME backgrounds, and one in January 2010 on searches of 11 year-olds. In January this year, it was reported that 500 such searches had been carried out in Scotland on children under the age of 10, including 72 on children aged only seven or younger. It is apparent that there is no effective code of practice governing the carrying out of such searches, or even of properly recording them. For example, police forces were unable to say how many looked-after children had been stopped and searched. Some forces do not even record a child’s name, address and date of birth, although some do. Only 20 of the forces had separate custody facilities for children in their police stations.
The Home Office has reviewed stop-and-search powers, but the all-party group’s inquiry suggested a number of improvements relating to the collection of data, including ethnicity, and specific guidance on safeguarding and child protection, especially for vulnerable children in care or at risk of abuse or exploitation. When a child is taken to a police station for the purposes of a search, he or she has a right to have a parent present. Some forces make an effort to take a child home before searching.
The Bill contains a welcome provision in Clause 20 to require an appropriate adult to be present when a caution is given to an offender under the age of 17. The amendment, which is designed as a probing amendment, would extend that principle to stop and search so that an appropriate adult would have to be present, particularly during the search. The stopping is not necessary something an appropriate adult would be present for, but the search, which is a more personal intervention, should be in the presence of an appropriate adult. As it stands, the amendment applies to children under the age of 10, but perhaps thought should be given as to whether that age remains too low—after all, it is below the age of criminal responsibility. In Scotland, consensual searches—searches the child simply agrees to—will now no longer be carried out on children aged under 12.
I hope the Minister will agree to consider this amendment and come back on Report possibly with an improved version. It seems important that this process, if it has to be undertaken, should be undertaken in as sensitive a way as possible, preferably in the presence of a parent, but, if not, at least of an appropriate person independent of the police force. I hope the Minister will look kindly on the suggestion and perhaps work with the Opposition to see whether we can reach an agreed position on it. I beg to move.
Lord Faulks
My Lords, I am grateful to the noble Lord, Lord Beecham, for drawing the Committee’s attention to this issue. The purpose of the amendment is to extend the safeguards provided in PACE codes of practice C and H, covering custody procedures, to provide children under the age of 10 with an appropriate adult in public settings where a stop and search is carried out. While this is a laudable aim, the Government do not consider the amendment desirable, as we consider the existing provisions in law and codes of practice are sufficient for the purposes of ensuring that children are treated appropriately. For instance, there are already important safeguards attached to Section 1 stop and searches. These include the obligation on the police to provide key information to the person being searched about the purpose of the search and the grounds for searching, and ensuring that the person subject to the search understands the procedure. In addition, a person can be detained for the search only for as long as is reasonably required to allow the search to be carried out. Therefore, the period of time for which an individual can be held for the search is strictly limited and proportionate.
Indeed, in terms of the time that individuals are detained, were there to be a requirement for an appropriate adult to be called in a stop and search context, this would require the police to arrange for provision in all public settings and at all times, which would entail detaining children for significant and disproportionate periods of time. This would also mean a significant strain on police time and resources.
There is also Section 11 of the Children Act 2004, which places the police under an obligation to make arrangements to safeguard and promote the welfare of children when exercising their functions. The statutory guidance accompanying this duty requires the police to ensure that appropriate training is in place to enable police to deal appropriately with children.
In respect of the police’s use of stop and search, those are just some of the safeguards in place which apply to children, and they are entirely appropriate given the nature of the procedure.
The principal function of an appropriate adult is to explain and demystify the criminal process at the police station following arrest and detention. For example, the police interview, the meaning of the caution, the individual’s rights within the police station context and so on would need to be explained. However, these considerations do not apply to a brief stop and search encounter, which is about confirming or allaying a police officer’s reasonable suspicion that an individual may be in possession of something they should not.
I am aware that this proposed measure was mentioned in the recent All-Party Parliamentary Group for Children report on children, published this month. The group’s initial report stated that,
“APPGC Officers will continue to consider recommendations on the stop and search of under-10s for our final report, including ... whether”,
stop and search,
“should only occur in the presence of an appropriate adult, carer or parent or in the family home”.
In answer to the noble Lord, the Government will consider the group’s conclusions in its final report on this matter, but for now, without adequate consideration and consultation, we are not convinced that this measure should be introduced in legislation.
Finally, on 30 April, as the noble Lord said, the Home Secretary announced a comprehensive package of measures designed to reform the way that stop and search is used. The measures are designed to ensure that these powers are used fairly and effectively and in a way that engenders community confidence. These measures should impact positively on all sections of the community, including children. For these reasons, I respectfully ask the noble Lord to withdraw his amendment.
Lord Beecham
My Lords, I confess to being somewhat disappointed by the Minister’s response. We are talking here essentially about very young children, and much of what he said would be relevant certainly to adults and possibly to adolescents, but children aged 10 or under will be going through a process that is not systematic and with apparently no clear national guidance on how these things are to be conducted. Indeed, as I said, the fact that even the recording of what has happened is not uniform suggests that there is certainly a need for a coherent code. I also still urge consideration to be given to the suggestion in the amendment that an appropriate adult be available, particularly for younger children.
I do not know what timescale the Minister envisages for the production of any further guidance or indeed how long it will take the APPG to produce a second report. However, even if it is not possible before Report to reach a conclusion on whether the parliamentary group believes that it is necessary to amend the Bill, I hope that we can emerge from this whole process with a coherent approach in which the issues that the APPG has raised are addressed and in which legislation or guidance is uniformly adopted by all relevant agencies, including of course the various police forces.
I particularly invite the Minister to look at the Scottish experience. Scotland has taken a very clear decision, which is in any event quite different from the one that we now apply here. I hope that there will be some conversation with interested agencies north of the border, irrespective of the outcome of the referendum, in order to ensure that the best possible practice is implemented when we are dealing with children of this age in England and Wales. Having said that, I beg leave to withdraw the amendment at this stage.
“( ) It is an offence for an individual who has the care of another individual by virtue of being a care worker to ill-treat or wilfully neglect that individual in a way that amounts to a serious and substantial departure from the duty owed by the care worker to the individual in all circumstances and causes the avoidable death of, or serious harm to, that individual.”
Baroness Finlay of Llandaff (CB)
My Lords, Clause 17 creates a new offence of ill treatment or wilful neglect that is likely to result in hundreds of additional criminal investigations of healthcare professionals, including doctors. The problem is that Clause 17 does not indicate a threshold for the offence against the individual care worker. The Medical Defence Union, which has 128 years’ experience defending healthcare professionals, the Royal College of Physicians, of which I declare that I am a fellow, the BMA, of which I am president, and the Foundation Trust Network are all concerned about this. There is a concern that the police would have little option but to investigate any doctor accused of ill treatment or wilful neglect, even in those cases where charges or prosecution might appear unlikely.
The Department of Health’s consultation that preceded the proposal for the new offence suggested that it would apply only where the alleged crime was so severe that it would merit a criminal sanction over and above any action taken by a regulator, such as the General Medical Council for doctors. The Department of Health has consistently suggested that only the more serious instances of such ill treatment or neglect would give rise to the prosecution of care workers. My concern is that this is not clear in the way in which Clause 17 is worded.
Clause 18 would create a similar offence for organisations providing care. It specifies that for the offence to apply the,
“provider’s activities are managed or organised in a way”,
that means there is,
“a gross breach of … duty of care”,
that the provider owes to the individual. Clause 18 appears to envisage the offence applying only where the conduct alleged falls far below what can reasonably be expected of the care provider, so there is a threshold.
These specifications appear absent from Clause 17. The practical effect of the difference between the two clauses is that the threshold for an organisation is far higher than that for the individual worker. It is of particular concern for doctors because, if allegations of ill treatment or wilful neglect are made to the police, it is very likely that, in the absence of Clause 17 specifying a higher threshold, there would be very little option but to investigate.
If, as the Department of Health suggests, the aim is to prosecute only the most serious cases, the threshold in Clause 17 should indicate where the proper level of criminality lies. To achieve that, the amendment suggests that a threshold similar to that of Clause 18 is built into Clause 17. In addition to the offence applying where there is ill treatment or wilful neglect, it should be necessary for that to represent a gross breach of the care worker’s duty of care to the individual.
Let me illustrate that with a fictional scenario, although it is based on a realistic type of incident that could easily happen and could give rise to such allegations. A patient is terminally ill and becoming restless. The doctor intends to prescribe a dose of pain relief for breakthrough pain and something for the restlessness, and the family knows that. However, the doctor is suddenly called away to a young man who is in a peri-arrest situation. He was admitted as an emergency with suspected meningitis. The doctor is then called to resuscitate another patient in an adjacent bed. That resuscitation is successful, so she is there for much longer than she would have been if it had been unsuccessful. By then, the results have come back on the man who has been confirmed as having meningitis and she is involved in instigating life-saving treatment. She then rushes back to the ward to find that the terminally ill patient has died without having received the additional analgesia or drugs for agitation that she had intended to prescribe at the point at which she was called away.
The family, understandably distraught, contact the police and allege that the doctor wilfully neglected their mother. As well as the hospital inquiry and a GMC referral, the police then have to investigate the doctor for wilful neglect. If that doctor is then suspended because there is an ongoing investigation, which could take up to six months, the hospital will have to employ a locum. Even if the police conclude that the investigation is not founded and do not bring any charges, the GMC concludes that there are no grounds for referral for fitness to practise and the hospital exonerates the doctor, that doctor has been out of the workforce during the investigation. She may be so seriously damaged by having tried to do her job to the best of her ability but appearing to fail, she may well think twice about continuing in medicine. We know that that is a problem now with some young doctors who find the stresses so great that they are opting out.
Throughout England and Wales there is a prosecutorial discretion, and if a new criminal sanction of wilful neglect is introduced without any indication of the threshold at which it should apply to individual practitioners, it is worrying. I suspect that scenarios not dissimilar to the case that I have described will happen, and not infrequently. They will principally affect both doctors and nurses. If the intention is that the sanction should be applied only in the severest of cases, and I believe that that is what the Department of Health intends, that should be clear in legislation. If it is not, another unintended consequence is that it could jeopardise transparency and candour, which goes in absolutely the opposite direction to the policy intention.
There are other amendments in this group which I support and will speak to only briefly. The inclusion of volunteer work is important because there are an increasing number of doctors who have retired and who are working as volunteers with groups such as asylum seekers and refugees. In fact, they have another problem already because they do not get tax relief against their NHS pensions for this completely voluntary work, even though they have to pay their GMC registration and maintain their defence union subscription. They are quite severely out of pocket to the tune of many hundreds of pounds for what you could say was the pleasure—indeed, they do it out of vocation and for job satisfaction—of working as volunteers with these very hard-to-reach and deprived people who are in difficult situations. They are often dealing with victims of torture. These doctors are not doing easy work as volunteers.
The other amendment in this group makes it clear that the concept of clinical judgment should be included. That becomes extremely important. There is a lot of guidance now within clinical practice, but it is only that: it is guidance and not as firm as a lot of people think. It is often based on the best research evidence available, but in every case it has to be interpreted for the individual. At the end of the day, it comes down to considered clinical opinion. One would hope that every doctor weighs things carefully in the balance and comes to a considered conclusion about what they are doing, but it would be damaging to patient care if that interpretation of guidance were jeopardised and there was a formulaic approach to the management of patients by imposing a risk-averse approach. We have seen the dangers already when you end up with a protocol-driven approach rather than an interpretation of guidance. We saw disasters with the Liverpool care pathway, which was well intentioned but poorly rolled out and so forth. I hope that the Government will also accept that concept of clinical judgment. I beg to move.
Baroness Barker (LD)
My Lords, very rarely for me, I want to disagree with the noble Baroness, Lady Finlay. We usually bat on the same side, but not tonight. My reason for disagreeing is quite simply that these provisions in the Bill have come about because of the considerable amount of work done by my colleague Paul Burstow. He came up with these proposals in consultation with people who had been well and truly at the coalface of the investigations into Mid Staffs and Winterbourne View. They have not been drawn up lightly.
I disagree with the starting point of the case that the noble Baroness put forward. She said that these provisions will inevitably lead to hundreds of investigations of doctors. However, that will only be if there is reason to investigate. Her amendment would severely undermine the deterrent effect of this legislation. The first part of Clause 17 says:
“It is an offence for an individual who has the care of another individual by virtue of being a care worker to ill-treat or wilfully to neglect that individual”.
That is a very powerful statement, and some of us are already beginning to be involved in training people within the health and social care field. We are already beginning to discuss the issues with people who run charities, asking them whether they know that this piece of legislation is coming along. It is beginning to have quite a profound effect on people about what they are supposed to do.
I have to take issue with the noble Baroness’s amendment where it goes on to add another three lines to the end of that subsection and to introduce two tests. First, it says somebody has to act,
“in a way that amounts to a serious and substantial departure from the duty owed by the care worker to the individual in all circumstances”.
I can understand that, although I am not exactly sure what it adds. However, the bit that I really find wrong is where it adds,
“and causes the avoidable death of, or serious harm to, that individual”.
One of the reasons Paul Burstow drafted his proposals as he did was the recognition that it is very rare for any health or social care provider suddenly to become a dreadfully malevolent or neglectful place. Usually, when there is bad practice, it is the accretion of pressure, slipping standards and lack of good management that bit by bit builds up to the point where people are unsafe. Part of the reason for framing this as it is was to tackle that sort of stuff, which can be devastating in its own way. We are talking not just about the physical health of people but their mental health. It was to cover that as well.
I will simply say to the noble Baroness that I understand where she is coming from and the bodies whose views she is representing to us. There is already a great deal of legislation under which members of the medical profession can find themselves the subject of an inquiry for misconduct; that really will not change. Although her amendment in particular—there are others in this group—would not fatally undermine this clause, it would put a huge dent in it and introduce a fair amount of, dare I say it, wriggle room for medical defence lawyers to get somebody off the hook. I may be wrong, and she may be proved right, but on balance what this clause does as written is to plug the gap that there has certainly been in social care, if not in the NHS, whereby front-line workers carried the can and those who were in positions of trust and oversight walked away when they should not have done. On balance, I do not accept her argument. No doubt the Minister will reply to it.
Baroness Finlay of Llandaff
Perhaps I might clarify. I certainly agree that mental harm is as serious as physical harm. I do not differentiate between the two. The problem is that there seems to be a different threshold between the two clauses, and I did not hear anything in what the noble Baroness said to point out that there was the same threshold between the two clauses. My concern is that, in the example I gave, the junior doctor would be the one who would take the rap. The organisation may have been disorganised and overstressed its staff and expected them to work unrealistically, but its threshold is set differently, and that is my concern.
Baroness Barker
That is exactly the point that Paul Burstow was trying to cover. If you back into that, I think you will find that the fears the noble Baroness is raising are addressed by looking at all of this section in totality.
Lord Beecham
My Lords, I will briefly mention Amendment 33, which I tabled in the light of representations from the Medical Protection Society over a range of issues. It struck me in particular that it was important to offer protection to registered medical practitioners who are exercising their clinical judgment, as opposed to other matters that they might, as it were, stray into. But where it is a matter of clinical judgment, that should surely be a defence which would displace the possibility of a prosecution for the range of offences set out in Clauses 17 to 22. I hope the Minister—I take it that it will be the noble Earl, Lord Howe, who will be dealing with this—will agree that it is important to protect clinical judgment in that way and that this amendment will be acceptable to the Government.
Lord Kennedy of Southwark
My Lords, at Second Reading I made reference to this and other clauses in this section of the Bill. I said I believed that the Government were attempting to,
“close the loophole that Professor Don Berwick identified in his review of the events that took place at the Mid Staffordshire NHS Foundation Trust”,—[Official Report, 30/6/14; col. 1620.]
although of course these amendments have much wider implications for a wider group of employees looking after vulnerable people, as the noble Baroness, Lady Finlay, outlined. These clauses were added late to the Bill during its passage through the Commons and I do not believe that they were looked at in any great depth there. As I said at Second Reading, it seemed odd to me that volunteers were not also included in these clauses, so I hope the noble Earl can address that in his reply.
We have wonderful people working in the caring professions here in the UK and we have wonderful volunteers helping people, but we must be clear that an abuser who exploits people could easily be in either group. Look at the horror story of the actions committed by Jimmy Savile. He was a volunteer at numerous establishments that were caring for vulnerable people. He was never an employee at any of the hospitals he visited but it appears he had power, influence and keys, and the system in place failed his victims for decades.
There is always the risk of unintended consequences and we need to be very careful that these clauses do not create a culture where healthcare professionals would have their normal, everyday clinical decisions open to criminal investigation, as the noble Baroness, Lady Finlay, and my noble friend Lord Beecham outlined. I do not for one minute believe that that is the intention of the Government but we have to be very careful that that is not what is created or what people believe has been created. So the amendment moved by the noble Baroness, Lady Finlay, is very welcome as she attempts to bring clarity to the issues and talks about,
“a serious and substantial departure from the duty owed by the care worker to the individual in all circumstances”,
that,
“causes the avoidable death of, or serious harm to, that individual”.
For the same reasons, my noble friend Lord Beecham and I tabled Amendment 33, which makes it clear that clinical medical judgment exercised by a registered medical practitioner is excluded.
These are very serious matters. I hope that the Minister can address the points that I have made about volunteers and the whole question of the sanctions being applied only to the most serious cases, as well as those about harming transparency and improving excellence in care made so well by the noble Baroness, Lady Finlay, and my noble friend Lord Beecham.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, I am grateful to the noble Baroness, Lady Finlay, and both noble Lords for tabling these amendments, which give me the opportunity to explain the Government’s thinking behind these important new offences of ill treatment or wilful neglect.
The Government are clear that the ill treatment or wilful neglect of users of health or adult social care services by an individual paid to provide those services is never acceptable. It is for this reason that we accepted the recommendation of Professor Berwick and the National Advisory Group on the Safety of Patients in England to introduce a new, clear and specific criminal sanction for those guilty of ill treatment or wilful neglect. However, Professor Berwick’s original recommendation proposed that the offence should apply only in the most egregious cases, where the ill treatment or wilful neglect caused “serious harm or death”—in effect, a harm threshold. Amendment 30 would create a similar threshold by requiring both a “serious and substantial” departure from a care worker’s duty towards the victim and that the conduct must cause serious harm or avoidable death.
When we were developing these new offences, we gave careful consideration to these very issues. For us, it raised a number of difficulties. For example, if you set a harm threshold, you are effectively saying that any ill treatment or wilful neglect that fails to cause sufficient harm to meet that threshold can be tolerated. Similarly, a situation could arise where two people are subjected to the same behaviours by the same care worker with the same intent, but one is much more seriously harmed than the other. I cannot see how it can be fair that the lesser harmed victim cannot have the protection of the new offence simply because they have been fortunate enough not to suffer really serious harm.
We exposed these very concerns in our consultation on the formulation of the offence earlier this year. The overwhelming majority of those who responded supported our proposal that the offence should focus on the conduct of the care worker, not on the outcomes for the victim. The way in which the noble Baroness’s amendment is framed puts the focus of the offence back on to outcomes. Someone could be subjected to wholly unacceptable ill treatment or wilful neglect but the perpetrator could have a defence if they could show that their conduct did not meet the “serious and substantial departure” threshold of the noble Baroness’s amendment, that the harm suffered was not sufficiently serious or that the victim’s death was unavoidable.
I also have some concerns about that phrase “serious and substantial”. Guaranteeing an objective and consistent interpretation seems to be fraught with difficulty. I fear that care workers could find themselves with less certainty about when the offence might bite, rather than more.
This brings me to the other point I want to make in respect of Amendment 30. It relates to the imaginary case study that the noble Baroness put before us. We recognise that it is important that there should be clarity around the types of behaviours which will be captured under this offence, and I understand the concern expressed by some that, without this, there is a risk that care workers could be less willing to be open and honest when things go wrong.
There are a number of issues to consider here. First, and most importantly, it must be remembered that the underlying premise on which the offence is predicated is that any neglect must be wilful; that is, deliberate, or else completely reckless as to whether the conduct will cause harm. In the case of ill-treatment, the courts have interpreted this as being ill-treatment that was intentional or reckless. I can assure the Committee that this is in practice a high bar to get over. Demonstrating that that is the case to the standard of proof required in criminal law will not be easy. Nor do we want it to be. We know that the vast majority of care workers would never dream of setting out to ill-treat or neglect those in their care. In the example given by the noble Baroness, a balancing of priorities is taking place. The offence would not cover that situation, but accidents and genuine mistakes do happen, and we have formulated the offence to make it clear that such situations will not be captured by it, no matter how serious the outcome may be for the patient or service user. Care workers need have no fear that being open and honest when such an accident or mistake occurs will place them at risk of prosecution under the offence.
Other safeguards will be in place, besides the fundamental protection given by the formulation of the offence itself. As with a whole range of criminal offences, the Code for Crown Prosecutors means that a public interest test will have to be met before a prosecution is brought. Moreover, even in the unusual event of an alleged victim or their family deciding to pursue a private prosecution, the care worker has protection. They can exercise their right to refer the case to the Director of Public Prosecutions for scrutiny, who will have discretion to take over the case and close it down.
With regard to Amendments 31 and 32, I am aware that in his remarks at Second Reading the noble Lord, Lord Kennedy, raised the issue of whether the ill-treatment or wilful neglect care worker offence should include volunteers. We considered that very carefully during the development of these offences. Indeed, we again addressed the issue directly in the consultation in March. We know, of course, that it is not only formally employed care workers who can ill-treat or wilfully neglect those in their care. Sadly, it can happen in many situations, as the noble Lord rightly pointed out, but his amendments would bring a vast number of people within scope of the offence because “volunteer” has a wide interpretation. Family carers; people who provide assistance to friends or neighbours by, for example, taking them shopping or to medical appointments; people who help out in nursing homes at meal times; volunteer patient transport drivers—all such people, and more, would be caught by the amendments.
Our view is that there is a significant difference between those employed to provide these services and those who do so voluntarily. Paid arrangements give rise to a formal obligation to provide services to a reasonable standard. That represents a significant and important difference from informal arrangements, where there is no element of prescribed obligation. I am sure that it is not the intention to make subject to the criminal law all those people who, from the goodness of their hearts, are willing to give of their time and effort to help others.
I would add that we do already have in place arrangements to provide safeguards in such situations. For example, the Care Act 2014 includes provisions explicitly relating to the powers and duties of local authorities to assess and meet the needs of informal carers, such as friends and family carers. Moreover, where an individual is volunteering in, for example, a day centre or nursing home, there are nowadays statutory duties on the operators of those facilities to carry out appropriate checks on the suitability of the individual to do that work and ensure that they receive training in health and safety, safeguarding and other procedures necessary to provide protection for the users of that service. It is no longer the case that someone could just walk in off the street, offer their services and come immediately into contact with vulnerable patients or service users.
It is the Government’s view that these arrangements provide adequate safeguards in these specific circumstances in a far more proportionate way than applying this offence would do. The latter would also risk putting people off volunteering for fear of prosecution, however unlikely that prosecution might be in practice.
I turn finally to Amendment 33. Although I can readily understand the motive behind it, I have to say that I cannot agree that it is necessary, even on the “for the avoidance of doubt” basis which the amendment adopts. We have been clear from the outset that matters involving the exercise of informed clinical judgment by any healthcare professional, not just registered medical practitioners, should be outside the scope of these ill-treatment or wilful neglect offences. We addressed this explicitly during the consultation exercise and the offences have been formulated to ensure that this is the case. I reiterate my earlier remarks about the key element being that of wilfulness. There has to be intent to ill treat or neglect, or recklessness as to whether the perpetrator’s actions or omissions will cause ill treatment or neglect, for the offence to bite. For a surgeon making decisions about the relative priorities of two patients or the best course of treatment for a particular condition, the implications and effects of their decisions will be uppermost in their minds. They will be all too aware that their decision may cause further delay or discomfort in the short term, even though the longer-term outcome may be better, but in taking these sorts of decisions healthcare professionals are not deciding deliberately to ill treat or neglect. They are taking decisions in what they believe to be the best interests of the patient, taking into account other priorities. I cannot see how a doctor who can demonstrate that they have followed appropriate clinical practice and professional standards in exercising their clinical judgment would fall prey to this offence.
Lord Beecham
I can quite understand the Minister saying that he cannot see that. However, is there not a danger that members of the public will not see it that way? If this amendment were to be adopted, it would send a clear message to the public that clinical judgment is outside the scope of the general provision. Is that not something worth achieving? I cannot see that it costs anything in terms of the Government’s policy and its implementation. However, it sends a clearer signal not just to the profession but to those who might feel that they should have recourse to the law when it has resulted from clinical judgment. It would be better to make that clear from the outset in the legislation.
Earl Howe
I come back to my earlier point: the bar is set high here because wilful neglect has to involve ill treatment that was intentional or reckless. The courts have traditionally interpreted that in a very narrow way, which is as it should be. I say this again and on advice: we do not believe that a doctor exercising his or her clinical judgment would fall within the scope of that offence.
I should make a couple of other points here. Amendment 33 refers only to “a registered medical practitioner”. The implication of that would be that other types of healthcare professionals exercising clinical judgement would not be excluded because they are not specified. So, for example, a triage nurse working in an A&E department would have very reasonable cause for concern about the kind of clinical judgments that they have to make perhaps not being outside the scope of the offence, because they are not explicitly mentioned in the Bill. Clearly, I would not want to create that kind of confusion and I am sure that the noble Lord would not either.
I hope that I have been able to demonstrate that the Government have worked hard to ensure that a whole range of issues and concerns were properly considered in the formulation of the new offence of ill treatment or wilful neglect. In particular, I hope that I have been able to reassure the noble Baroness and the noble Lords on their specific concerns and that she will now feel able to withdraw her amendment.
Baroness Finlay of Llandaff
I am grateful to the Minister for such a full response to the amendment that I moved and to the other amendments. For the record, I make it absolutely clear that ill treatment or neglect is never, ever acceptable by anybody. I am certainly not trying to make wriggle room for anybody. It is clear in the way that this debate has gone that it is about the intention of the worker, and if they were badly intended—if they had mal-intent—then they should duly be picked up and indeed suffer the consequences of the harm that they may have inflicted.
I hope, though, that the Minister will consider that the guidance that goes with this needs to set out clearly the issues that we have debated today, as well as the point raised just now by the noble Lord, Lord Beecham, which relates to all the clinical professionals. As the Minister has just said, it is not just doctors; it will be nurses, physiotherapists and lots of others who will be exercising clinical judgment. There is something important about being clear that clinical judgment has an important role because of the message that it gives to the public, who may feel vexatious against the outcome of a well intentioned clinical judgment that, for whatever reason, just did not go right—not even that a mistake was made but just that the disease process, their expectations and the way that they interpreted the communication have perhaps been mismatched.
I hope that we might be able to have further discussion with the Minister about the issues around this. I beg leave to withdraw the amendment.
Lord Kennedy of Southwark
“( ) a director of a body corporate or unincorporated association which provides for or arranges for the provision of care as set out in paragraph (a), under specified circumstances to be set out by the Secretary of State within 12 months of this Act coming into force,”
Lord Kennedy of Southwark
My Lords, I will be brief. This amendment was tabled by me and my noble friend Lord Beecham. It seeks to close what we thought was a loophole in the clauses that the Government introduced here. It seeks to introduce a criminal liability on a director of a corporate body or an incorporated association for failing to sack employees who have committed an offence of ill treating or wilfully neglecting an individual in their care. That seemed to us to be a serious omission on the part of the Government. As I said in my contribution on the previous group, these clauses did not get a huge amount of scrutiny in the other place; they were added very late. We think that this is a serious omission and that the Government should look at it very carefully. The amendment is a probing one, designed to get a response from Government at this stage. We may want to come back to it on Report, but I would be grateful if the Minister could give us his views on this. I beg to move.
Earl Howe
My Lords, I am grateful to the noble Lord for giving me the opportunity to deal with this important issue of individual liability, where a care provider offence has been committed. Professor Don Berwick was very clear, in his recommendation on the creation of the offence, that it should apply to organisations providing care as well as to individual care workers. We completely agree with that principle; however, we have deliberately formulated the offence in respect of care provider organisations somewhat differently from the care worker offence, for two reasons. First, we wanted to try to ensure that the care provider offence could be applied to an organisation as an entity in its own right, without the need to first identify and convict an individual of sufficient seniority within the organisation’s management hierarchy so that they could be seen as the controlling mind of the organisation. That is why Clause 18 is modelled on the corporate manslaughter offence. Secondly, we wanted to ensure that the focus of the care provider offence was unequivocally on the provider organisation as a whole. We deliberately chose not to create a situation where attention could be deflected on to an individual such as a director when the offence had been committed by the organisation’s board acting as an entity, not as individuals. The intention is that the care worker offence will apply in respect of individuals, with the care provider offence capturing organisational failings that have allowed ill treatment or wilful neglect to occur.
It seems to me that this amendment would risk creating exactly that possibility of deflection away from the organisation by specifying that in certain circumstances an individual director of a care provider organisation is to be treated as a care provider in their own right, irrespective of the activities of the remainder of the board. Moreover, given the way the care provider offence is structured, I have to say that I think there would be some difficulties in making out the elements of it in relation to an individual director. For example, I fear that the historical difficulties in extrapolating the existence of a relevant duty of care from the organisation as a whole to an individual director could also arise here, and if that duty cannot be demonstrated then the offence cannot apply in any circumstances.
Nevertheless, I reassure the noble Lord that it is the Government’s policy to strengthen corporate accountability in health and social care and to hold individuals to account where they are responsible for failings in care. It is for this reason that we are introducing a fit and proper person test for directors of care providers. Directors will also be liable for the care worker offence when committed by them. Also, Clause 22(2) to (5) clarifies that a conviction for the care provider offence would not preclude an organisation being convicted for a breach of the proposed new fundamental standards for health and social care or a health and safety offence on the same facts, if this were in the interests of justice. It would therefore also be possible to convict an individual on a secondary basis for such an offence under provisions such as Sections 91 and 92 of the Health and Social Care Act 2008 or Section 37 of the Health and Safety at Work etc. Act 1974. This ensures that existing liabilities are not reduced as an unintended consequence of the new offence.
I am afraid that it seems to me that the noble Lord’s amendment would be in direct contradiction of the Government’s position on how the care provider offence should be applied. I am therefore unable to accept it. I hope that the explanation I have given will enable the noble Lord to withdraw the amendment.
Lord Kennedy of Southwark
I thank the Minister for his explanation. I shall reflect on it. My only intention is to protect people and staff and that, where people or companies have done wrong, we deal with them properly. The points that he outlined may provide sufficient protection and guarantees. I beg leave to withdraw the amendment.
Lord Beecham
“Identity theft
After section 9 of the Fraud Act 2006, insert—“9A Identity theft
(1) A person is guilty of an offence if, knowingly and without reasonable cause, he uses a means of identification of another person or a fictitious person.
(2) A person who is guilty of identity theft is liable, on summary conviction, to imprisonment for a term not exceeding 6 months or to a fine not exceeding the statutory maximum (or both).
(3) The Secretary of State may by regulations set out what constitutes a defence under this section.””
Lord Beecham
My Lords, the law understandably frequently struggles to keep pace with changes in society, and this is never more apparent than in these days of rapid developments in technology, which increasingly include cybercrime. We are constantly reminded of the necessity of protecting our identities from the predators of the cybersphere who seek to access personal information, often in order fraudulently to access financial details and make off with our savings and investments. Our banks remind us of the dangers of phishing and most of us will have received heart-rending pleas for help purporting to come from relatives or friends allegedly stranded in some foreign country. A friend of mine discovered that someone she knew had been taken in by just such a ploy and had sent the fraudster £1,500 that she could ill afford. My friend felt obliged personally to make good that loss.
There is a multitude of ways in which identity theft can be deployed, and it is clear that fraud generally is rising, by 25% a year on the latest figures, while convictions are falling. Sometimes the individual victim may be recompensed by his or her bank or via insurance, but ultimately the cost is passed on to customers at large. Identity theft is therefore never a victimless crime. As the Home Office Select Committee averred:
“Online criminal activity which defrauds victims of money is often not reported to or investigated by law enforcement”,
agencies. We are therefore unable to measure the true extent and cost of identity fraud, especially when perpetrated through technology.
Lord Faulks
My Lords, I am very grateful to the noble Lord for his introduction to this amendment. Of course, he is right to identify the increasing danger of fraud in the cybersphere, something acknowledged in the Serious Crime Act. He was also right to refer to the fact that there are other offences that deal with fraud—in particular, the Fraud Act 2006, which already includes offences that would apply to anyone who assumes a false or non-existent identity to commit fraud. In particular, Section 2 sets out the crime of fraud by false representation, which would cover a person pretending to be someone else for the purposes of making a gain for himself or another.
While identity theft is not in itself a criminal offence, the use of a false identity for fraud purposes is. Therefore, the amendment as drafted has difficulties, because it would also apply to innocent persons—for example, to persons who collect a parcel using their relative’s identification from the post office, which is currently permitted. However, the Government take the issue of identity crime extremely seriously and are pursuing a number of initiatives to prevent it. A multiagency strategic group, led by the Home Office, has been formed to reduce the threat to the United Kingdom. The group is engaged in a range of activity to tackle the problem, such as strengthening the issuing processes of government documents, improving data-sharing of false identities, and taking down websites that offer false documents for sale. There is a national policing identity crime champion. The City of London Police is leading this work and is currently developing an identity crime strategic threat assessment, working closely with the National Crime Agency.
The Government recognise that there are often particular challenges in dealing with the consequences of identity theft. These challenges relate to the difficulty of identifying and catching offenders, rather than to a lack in the criminal law. The Government are working with banks and credit card companies, promoting technical solutions to the problem and working to help the victims of such crimes. We are working with the credit reference agencies to provide a free service for anyone who has had their personal details used fraudulently. The credit reference agencies liaise with each other and the banks to restore compromised personal credit records. The service can be accessed by contacting Experian, Equifax or Callcredit. We are also addressing the scale of this issue and establishing identity crime trends over time, through the Crime Survey for England and Wales.
We are not in any way complacent but I hope that my response to the noble Lord’s very real and appropriate concerns about identity crime has satisfied him that the Government are well aware of the issue and are responding appropriately. In those circumstances, I respectfully ask him to withdraw his amendment.
Lord Beecham
I will, of course, withdraw the amendment. However, if I may say so, I am slightly disappointed by the Minister’s rather complacent tone in relation to where we are in this situation. I do not detect a properly co-ordinated response between the Home Office and the Ministry of Justice where the police service is concerned. This matter bears further examination. If, as the noble Lord says, it is currently under consideration, I wonder whether there is any possibility of a report being made before we get to Report stage. If that is not the case, I will be tempted to bring something back at that point. However, I am happy to enter into further discussions in the light of any progress made by the Government in drawing their various strands together. I beg leave to withdraw the amendment.
Lord Blair of Boughton (CB)
My Lords, I draw attention to my registered interests. I am advised that it is the correct procedure—in view of the hour, it seems a very appropriate procedure—for me to speak only once to introduce my objections to both Clauses 23 and 24. Clause 23 deals with the introduction of a new offence of police corruption and Clause 24 introduces a mandatory whole life term for the murder of a police officer or a prison officer while on duty. I spoke at some length at Second Reading on 30 June and I do not intend to do so again or to rehearse all the arguments I made then. However, it is probably necessary for me to make clear that I regard police corruption as a cancerous evil which is ever present and which I and other noble Lords who were police officers have successfully investigated. Even more directly, I give way to no one in my abhorrence of the murder of a police officer or prison officer while on duty, particularly, but not exclusively, because someone tried to murder me.
Noble Lords speaking in support of removing these clauses from the Bill will make their own points but my first covers them both. Curiously, although they cover significantly different aspects of criminal law, the two clauses are connected by a simple proposition: they are bad law and they are unnecessary law because they are symbolic legislation, which I have heard before in your Lordships’ House is normally a reprehensible idea. The purpose of this proposal is to strike them out. It is, of course, in the nature of a probing amendment which will not be pressed to a Division but it seeks to ask the Minister and, if I may so request, the Front Benches of other parties to explain—I hope, in some detail—why this symbolic legislation should be embraced. The noble Lord, Lord Beecham, has just spoken of gimmicks; there may be some right here.
As regards Clause 23, I am absolutely certain that there is simply no lacuna. There is simply no gap to be filled between the Bribery Act 2010, some residuary clauses in the Prevention of Corruption Act 1916 and the common law offence of misconduct in public office. The Minister has just mentioned other offences in relation to the amendment just moved by the noble Lord, Lord Beecham. That was part of his argument for why that amendment should not pass. Exactly the same position applies in this case. No investigator or prosecutor has ever suggested to me that there is a difficulty in framing a charge in relation to police corruption. Subsection (11) of the clause confirms that by insisting that this legislation does not affect the common law offence of misconduct in public office. If there is no gap in the law, why introduce some new legislation? I think that my noble friend Lord Dear will flesh out a number of other professions to which such a law could equally logically—or perhaps equally illogically—be extended, as I did at Second Reading. However, I should also point out that the offence created by this legislation is exceptionally broadly and loosely drawn and will bring with it pointless investigations and contested trials.
I have heard it said that the clause is being introduced as a response to previously uninvestigated allegations of corruption—there were plenty of previously investigated allegations of corruption—in the case of the racist murder of Stephen Lawrence, and to the so-called “plebgate” events. I would only point out to noble Lords on all sides that it is normal to allow such investigations and court cases to come to an end before deciding to legislate further. Mr Ellison QC should now be allowed to finish his investigation; and the contested libel cases—I emphasise the plural—concerning who said what to whom outside 10 Downing Street should be allowed to come to court before judgments are made before introducing this sort of legislation.
Clause 24 is worse—much worse. It is not only unnecessary and populist but genuinely dangerous to the lives of police and prison officers—as I alluded to at Second Reading by quoting the case of Harry Roberts, who is still serving a life term 48 years after the murder of three police officers in 1966. There is simply no evidence of judicial complacency when sentencing those convicted of murdering a police or prison officer on duty.
The noble and learned Lord, Lord Lloyd of Berwick, who has appended his name to this Question on whether Clause 24 should stand part of the Bill, cannot be in his place, but I know that if he were here he would have reflected that, shortly after the abolition of capital punishment in 1965, a number of attempts were made to make an exception by retaining capital punishment for the murder of a police officer. These attempts were always defeated for exactly the same reason that I referred to at Second Reading and shall set out again briefly. If the murderer of a police officer has escaped from the scene, he or she will be aware that if this legislation is passed, he or she, if apprehended, will face life without parole. There is no incentive for him or her to surrender, and no further penalty can be given to him or her for killing more police officers. Why not entrap them? Why not go out in a deluded blaze of glory and take more hated police officers with them? It is “suicide by cop” as it is known. This measure is simply dangerous, unhelpful and totally misguided.
It is interesting only a small number of Back-Benchers are in your Lordships’ House at the moment—all of them former police officers, and all of whom object to this clause for that reason. I should be fascinated to hear why the different political parties support these clauses.
Lord Dear (CB)
My Lords, I shall speak to Clause 23, although my comments could equally well apply to Clause 24. I accord entirely with the last remarks made by the noble Lord, Lord Blair. I also remind noble Lords of my record in dealing with police corruption and malpractice. I emphasise the fact that I do not in any way diminish the seriousness, importance and reprehensibility of any abuse of office. Any corruption is reprehensible, particularly by those in authority. That of course includes police officers.
As has been said—and I will not go through it in detail—the current law is adequate and all-embracing. It captures all the possible misbehaviour and misconduct of those in public office, including police officers. The proposal does not add one jot to the armoury of offences that prosecutors can deploy. In fact, when reading jurisprudence at university, I well remember it being said that it was a universal truth that repetitious legislation—one offence after another, all dealing with exactly the same principle—was odious. I, too, would be interested if the Minister could tell us why it is such a good idea at the moment.
I notice that Mr Jeremy Wright MP, Parliamentary Under-Secretary of State for Justice, said:
“The public expect the police to act with honesty and integrity at all times”.
He went on to say that the Government felt that the best way to proceed was,
“to create a new offence of police corruption that applies solely to police officers”.—[Official Report, Commons, 17/6/14; cols. 1020-1.]
He said that this would be alongside the existing, broader common-law offence of misconduct in public office. The new offence in the Bill carries a maximum sentence of 14 years. Misconduct in public office carries a maximum sentence of life imprisonment. The safety net is there.
Lord Condon (CB)
My Lords, I declare my interests in policing as a member of the Association of Chief Police Officers, and as a former commissioner and senior police officer. I first congratulate the Government on its resolve to deal with police corruption, past and present. Many wrongs have been righted that were long overdue. However, I share the reservations expressed by the noble Lords, Lord Blair and Lord Dear, on Clause 23, and expressed by the noble Lord, Lord Blair, on Clause 24.
The challenge in dealing with police corruption is not the absence of relevant offences; it has always been the inability to establish credible, usable evidence of such behaviour. A new offence does not mean that the job is done and police corruption is ticked off the list of things to do. The fight against police corruption requires a well resourced and confident Independent Police Complaints Commission; profound ongoing ethical and cultural change in the police service, as suggested by the noble Lord, Lord Dear; and vigilance that is sustained at all times, not just at the point of a particular scandal. All I ask the Minister to acknowledge on Clause 23 is that it is but a small piece of a much larger endeavour, which seeks to sustain and improve ethical policing, and deal with police corruption.
During my time in your Lordships’ House I have heard from all sides, and from the noble Lord, Lord Blair, that symbolic legislation is rarely good legislation. Clause 24, which my name is attached to in questioning, feels like a piece of symbolic, public relations legislation. There is no evidence that judges do not view the murder of police or prison officers with the upmost seriousness and sentence accordingly. I share the same concern articulated by the noble Lord, Lord Blair. The clause means well, and I thank the Government for it, but I am not being patronising in saying I hope they have thought through what could be the extreme implications of it. It may be only rare cases, but I fear that a criminal on the run who has—or believes he has—murdered a police officer has nothing more to fear if whole life sentences are in place. With a warped mind in such circumstances, they might seek to shoot, stab or bludgeon their way out of an arrest scenario—or seek suicide by policeman, as mentioned by the noble Lord, Lord Blair.
I do not feel strongly opposed to either of these clauses, but I have reservations relating to Clause 23, for the reasons I have said. I have a nagging fear that Clause 24 could have a perverse effect. All I seek from the Minister at this point is whether there has been sufficient consultation with the police service, as currently organised and led, relating to Clause 24. Can he reassure me that my fears are perhaps old fashioned and outdated?
Lord Paddick (LD)
My Lords, I briefly rise to support the noble Lords, Lord Blair and Lord Dear, on Clause 23. I spoke on this issue at Second Reading. I do not want to repeat what the noble Lords have already said very clearly and eloquently, but one of the reasons that was given for this new piece of legislation was that it would include the corrupt activities of police officers while off duty. However, in the Plebgate case, to which the noble Lord, Lord Blair, has already referred, one officer has been successfully prosecuted and jailed for misconduct in a public office. That officer was not on duty at the time of the offence—indeed, he was not even at the scene of the event. Therefore, I should like to hear from the Minister in what way this new legislation adds to the offence that is already successfully used to prosecute police officers for misconduct in a public office.
The noble Lord, Lord Dear, has a distinguished record in tackling police corruption, particularly in relation to the West Midlands serious crime squad. I believe that if the noble Lord is opposing Clause 23 then the Minister should listen very carefully to what he has to say.
I could not put the reasons for opposing Clause 24 any better than the noble Lords, Lord Blair and Lord Condon. The arguments that they have put forward are compelling. If a series of former senior police officers in this House are saying that the provisions of Clause 24 are both unnecessary and dangerous, I respectfully suggest that my noble friend the Minister should listen.
Lord Kennedy of Southwark
My Lords, like other noble Lords, I want to speak to both Clauses 23 and 24 to aid your Lordships’ House.
The Opposition cannot support the noble Lords, Lord Blair, Lord Dear, Lord Condon and Lord Paddick, in opposing Clause 23. I have heard very clearly the points that they have made concerning police officers being public servants with special provisions being made for them. They are obviously highly respected individuals and public servants but, with that, they carry great responsibility and great power. Where those officers exercise that power or privilege improperly, there can be tremendous consequences for the individuals concerned. That is the concern that we have on these Benches and it is why we will support the clause as it stands.
Moving on to Clause 24, the murder of a police officer is of course a most serious crime, and it is right that anyone killing a police officer in the course of their duty should receive a substantial jail term. This clause would make that a whole life term. My colleagues in the other place supported the Government, as we do today on the Opposition Front Bench. The noble Lords, Lord Blair, Lord Condon and Lord Dear, have all been senior police officers and have all expressed grave reservations about this provision, saying that it is unnecessary. Like the noble Lord, Lord Paddick, I very much hope that the Minister will meet the noble Lords and other representatives and look at this issue very carefully. The last thing that anyone wants to do is to agree to a Bill that puts more people’s lives at risk. I am very worried about that. We must look carefully at what they have said and talk to them about this issue because it would be madness to do anything else.
These are very difficult issues. Obviously everyone wants to root out corruption at any level. Regarding Clause 23, the consequences for the victims of police corruption are very serious.
Lord Faulks
My Lords, this has been an excellent debate, distinguished by the contribution of four very senior and experienced police officers. Also, the helpful contribution of the noble Lord, Lord Kennedy, added to the debate. The noble Lord, Lord Paddick, is quite right: the Government should plainly listen to what police officers with such experience and who are so respected in your Lordships’ House have to say.
The noble Lord, Lord Condon, ranged over a number of issues in respect of the police. He stressed that the police were in something of a crisis at the moment but, at the same time, he said, absolutely correctly, that they need to be properly resourced and that there ought to be a competent Independent Police Complaints Commission. So far as that is concerned, the Government have given the IPCC a range of new powers. It has already received £2.4 million to strengthen its capabilities. In addition, from this financial year, we will transfer £18 million from police forces to the IPCC to enable it to do all serious and sensitive cases, including corruption work.
Lord Blair of Boughton
My Lords, I am most grateful to the Minister and to the noble Lord, Lord Kennedy, for their comments. I am afraid that I still feel we are in the world of assertion, as the Minister said, rather than of argument. He may not be able to do this, but I would be most grateful if he could assist me by providing me with some of the advice that he has received in relation to the corruption offences. The scenario that he just described, of a senior police officer misusing his position but where no prosecutor could find a way to suggest that that was an offence under the bribery or whatever Act, or that it was misconduct in a public office, sounds a little unusual to me.
I am most worried, as I think are other noble Lords who have spoken, about what I shall now refer to as the “perhaps” clause. The Minister very much emphasised the word “perhaps”, saying that an offender in these circumstances would perhaps not be familiar with the law and so on. The fact is that as soon as you mention “whole life tariff” to a criminal, he or she—it is almost certainly a he—knows what a whole life tariff is and that it means that you might as well take five cops out as one cop. It is that simple. I would be grateful to speak to the Minister a little further about this, particularly to answer the question that the noble Lord, Lord Kennedy, raised about the level of consultation with senior police officers and the Police Federation at the moment. I am pretty clear that the objections that I have raised are familiar to them: they have been familiar to generations of police officers since the then leaders of the police service objected to there being capital punishment for the murder only of a police officer or a prison officer.