Wednesday 2nd November 2016
(8 years ago)
Lords ChamberRead Hansard Text Amendment Paper: HL Bill 55-III(a) Amendments for Committee, supplementary to the third marshalled list (PDF, 64KB) - (1 Nov 2016)
The Minister of State, Home Office (Baroness Williams of Trafford) (Con)
My Lords, as we discussed at Second Reading, the purpose of the Government’s reforms to pre-charge bail is to end up with fewer people on bail for shorter periods of time. Part of the way we will do that is to raise the initial decision to impose bail from the custody officer who currently makes that decision—a sergeant—and to require an inspector to make it. At present, the College of Policing’s guidance suggests that an inspector should make a decision to extend bail beyond the initial period. The Bill would instead require a superintendent to make that decision.
The clear implication of these amendments is that the authorisation for pre-charge bail that the Government seek to set is too high, and that instead the current levels are in fact adequate and appropriate. As my right honourable friend the Prime Minister said when she described these reforms as Home Secretary at Second Reading in the House of Commons,
“it is apparent that a significant number of individuals have spent an inordinate amount of time on bail only to end up not being charged or, if charged, found not guilty. Of course, the police and prosecution need time to assemble and test the evidence, particularly in complex cases, before coming to a charging decision, but we need to recognise the stress caused when people are under investigation for prolonged periods, and the disruption to their lives where they are subject to onerous bail conditions … To address the legitimate concerns that have been raised about the current arrangements, the Bill introduces a number of safeguards”.—[Official Report, Commons, 7/3/16; col. 45.]
As well as setting clear times for the review of pre-charge bail, which we will debate shortly, the increased levels of accountability set out in the Bill, which these amendments seek to reverse, are an important safeguard against the misuse of pre-charge bail. The measures in the Bill significantly enhance the human rights protections for those accused of an offence, including setting a presumption that release pre-charge should be without bail and that bail should be considered regularly by the police—and after three months, by the courts—to ensure that bail is necessary and proportionate and that the investigation is progressed with appropriate speed and urgency.
In proposing these amendments, the noble Baroness, Lady Harris, and the noble Lord, Lord Kennedy, on her behalf suggest that requiring the involvement of inspectors and superintendents is disproportionate, and that there is insufficient capacity within police forces for these officers to carry out their existing duties and to make the bail authorisation decisions required by the Bill. We do not consider that the evidence supports this argument.
Lord Kennedy of Southwark
My Lords, Amendment 181 in the name of the noble Lord, Lord Marlesford, would insert a new clause into the Bill concerning the procedures to be followed where a suspect is released without charge or informed after being questioned under caution that no further action will be taken against them. In considering the noble Lord’s amendment, I wanted to listen carefully to his reasoning for this proposed new clause, and I think that he has made a compelling case today. The noble Lords, Lord Dear and Lord Paddick, have extensive experience as senior police officers and the House should also take note of their support. I am not sure whether this should be addressed through an amendment to the Bill—I accept that point. There may be some other mechanism to address it, but the noble Lord, Lord Marlesford, has made a compelling case and I thank him for that.
Baroness Williams of Trafford
My Lords, Amendment 181, tabled by my noble friend Lord Marlesford would require a custody officer to do two things once a decision has been made that no further action is to be taken against a suspect because the test for mounting a prosecution, set out in the Code for Crown Prosecutors, has not been met. First, the custody officer would need to notify the person in writing that no further action is to be taken. Secondly, the written notice must use the phrase “lack of evidence” to describe the reasoning behind the decision.
The Government agree with my noble friend that written notification should be given in all cases. We consulted on this in late 2014 and Clauses 65 and 66 would require a written notification to be given to any person arrested on suspicion of a criminal offence, where the police or Crown Prosecution Service subsequently decide not to charge. This applies whether or not the person is on bail following the reforms set out in Part 4 of the Bill. My noble friend’s amendment would go one stage further and require the written notification of no further action in those cases where a person is interviewed under caution on suspicion of an offence but not arrested. We know from anecdotal evidence that, since the amendment of PACE Code G in 2012, more cases are being dealt with by the police without arresting the suspect, which may have created a gap in police practice that my noble friend’s amendment identifies. In order to give this issue appropriate consideration, I would like to take it away and consider it further before Report.
The second limb of my noble friend’s amendment would require that the written notice and any other record used the phrase “lack of evidence”, rather than the customary “insufficient evidence” used at present. It may assist the Committee if I remind noble Lords of the evidential test required by the Code for Crown Prosecutors. Paragraph 4.4 of the code states:
“Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be”.
The absence of “sufficient evidence to provide a realistic prospect of conviction” could easily be characterised as a “lack of evidence” or as the presence of “insufficient evidence”. We could debate for some time the precise difference between the two phrases, which must be very small.
Noble Lords have said that there has been some comment in the media, in the light of recent high-profile cases, that the dropping of cases due to “insufficient evidence” could leave an outside observer thinking that there must have been something there. This reflects the reality of policing: that there has to be sufficient evidence to justify an arrest—that is, reasonable grounds to suspect that an offence has been committed. However, the investigative process in such cases will often end up with insufficient evidence, or, to use my noble friend’s phrase, a “lack of evidence”, that could still mean there was some evidence, but not sufficient to charge.
The Code for Crown Prosecutors is issued by the Director of Public Prosecutions under Section 10 of the Prosecution of Offences Act 1985. The current version, dating from January 2013, is the seventh edition of the code, and every version since 1986 has stated essentially the same requirement for,
“sufficient evidence to provide a realistic prospect of conviction”.
I say to my noble friend and other noble Lords that “insufficient evidence” seems to reflect the wording of the code test rather better and that it is the opinion of the Crown Prosecution Service that the current phrasing has been used for more than 30 years and works well in practice.
While I recognise that the amendment would not change the test itself, to change the way that decisions made under the code are communicated, even to the small degree proposed by my noble friend, could create confusion, as there would be a tendency to ask which test should now be applied and whether it means the same thing. It could also invite doubt in the minds of prosecutors, judges, defence lawyers and others as to the reliability of decisions made against different tests.
I also point out to noble Lords that there are two tests in the Code for Crown Prosecutors that must be met before charges are brought. It is perfectly possible for there to be sufficient evidence to meet the first test, but for it none the less to be contrary to the public interest to charge, for example, where a case is to be disposed of out of court by way of a conditional caution.
While Clauses 65 and 66 set a requirement to notify a suspect that they will not be charged, that notice would need to be given in both scenarios; that is, where there was insufficient evidence and where the evidence was sufficient but charges were not in the public interest. However, under my noble friend’s amendment, a suspect would need to be told in all cases that they were not being charged due to a lack of evidence, even though there must be sufficient evidence to charge to get to the point of considering the public interest test.
I can say to my noble friend that the Government are sympathetic to his aim of giving greater certainty to those who are investigated but against whom charges are not brought. We are minded to achieve this by non-statutory means so that prosecutors retain the necessary flexibility in cases where a decision is taken on public interest grounds.
On the issue of written notification of a decision not to charge, the Government consider that Clauses 65 and 66 already require such notification in all cases where an arrest has taken place. However, I would like to give further consideration to the issue of those interviewed under caution without being arrested. I hope that my noble friend will recognise that the precise wording of that notification is an issue best dealt with by non-statutory means and that, having heard my statement, he will be content to withdraw his amendment.
Lord Marlesford
My Lords, I am most grateful to all noble Lords who have contributed with knowledge and experience far greater than mine. I was very gratified that there was so much support for what I had to say. I thank the Minister for what she said. She has gone a long way to accepting what I intend. I am happy to leave it to her to come back to us and tell us exactly what it is proposed to do.
The rather Socratic justification which she gave for the terminology is okay in esoteric circles, but we are concerned with what the people as a whole see, and we are back to the old cliché that justice must be seen to be done. When she says that the difference between my phrase and “insufficient evidence” is very small, I remind her that it was said that at one moment Christendom was divided by an iota.
Having said all that, I am most grateful to my noble friend for her sympathetic approach to what I have said, and I beg leave to withdraw my amendment.
Baroness Williams of Trafford
My Lords, this group of amendments would greatly reduce the effect of the Government’s reforms to pre-charge bail by increasing the length of the initial period of bail from 28 to 56 days. As I have said, the purpose of these reforms is to end up with fewer people on bail for shorter periods of time, and thereby significantly enhance the human rights protections of those who have not even been charged with an offence, let alone convicted. As such, requiring each and every person granted bail to be given bail for eight whole weeks would significantly dilute the reforms—reforms that the Liberal Democrats supported strongly when they were proposed by the coalition Government.
The noble Lord said that the intention behind these amendments is to reduce the administrative burden on the police in operating the reformed pre-charge bail system. Although I do not deny that the new system will cause additional work for the police compared to the current position, this is inevitable given that we are reforming a system currently lacking appropriate safeguards. I would also say that the Government do not look at the extra work required as an administrative burden; we see it as requiring an appropriate level of intrusive supervision to ensure that pre-charge bail is used appropriately and that investigations are progressed diligently and swiftly. That goes to the point made by the noble Lord, Lord Kennedy, about people having to return time and again to police stations.
I would also say that the figure of 28 days set out in the Bill was not arrived at by chance; we considered carefully the initial period of bail in drawing up our proposals, seeking to balance the administrative burden on the police with the need to put an end to the practice of people being bailed for months or even years at a time with no external scrutiny.
When we consulted publicly in December 2014 on the proposals, with the full agreement of the Liberal Democrats, who formed part of the coalition Government at the time, we received some 300 responses, two-thirds of which favoured the tightening of pre-charge bail and introduction of judicial oversight. Of the 135 respondents who expressed a preference, 58% favoured the model set out in the Bill, with an initial bail period of 28 days, extendable to three months by a senior officer. There was also strong support for an initial bail period of 28 days from groups as disparate as the Society of Editors, the Birmingham Law Society and the Magistrates’ Association. The Committee might also be interested to know that the Howard League for Penal Reform, a well-respected group of campaigners in this area, argued that pre-charge bail should be limited to a single period of 14 days without conditions.
I also draw the Committee’s attention to the bail principles published by the College of Policing in October 2013, which stated that:
“In the first instance, unless there are exceptional circumstances, the bail period should be no more than 28 days”.
With the greatest respect to the noble Lord, there is clearly backing for the human rights improvements that would be brought about by a 28-day initial bail period from across the spectrum of public and professional opinion.
I also point out that, as set out in the impact assessment accompanying the Bill, almost one-third of bail cases—29%—are currently resolved within 28 days. We cannot therefore see how it would be either sensible or appropriate in those cases for the police to have a choice of either keeping those individuals on bail for a further four weeks or having to issue paperwork to terminate suspects’ bail and call them in for charging.
I also draw the Committee’s attention to the other major change these reforms will make: that there will be a presumption in favour of release without bail, with bail being used only where it is both necessary and proportionate. This change in particular will allow the police to release many suspects without the administrative overhead that bail entails. It would also remove much of the stigma and inconvenience of bail from those released in this way. Because of this change, the police resources tied up administering straightforward cases will be freed up to concentrate on those cases where bail is truly necessary.
I have set out why the Government consider that the 28-day initial bail period is an appropriate first period, during which a significant proportion of cases will be resolved. The Government consider it crucial that the unfairness of keeping a person under investigation in “legal limbo” is addressed, as it cannot be right that they can spend months or even years on pre-charge bail with no judicial oversight, as happens at present.
As set out in the coalition Government’s response to the consultation, published in March 2015, the negative effects for individuals on bail and their families include emotional or mental trauma and financial implications. I also draw to your Lordships’ attention to the fact that, at the end of the coalition, in their 2015 general election manifesto, the Liberal Democrats included a proposal to place limits on the duration and conditions of pre-charge bail. Therefore, it strikes me as odd to hear the noble Lord, Lord Paddick, asking to extend the initial bail period from 28 to 56 days. I recognise his laudable aim to reduce the administrative burden on the police, but extending the initial period to 56 days will, as I have said, either leave a large number of suspects on bail for no reason or require the police to do further work to call them in. For that reason, I ask the noble Lord to withdraw his amendment.
Lord Kennedy of Southwark
Before the noble Baroness sits down, can she comment on some of the academic research around this, which both I and the noble Lord, Lord Paddick, referred to? I think that we are all in agreement that no one wants anybody to go on bail for a day longer than absolutely necessary but it seems a bit odd that, if all the services that the police need to investigate their cases are taking more than 28 days—maybe up to six weeks—we have bail for 28 days. They could bring people back into the police station just to send them away again because the necessary information is not available.
Baroness Williams of Trafford
I draw the noble Lord’s attention to the comments that I made about the presumption against pre-charge bail, which I think is compelling in the Government’s attempt to reform the system. There will be presumption in favour of release without bail—in other words, do not bail someone unless there is a good reason to put them on bail, which in many ways would free up the system. Bail should be used only where it is both necessary and proportionate. The fact that almost one-third of people are released within 28 days anyway is, I think, compelling evidence for the arguments that the Government are making.
Lord Paddick
My Lords, I am very grateful for the support of the noble Lord, Lord Kennedy of Southwark, on this matter. As he just said, there is agreement on all sides that we need to protect the human rights of those people arrested and bailed by the police. But there needs to be a balance between the protection of human rights and the practical impact on the police, particularly in the light of the significant cuts in police numbers, the even greater cuts in the number of detectives, who would be mainly involved in investigating these matters—and trying to do so within a 28-day limit—and the reduction in the number of police superintendents, who would have to authorise a further extension. The noble Baroness said that 28 days was not arrived at by chance and that people should not be on bail for years. The amendment suggests 56 days, not years. It is just a proportionate increase to the maximum limit proposed in the Bill.
It is unfortunate that the noble Baroness appears to be trying to argue this on party lines, talking about what the Liberal Democrats did in coalition. Unlike other political parties, the Liberal Democrats like to base their decisions and legislation on the evidence. The evidence from academics that I put forward, which the noble Baroness has not addressed, points in the opposite direction to the Home Office impact assessment. The noble Baroness failed to answer when I asked why there was a difference between the Government’s view and the findings of academic research and representations from the Superintendents’ Association. She quoted from a 2013 College of Policing report. I quoted from a 2016 College of Policing report, which Professor Zander said backs up Professor Hucklesby’s conclusion that 60 days is a far more appropriate period and strikes the right balance between the human rights of those bailed and the practical issues facing the police. Clearly, we will return to this at other stages on the Bill but, at this stage, I beg leave to withdraw the amendment.
Lord Kennedy of Southwark
My Lords, Amendment 187A is very opportune and I hope that the Government will be pleased to see it. It stands in my name and that of my noble friend Lord Rosser and would insert a new clause in the Bill with regard to pre-charge bail. The new clause would place a requirement on police and crime plans to include an annual assessment of the capability of the police to investigate crimes within the 28-day period. Proposed new subsection (2) in the amendment states that the assessment must consider the points as listed, which are,
“changes to the number of suspects released without bail … resource constraints … safeguarding requirements … and … issues around multi agency work”.
This list is not exhaustive but all these sorts of things could come into play if the police were able to deal with people on bail within the 28-day period. An annual assessment is a valuable tool in helping to ensure that targets are met and in identifying problems.
The second amendment in this group would give a power to the Secretary of State to make by regulation a requirement for agencies,
“to cooperate promptly with police”.
As we said in a previous debate, in seeking to meet the 28-day target, the police need to be confident that other agencies are working to deliver information to them. The amendment would give the Secretary of State the power to require agencies by regulation to assist the police within the 28-day limit. I beg to move.
Baroness Williams of Trafford
My Lords, as the noble Lord, Lord Kennedy, has explained, these amendments seek to test the ability of police forces to complete investigations within the initial 28-day pre-charge bail time limit.
Amendment 187ZA would require police and crime commissioners to make an annual assessment of their force’s capability of investigating crimes within this initial pre-charge bail time limit. The Government consider that requiring such an annual assessment will only add an unnecessary bureaucratic burden on PCCs and forces. First, the Police Reform and Social Responsibility Act 2011 requires PCCs to produce new police and crime plans only in the year of an election, so the amendment does not build on an existing process; it requires PCCs to produce something entirely new.
The Government acknowledge that the reforms to pre-charge bail will create a new system and that forces will need to build capacity at first and incorporate changes within their business processes. However, the changes will encourage and enable police forces to resolve cases within a time limit, resulting in a more efficient system for the long term.
Although bail will be limited initially to a period of 28 days, it is important to remember that the Bill’s provisions will enable an extension to a total of three months, which can be authorised by a senior police officer in complex cases. Furthermore, the police will also be able to apply to the courts for an extension beyond three months, which will have to be approved by a magistrate. While the police will, of course, aim to resolve cases in fewer than 28 days, they will be able to extend the bail period where it is necessary to do so. The requirement for senior scrutiny of extensions will avoid the issue of the past, where bail has been extended for months, or even years, without scrutiny outside the investigation team.
Lord Kennedy of Southwark
Before the noble Baroness sits down, in her response to Amendment 187ZA she talked about external scrutiny of the police. Can she say a bit more about that? Is she saying that she expects that external scrutiny to look specifically at the issues here in a broad-brush review? If so, where will they get the data from? I assume that they will be collected by the police.
Baroness Williams of Trafford
My Lords, there will be a number of sources of data within the police, and the annual monitoring by HMIC’s PEEL inspection programme, which considers all the police’s effectiveness, efficiency and legitimacy, will form part of that external scrutiny.
Lord Kennedy of Southwark
The noble Baroness can check this and come back to me, but I would expect then that the data would actually be collected.
Baroness Williams of Trafford
As the noble Lord says, I will go away and give him more detail on that, either before Report or on Report.
Lord Kennedy of Southwark
I thank the noble Baroness for that response, and at this time I am happy to withdraw the amendment.
“( ) Where an offence under this section is committed by a person released without charge and on bail under Part 4 of the Police and Criminal Evidence Act 1984, the offence is to be treated as having been committed in England and Wales (whether or not the conduct constituting the offence took place there).( ) Where an offence under this section is committed by a person released without charge and on bail under Part 5 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I.12)), the offence is to be treated as having been committed in Northern Ireland (whether or not the conduct constituting the offence took place there).”
Baroness Chisholm of Owlpen (Con)
My Lords, these amendments principally relate to the cross-border enforcement provisions in Chapter 7 of Part 4. Those provisions strengthen the existing cross-border powers of arrest contained in Part 10 of the Criminal Justice and Public Order Act 1994. In particular, these provisions close a gap in the cross-border arrest powers to ensure that a person who commits an offence in one UK jurisdiction can be arrested without a warrant by an officer from the jurisdiction in which the person is found. The provisions in new Section 137A of the 1994 Act include a number of safeguards, one of which is that the arresting officer has reasonable grounds for suspecting that the suspect has committed a specified offence in another jurisdiction—that is, an offence specified in regulations.
In the interests of greater clarity and to ensure that the police are able to exercise these powers as soon as possible after Royal Assent, Amendments 201B, 201C, 201G and 201T insert a list of “specified offences” in the 1994 Act, instead of setting out the offences in regulations. As a consequence of this new approach, Amendments 201D to 201F modify the regulation-making power in new Section 137B of the 1994 Act so that it becomes a power to add an offence to or remove an offence from the list of offences for the time being specified in new Schedule 7A to the 1994 Act. This revised power is necessary to ensure that the list of relevant offences can be kept up to date; for example, to take account of new offences being created or reductions in the maximum penalty for a specified offence such that it is no longer in the interests of justice for it to remain on the list. As befitting a Henry VIII power, the regulations continue to be subject to the affirmative procedure.
The list of relevant offences specified in new Schedule 7A to the 1994 Act includes that in Clause 67: namely, the offence of breach of pre-charge bail conditions relating to travel. The related Amendment 187A to that clause clarifies that if a travel-related breach of pre-charge bail conditions is committed anywhere in the United Kingdom, it will be regarded as having been committed in either England and Wales or Northern Ireland, depending on where the bail was granted. This will ensure that the breach can be prosecuted in the relevant UK courts and will also make sure that the cross-border powers set out in Clauses 105 to 107 are available to enforce the offence.
Amendments 201H to 201S relate to the rights of persons arrested under new Section 137A of the 1994 Act. New Section 137D of the 1994 Act applies certain existing statutory rights to persons arrested under the new power of arrest—for example, in respect of the information to be given to the arrestee—but includes a power to disapply or modify the specified enactments. Again, in the interests of greater clarity, new Schedule 7B to the 1994 Act, which is inserted by Amendment 201U, sets out the necessary modifications in the 1994 Act. As a consequence of this change of approach, the regulation-making power is retained but modified so that it becomes a power to add, remove, alter and disapply statutory rights. Amendment 233A makes a consequential change to the extent clause.
I trust noble Lords will agree that this revised approach will provide greater clarity as to how the new cross-border arrest powers will operate. I beg to move.
Baroness Hamwee (LD)
My Lords, I hope that this amendment can be dealt with very quickly. It takes us to the provisions for live links with people in detention and, in particular, the definition of a “vulnerable adult”. When I read the definition, I was unsure whether the phrase,
“may have difficulty understanding the purpose of an authorisation”,
extended to understanding its implications or outcome. It seemed to me that the word “understanding” was rather narrow.
I was asked yesterday by the Bill team whether I could explain what I was getting at. Once I had a look at the drafting, I realised that I had put the words in the wrong place, and I apologise to the Committee for that. However, I was assured that the wording in the Bill extends to understanding the implications or outcome of a decision, and I am moving the amendment simply in the hope that the Minister can confirm that from the Dispatch Box. I beg to move.
Baroness Williams of Trafford
I thank the noble Baroness for her comments. Amendment 188A would amend Clause 73 to alter the definition of a “vulnerable adult” in new Section 45ZA of the Police and Criminal Evidence Act 1984. That new section would enable a superintendent to authorise the extension of pre-charge detention using a live link, rather than being physically present in the police station. In the case of a vulnerable adult, consent to the use of a live link must be given in the presence of an appropriate adult, and the amendment seeks to alter the definition of a vulnerable adult for those purposes.
I understand that the noble Baroness is seeking an assurance that the definition provided for in the Bill would include a person who had difficulty understanding the implications or outcome of a decision by a superintendent to authorise the extension of pre-charge detention from 24 to 36 hours. I am happy to provide such an assurance and, on that basis, I hope that she will be happy to withdraw her amendment.
Lord Thurlow (CB)
My Lords, I rise to support the amendments tabled in the names of the noble Baronesses, Lady Walmsley and Lady Hamwee, and my noble friend Lady Howe. They mark important steps across the board to bring the treatment of mental ill-health in line with our 21st-century understanding of that arena. I have, perhaps regrettably, close personal experience of dealing with and attempting to cope with people suffering a mental health crisis. I bring to bear that experience as well as the advice offered by the Mental Health Alliance and specifically the charity Mind, both of which have been referred to, in my endorsement of these amendments.
The amendments regarding the use of police cells and homes as supposed places of safety—neither are appropriate, I agree—and concerning the period of detention in those places awaiting a mental health assessment are most important. I acknowledge the positive steps that this Bill in its original form recommended in both of these areas, but they do not go far enough. Perhaps I may reflect for a moment on who it is that these clauses are designed to protect. It is the vulnerable, the needy and those less able to help themselves. We have a special duty to those people in our society. These amendments are an important step of progress in improving their treatment at the hands of the police in times of crisis. That said, I am not criticising the police. I have seen at close quarters the awkward circumstances of the police having to enforce the rules. I admire the sensitivity and empathy I have seen displayed.
When a person is in a mental health crisis there is a very high risk of private anxiety, emotions of distress, confusion, aggression and perhaps threatening behaviour. What is required is probably support and compassion. Confinement in a cell is bound to add to this distress. Surroundings matter.
As we have heard, the Government have begun to dedicate funds to mental health services, improving the provision of suitable places of safety and achieving parity of esteem between mental and physical health. These are important steps and this work must continue. We must step up to this challenge on the behalf of those affected. This disadvantaged group, unlike most in our society, seldom makes its own case for better care. The reality is, of course, that they cannot—they are confused and they are not organised—but we can. They rely on us, and on the charities and other groups that work with them.
We must be sure to try our best to legislate so that the trend continues and relevant investment goes toward providing for those in need. The amendments tabled by the noble Baroness would do exactly that. This is legislation that will help bring the Mental Health Act 1983 into the 21st century. If we think for a minute, that Act was enacted more than 30 years ago. The quantum leaps of progress in medical understanding of mental health issues have been huge. Yet, the Act on the statute book is more than 30 years old. We must take every opportunity we can to improve the terms of the Act wherever we can.
I thank the noble Baronesses for their work in tabling the amendments and request that the Minister accepts them.
Baroness Chisholm of Owlpen
I thank noble Lords for this important debate. As the noble Baroness, Lady Walmsley, explained, these amendments seek to restrict, in different ways, the premises that can be used as a place of safety for persons detained under Sections 135 or 136 of the Mental Health Act 1983.
Of course it is important that people detained at a time of crisis be taken to the most appropriate place of safety for their medical needs. That principle is behind these amendments and also represents the Government’s position. Where we differ is on how this should be achieved in terms of the full range of options that should be available to professionals. Amendments 189 and 190 to Clause 79 would completely prohibit the use of police stations as places of safety. The Bill provides that police stations cannot be used as places of safety in the case of children or young people aged under 18. The issue for the Committee is whether this prohibition would also apply to adults.
The noble Baroness and other noble Lords who have spoken are concerned that a police station should never be an appropriate place for a person of any age to be taken at a time of such distress. The Government accept that police stations have been used to detain people under Section 136 far too often. Although much progress has certainly been made to address this, including a 54% reduction between 2014-15 and 2015-16, there is no doubt that police cells are still used inappropriately in some areas.
This will be addressed through regulations governing the circumstances in which a police station can be used for an adult. We have heard from experts that there are occasions when the behaviour of adult detainees can be too violent to be safely managed in a health setting. I expect the regulations to also set out the expected standards of care to be provided to any adult taken to a police station. These decisions will be determined on a case-by-case basis, but I stress that the emphasis is on the exceptional nature of such situations, with health-based places of safety used for the vast majority of cases. The Government have engaged experts and other interested parties in the development of those regulations. I expect to be in a position to say more about our approach ahead of Report.
Baroness Walmsley
My Lords, I thank the Minister for her reply. I have a few points to make in response but want first to apologise to the noble Lord, Lord Bradley, for not mentioning his excellent report. I congratulate him and the Government on the recommendations in the report that have been achieved on the ground. The street diversion teams are particularly good and would certainly come into play were a person found to be violent and in danger of hurting themselves or somebody else. The teams have had a fantastic effect and I look forward to their being rolled out universally.
It has been suggested that the amendment is a little premature and that we do not yet have the infrastructure in place to enable us to have a complete ban on the use of police cells. As with every other Bill, it would be perfectly possible for the Government to accept such a measure and then delay its implementation until such time as the review suggested by the noble Lord, Lord Bradley, had taken place and the extra beds had been put in place. That would not be an impediment to the Government accepting my amendment.
The noble Lord, Lord Rosser, asked what would happen if no health-based place of safety was available, the implication being that only use of a police cell was possible. Every local authority has hundreds of care homes and the lucky ones have nursing homes, too. Not all beds are occupied all the time; indeed, a recent report in the media cited instances where the contract with the family concerned stated that after the person in question had died, the family would have to carry on paying for two, three or four weeks while the home found another occupant for that room. That means that vacant rooms will be available. Some of them would be perfectly suitable for some patients, because they are acceptable and legal places of safety. If Hertfordshire and Merseyside can do it in those circumstances, then why not everywhere else?
Baroness Chisholm of Owlpen
Is the noble Baroness suggesting that mental health patients are able to go to care homes as places of safety?
Baroness Walmsley
I beg the Minister’s pardon. I should have said that there are care homes in every local authority where staff are specially trained to deal with people with mental health problems.
If Merseyside and Hertfordshire can do it, why not everywhere? Do they not have any patients who are in exceptional circumstances? I am sure they do.
On funding, the Minister suggested that the LGA was incorrect in briefing us that none of the money was going to local authorities. That is where my statement came from, and it should know.
On Amendment 191, about use of the home, it is important that somebody in a mental health crisis be able to see someone who is trained to assess and treat them as soon as possible, and as soon as would happen if they had a physical problem. They will not get that in their home. I do not believe that those choosing to take them home would be in a position to assess whether that home was really safe. Even members of the family would not know whether the home was safe, so getting their agreement is no guarantee that the home is a real place of safety. Many mental health patients have said that they would find it a serious intrusion on their privacy if the police brought them home and stood guard over them while they were there. I accept that it would be for only a short period, but to have a policeman outside the door would have a great effect on how they felt they were seen. As the noble Lord, Lord Thurlow, said, they already feel stigmatised by a link being made between mental health and criminality, which there really is not. We should therefore pursue these issues on Report. Of course, this is Committee stage, so for the moment I beg leave to withdraw the amendment.
Viscount Hailsham
My Lords, I have great sympathy with the points just made. The clock should start ticking when a person is taken into custody and not when he or she arrives at the place of safety.
Baroness Chisholm of Owlpen
My Lords, the amendment would provide for the permitted period of detention of a person detained under Section 135 of the Mental Health Act 1983 to commence at the point at which they were removed to, rather than the point at which they arrived at, a place of safety.
The Government wholeheartedly support the aim of minimising the period during which a person is detained under either Section 135 or Section 136 of the 1983 Act. That is why Clause 80 reduces the maximum detention period from 72 hours to 24 hours.
I also agree that every effort should be made to minimise the time taken to remove and transport a detained person to a place of safety. However, I put it to the noble Baroness that securing that outcome cannot best be achieved through legislation. Indeed, the amendment could well have unintended consequences which were detrimental to the best interest of detained persons.
I fear that the practical effect of the amendment would be to penalise those in need of care and the professionals assessing them in circumstances where the detained person needed to be removed from an isolated location, or if it was difficult to remove that person. For example, if someone needs to be removed from a place that is isolated or difficult to access, it may take some time for professionals to be able to get that person to a place of safety. We do not want the police or mental health practitioners to have one eye on the clock in such circumstances.
There is a balance to be struck between taking positive action to keep periods of detention as short as is reasonably possible and giving mental health professionals sufficient time for the necessary arrangements to be made for mental health assessments to be conducted during the 24-hour window provided for in the Bill. We believe that the combination of reducing, by two-thirds, the period of detention and starting the detention clock only when the detained person arrives at the place of safety—which is, incidentally, how the time limits work now—achieves that balance.
In practice, the vast majority of detained persons will be assessed well within 24 hours of their removal, but the legislation needs to allow not just for the generality of cases, where a person can be taken quickly to a place of safety, but also for that small minority of exceptional cases where this may not be possible. I hope that, on reflection, the noble Baroness is persuaded that the approach taken in the Bill is in the best interests of those suffering a mental health crisis and in need of immediate care. I accordingly invite her to withdraw her amendment.
Baroness Walmsley
Amendment 193 would ensure that people detained under Section 135 or Section 136 of the Mental Health Act 1983 have access to an appropriate adult. Such access is key to providing people in crisis access to advice while under emergency detention. It is a uniquely distressing and confusing time, as we have heard, and one where independent advice from someone with knowledge and skill who can handle the situation calmly is crucial.
At the moment detained people only have the police, who were involved in detaining them, and the person doing their mental health assessment as their key contacts. Clearly, neither of these can be seen as impartial to their situation. The person doing their assessment, although qualified, is going to be deciding what happens to them next, and so cannot really be described as impartial. There is a huge gap here, since people under most other sections of the Mental Health Act have the right to access an independent mental health advocate. People who are under arrest also have the right to access an appropriate adult. The National Appropriate Adult Network says about people detained or questioned by police:
“While both children and mentally vulnerable adults are required to have an Appropriate Adult under the PACE Codes of Practice, there is only statutory provision for children. As a result many people aged over 17 who are mentally vulnerable do not get the support that they are entitled to. This includes people with mental ill health, learning disabilities and autistic spectrum disorders”.
I recognise the concern of local authorities that they are strapped for cash, but I feel that making this provision statutory will put pressure on the Government to provide the necessary resources. The JCHR shares my concerns about this gap, as we read in its third report of the 2016-17 Session. It wrote to Mike Penning MP, then Minister for Policing and Criminal Justice. He replied on 1 July 2016 to the effect that persons detained under Sections 135 and 136 were only there in order to allow for a mental health assessment and he was keen,
“that we do not inadvertently build unintended and unnecessary delay and bureaucracy into this process or as a consequence of having to await the arrival of a formal advocate or independent representative”.
He also pointed out that the person could request the presence of a legal adviser or a relative or friend. This did not satisfy the JCHR and it does not satisfy me.
The JCHR said:
“We believe that additional safeguards are required to ensure that a person detained in a place of safety under s 135 or 136 of the Mental Health Act 1983 should have access to an ‘appropriate adult’, particularly in circumstances where they are detained in their own home”.
It drafted an amendment very similar to my Amendment 193, which I think it proposes to bring forward on Report, unless the noble Baroness can satisfy us all this evening. Given the state a person is likely to be in when they are detained, I believe it would be a breach of their human rights not to allow them the right to access an appropriate adult. I beg to move.
Baroness Chisholm of Owlpen
My Lords, it is absolutely right that people detained under Sections 135 or 136 should have the help and support they need to understand what is happening to them, and the current arrangements already allow for that. Detention under Sections 135 and 136 is for a short period of time and for the specific purpose of assessing the need for care and treatment, and making the necessary arrangements for its provision.
This amendment calls for each person detained to have access to an appropriate adult; an issue which was also raised by the Joint Committee on Human Rights in its report on the Bill. It is true that appropriate adults provide an incredibly valuable service, providing support and advocacy for children and vulnerable adults detained in police stations, usually when they are under arrest in connection with a criminal offence. Appropriate adults are not currently required to be provided by the police to support people detained under the Mental Health Act, nor are they trained to meet their particular needs. We must be cautious of the potentially stigmatising effects of conflating the support services provided to people suspected of an offence with those needed by people detained in connection with their mental ill health.
In the majority of cases under Sections 135 or 136, the person will be taken to health-based places of safety, where appropriate adults do not operate, rather than to police stations. In 2015-16 police stations were used in only 7% of Section 136 cases in England and Wales. The provisions in the Bill mean that police stations will be used even less than they are now; in fact, quite rarely, I expect— we hope, not at all. These rare cases require particular attention and I expect that the regulations on the use of police stations as places of safety for adults will give very clear direction about the level of support that will need to be in place.
I recognise that this amendment is about all people who are detained under Sections 135 or 136, regardless of which place of safety they are taken to. It is about supporting them, informing them and speaking for them if necessary. The Government are clear that the mental health professionals involved in the detention and assessment process are best placed to do this. Also, mandating the attendance of an appropriate adult, or some other person with a similar role, could very easily cause avoidable delays in getting on with the mental health assessment that is the proper purpose of a detention under Sections 135 or 136. Given that the Bill reduces the maximum period of detention from 72 hours to 24, it seems unhelpful to then introduce additional requirements that would, in all likelihood, impinge on that reduced period of time.
Guidance is now being developed on the changes the Bill makes to the 1983 Act. It will make clear the expectations on healthcare staff—those whom people detained under Sections 135 and 136 will encounter—to ensure that detainees have the support and advice they need while awaiting and undergoing an assessment. The Government are engaging with a wide range of experts to draw up this guidance. Current practices and the needs of people experiencing a mental health crisis will be carefully considered.
I hope I have been able to persuade the noble Baroness that mandating access to an appropriate adult is inappropriate in the context of a short Section 135 or Section 136 detention, and that, having had this opportunity to debate the issue, she will be content to withdraw her amendment.
Baroness Williams of Trafford
I start by thanking all noble Lords who have taken part in this debate. Although there have been opposing views on the amendment, it has provided a very balanced set of points. This group of amendments includes two proposed new clauses about police use of Tasers. As the noble Baroness, Lady Walmsley, explained, her amendment seeks to bar the use by police officers of a Taser or other electroshock device in psychiatric wards.
Any use of force by police officers in psychiatric wards, or in any other setting, must be appropriate and proportionate—the noble Lords, Lord Harris and Lord Dear, the noble Viscount, Lord Hailsham, and my noble friend Lord Attlee made that point and gave some very good examples this evening. The use of force must be necessary and conducted as safely as possible. Therefore, it is right that if police officers need to attend and use force, they should be expected to account for their actions, as the noble Lord, Lord Harris, said.
It remains the Government’s position that the deployment of police officers to mental health settings, and the tactics used, should remain an operational matter for the police force in question. Tasers are an important tactical option for police officers. Unfortunately, some of the most extreme behaviour can occur in mental health settings and can escalate to the point where it can be met only with force—as dictated by the high degree of urgency and grave threat to staff and other patients. I am talking about cases where other de-escalation tactics have probably been tried and have failed. Again, the noble Lords, Lord Harris and Lord Dear, and the noble Viscount, Lord Hailsham, made those points.
A blanket ban on the use of Tasers on psychiatric wards, as proposed by this amendment, would remove this valuable police tactic and therefore potentially reduce the safety of officers, hospital staff and indeed patients. In some extreme cases, it could leave officers with no choice but to use another, potentially more dangerous option as the only means to resolve a violent situation and keep others safe. The same noble Lords made these points. Police officers themselves have made it clear that they would not want their options constrained by a blanket ban on Tasers. Officers have a range of tactics and equipment available, and a Taser is but one of them. In deciding which tactic to use, an officer will assess which is likely to be most effective and proportionate.
The Government accept that more can and should be done to ensure that all uses of force, including of Tasers, are necessary and proportionate. For this reason, the former Home Secretary asked former chief constable David Shaw to lead an in-depth review of the publication of use-of-force data, including data on where force is being used, such as in a hospital setting, to ensure that the use of these sensitive powers is transparent. With the agreement of fellow chief officers, Chief Constable Shaw recommended that every time the police use a significant level of force on an individual, such as the use of Tasers, a range of core data must be recorded. This includes ethnicity, age and location, so that we will be able to identify every time force is used in a hospital or mental health setting. The data will enable thorough scrutiny of proportionality and effectiveness.
That brings in the point that I think the noble Lord, Lord Rosser, made about force seeming to be used more in some places than in others. All forces have worked to implement this new recording system, and I anticipate that the collected data will form part of the 2017-18 Home Office annual data return. I can tell noble Lords that in 2015 there were 10,329 uses of Tasers by police. Actual firings of the device—this is an important point—accounted for 17%. Non-discharges —where the Taser is drawn, aimed, arced or red-dotted—accounted for 81% of Taser use. Red-dotting accounted for 51%—the most common use.
All forces have worked to implement this new recording system and, as I said, it should be in force in 2017-18. The Government have also taken further steps to ensure greater scrutiny of the use of Tasers in mental health settings at local level, where operational decisions are made. Charles Walker MP raised some valuable points on this matter during consideration of the Bill in the House of Commons.
Both Home Office and Department of Health Ministers have in the past few days written to police and crime commissioners, chief constables and the chairs of local mental health crisis care concordat partnerships to ask them to work together to ensure that sufficient local joint scrutiny arrangements are in place. As local leaders with overall responsibility for policing and mental health crisis care, they have been tasked with ensuring that mechanisms are in place in their areas for the joint identification and scrutiny of any use of Tasers in a mental health setting.
I expect this additional scrutiny to lead to all relevant policing and health partners working closely to look at the full circumstances surrounding police officers being called to attend, the specific circumstances of any use of Tasers, and the lessons they can learn for the future.
As I have said, the Government and police believe that a blanket ban on the use of Tasers in psychiatric settings risks the safety of the police, hospital staff and patients. That said, I agree that more should be done to ensure that any use of Tasers in such circumstances is open to effective scrutiny. That is an important point.
The amendment tabled by the noble Lord, Lord Rosser, goes rather wider in seeking a review of all police use of Tasers—not just in mental health settings. As I just explained, the Government are committed to ensuring that the police use their powers and tools proportionately and are keen that all use of force by the police—including Tasers—be recorded and published.
The benefits of the planned new data collection system will be to enable the police and others to review practice in certain locations, against certain groups, and so on. This will enable deeper examination of the reasons for the use of force and inform adjustments needed to guidance, policy and authorised professional practice, if any. We have asked the police and others to ensure that this happens and, on that basis, I hope the noble Baroness feels able to withdraw her amendment.
Baroness Walmsley
My Lords, I thank the Minister for her reply and the noble Lords, Lord Ouseley and Lord Rosser, and my noble friend Lord Paddick for their support. I am sorry that I have been unable to take the noble Viscount, Lord Hailsham, or the noble Lords, Lord Dear and Lord Harris, along with me. I must say that I felt that in his enthusiasm in making his case, the noble Lord used somewhat unparliamentary language. In 16 years in your Lordships’ House, I have never been called silly before. The amendment was certainly not regarded as silly by the mental health patients who have approached us about the issue.
The noble Baroness mentioned that use should be appropriate, but we have had to move the amendment to highlight the issue today because it seems that “appropriate” has become a lot more frequent. We have heard some figures about the number of times that the police have been called in. At least the noble Lord, Lord Harris, was able at the end of his remarks to agree with me that part of the problem is undoubtedly the lack of sufficient properly trained staff in mental health wards, which needs to be addressed.
We will think carefully about what has been said on all sides of the argument between now and Report, but, for the moment, I beg leave to withdraw the amendment.
Lord Kennedy of Southwark
My Lords, Amendment 195, moved by the noble Baroness, Lady Walmsley, and also in the name of my noble friend Lord Rosser and others, would ensure that child victims of sexual abuse receive the mental health support that they need and would address the fundamental problem that, as things stand, victims too often have poor access to the support that they need. The Bill makes welcome provisions in the area of mental health—including by ending the detention under the Mental Health Act 1983 of young people in police cells—but it could go further, in particular, in recognising the mental health needs of children who have been victims of child sexual exploitation.
NSPCC research shows that children who have been abused are more likely to experience depression, anxiety and symptoms of post-traumatic stress disorder as well as self-harming and suicide. The cases of 30 children supported by the Children’s Society were analysed in its report Old Enough to Know Better?—a third of the cases noted that the young people needed mental health services because of concerns about their well-being, including self-harming episodes, suicide attempts or even episodes of psychosis that required in-patient admissions. The remaining cases also referred to the young people feeling low, depressed, anxious, fearful, or having flashbacks of their abuse. I think that the Government should accept this amendment from the noble Baroness this evening.
Amendment 221 in this group is in the name of my noble friend Lord Rosser. It would place in the Bill a duty for police forces to disclose information about children who are victims of sexual exploitation or other forms of abuse to the relevant health service commissioners. This is an important requirement to ensure that victims of exploitation can have access to the health services that they need.
Baroness Williams of Trafford
My Lords, I am grateful to the noble Baroness, Lady Walmsley, the noble Lord, Lord Kennedy, and the noble Baroness, Lady Benjamin, for their explanation of the amendments. We appreciate that their intention is to ensure that the proper provision is made for vulnerable or traumatised children. We absolutely agree that we must ensure that such children never fall through the gaps between services, but I put it to the noble Baroness, Lady Walmsley, that the overriding determinant of referral for health services must be clinical need. Not all children and young people who have been abused or exploited will develop a mental health problem, and intervening unnecessarily or inappropriately can in itself be harmful.
All that said, it is essential that healthcare practitioners who work with abused children and young people should have the capacity and capability to provide evidence-based treatment where needed. This will be addressed through the emerging workforce strategy, which is being put in place to deliver the key proposals in the Department of Health report on children’s mental health. The Department of Health is also introducing routine procedures so that sensitive inquiries are made to establish whether a child undergoing a mental health assessment has experienced neglect, violence or abuse. This will be an important step towards establishing a child’s or young person’s need for support. The important thing is that children and young people get the right care at the right time, based on their needs, not on a non-clinician’s view of their potential needs based on their experiences.
On amendment 221, it is worth adding that individuals, including children where appropriate, need to consent to receive treatment. Where a person indicates that they would like to avail themselves of any referral, consent can be sought for relevant personal details to be passed to the health provider, which is the proper course of action. It would be likely to be inappropriate, and in breach of data protection, automatically to pass on personal details and potentially sensitive information, even to a health provider. It may be helpful for noble Lords to know that NHS England published a Commissioning Framework for Adult and Paediatric Sexual Assault Referral Centres (SARC) Services in August 2015, which outlines the core services in SARCs and referral pathways to other services. They are now being rolled out throughout England.
On the basis of my remarks, I hope that the noble Baroness feels content to withdraw her amendment.
Baroness Walmsley
My Lords, I thank the Minister, though I hardly know where to start. I know that I want to keep my remarks short, as those here for the dinner-hour debate are waiting.
The Minister suggested that not all young people who have been abused require therapeutic help. Bearing in mind the figures that I gave at the beginning of my speech, we will not really know which 10% will not develop mental health problems unless we get them properly assessed. I may have used the wrong word—“refer”—in my amendment, but the point I am trying to make is that the police must ensure that the appropriate mental health commissioners in the area are made aware that a child may need therapeutic help and that an assessment should be done by a qualified person to find out whether they do. That is absolutely essential.
The fact is, we know that it is not always happening and that is why, as the noble Lord, Lord Harris, accepted, I felt it necessary to raise this, and I am not the only one. As I say, ChildLine also very much feels that this would be helpful.
Given the effect on the rest of the lives of these children, as my noble friend Lady Benjamin mentioned, a little bit of over-referral would not necessarily be a bad thing, because it will soon come out in the wash. If they do not need any help, it will soon be found out and the help will stop if it is not needed. The National Health Service is not going to give a whole lot of help to people who do not need it—it does not have the money. But the fact is that most of them do need it and it is not happening. After 16 years, I cannot believe that we are still here.
I will of course consider what the Minister has said and make further inquiries between now and Report stage in case it is not necessary, although I think it is. For the moment, I beg leave to withdraw the amendment.