Wednesday 16th November 2016
(8 years ago)
Lords ChamberRead Hansard Text Amendment Paper: HL Bill 55-V Fifth marshalled list for Committee (PDF, 129KB) - (14 Nov 2016)
Lord Rosser (Lab)
My Lords, I will be brief. These amendments cover a serious and disturbing issue that has received considerable publicity in recent months. The purpose of the amendments, as I understand it, is to tighten and extend the reach and scope of the law in respect of disclosure of private sexual photographs and films without consent and with malicious intent. They include new clauses on compensation and anonymity for victims. At this stage we will listen with interest to the Government’s response, including the extent to which they consider that the law as it stands is sufficient—or, alternatively, needed—to deal with any or all of the issues addressed in the amendments.
The Minister of State, Home Office (Baroness Williams of Trafford)
My Lords, as the noble Lord, Lord Marks, has explained, this group of amendments all relate to what is commonly referred to as revenge porn, as provided for in Section 33 of the Criminal Justice and Courts Act 2015. Amendments 216 and 217 seek to extend significantly the scope of the offence, but the Government consider that the offence is working well. I am pleased to see my noble friend Lord Faulks in his seat; as he said, there have been more than 60 convictions for the offence since it came into force in April last year.
The offence is deliberately tightly drafted to target those individuals who have disclosed private and sexual images without consent, and with the intention of causing distress to the individual depicted. We are not persuaded that a sufficiently strong case has been made for broadening the scope of the offence, as proposed by the two amendments.
The general effect of Amendment 216 would be to significantly extend the range of material that could be considered private and sexual for the purpose of the offence. Currently, the offence is drafted to capture material that is sufficiently sexually explicit that its dissemination would be likely to cause real distress to those depicted. The offence also provides that images that are photoshopped—for example, so that a non-sexual image of an individual becomes sexual—should not be covered by the offence. This is because the disclosure of such an image, though still distressing, does not have the potential to cause the same degree of harm as the disclosure of an undoctored photograph showing images of the kind referred to in Section 35(3) of the 2015 Act. The noble Lord, Lord Pannick, made some interesting observations to that end. To alter the definition of “sexual” as proposed in Amendment 216 would, in our view, unjustifiably extend the scope of the offence.
Regarding the extension of the offence proposed by Amendment 217, we see no need to capture those who threaten to post such images. The offence, rightly, deals only with the act of actually disclosing private and sexual images, as it is the disclosure of the images that causes the harm which criminalising this behaviour seeks to prevent. As my noble friend Lord Faulks says, threats to disclose could, depending on the circumstances, be captured by existing offences that tackle harassment, malicious communications or, of course, blackmail. It is also difficult to see what would be gained by including an intention to cause fear or alarm to the victim, as distress is sufficiently broad a term for these purposes. Amendment 217 also seeks to make it possible for the offence to be committed recklessly as well as intentionally. The offence is targeted at those who deliberately seek to cause distress to victims through the dissemination of private and sexual material. This malicious intent—the revenge element of revenge porn, so to speak—is a key feature of the offence and we believe it would be wrong to dilute this by applying the offence to conduct that is the result of recklessness rather than a deliberately malicious act. Similarly, the proposal to extend the offence to those who,
“knowingly promote, solicit or profit”,
in relation to revenge porn material would shift the emphasis from those who disclose the relevant images with malicious intent, the mischief which this offence is intended to address.
Baroness Williams of Trafford
My Lords, I thank all noble Lords who have spoken in the debate. The variety of views on this subject speak to me of just how difficult an issue it is. I also particularly thank the noble Baroness, Lady Brinton, the only woman apart from myself to speak in the debate. This is a very sensitive issue, and many noble Lords have talked about getting the balance right. We think that the Government have got the balance right, and I will explain why.
I shall start with the report by Richard Henriques on the Metropolitan Police Service’s handing of its investigations into allegations of sexual offences by persons of public prominence. That is a further element contributing to the debate. In answer to the point made by my noble friend Lord Attlee, I have been fully briefed on that report. It was commissioned by the Commissioner of the Metropolitan Police, and as I said to this House the other day, the report—including its publication—is a matter for him and for the force. The commissioner has made a public apology to Lord Bramall, to Lady Brittan and to Harvey Proctor for the impact that Operation Midland had on their lives.
At the outset, let me say that the Government fully understand the anguish felt by those who have had their reputation traduced in the media following unfounded allegations made against them. The notion that someone is innocent until proven guilty is central to our justice system and to the rule of law, so the Government have every sympathy for the underlying aim behind the amendment. I will not go into what should be redrafted, but will talk about the amendment as it stands.
The Government also start from the position that there should, in general, be a presumption of anonymity before the point of charge. I believe that there is also a general acceptance that there will none the less be exceptional circumstances in which the public interest means that a suspect should be named. If there is a divide between noble Lords and myself on this issue, it is not therefore one of principle but is about how best to give effect to the shared policy position. For the Government’s part, we are not persuaded that legislation is the right way forward at this time.
One of the principal arguments put forward in support of retaining the public interest exception is that, as the noble Lord, Lord Pannick, said, there will be circumstances in which the police need to publicise a person’s identity to allow further witnesses to a known offence to come forward, or further unknown offences by the same person to come to light. As he also said, witnesses can come forward at a trial only if there is, in fact, a trial. He also made the further point that the accused could themselves create their own publicity around an event.
As the current Prime Minister said in response to the previous Home Affairs Select Committee on this issue,
“While we are clear that transparency and consistency should be at the heart of the criminal justice system, … we recognise that there is a difficult balance to strike in some criminal investigations between the operational advantages of naming suspects and respecting suspects’ right to privacy”.
As noble Lords will know, the issue of anonymity in relation to sexual offences has been debated in this House over many years. Anonymity for complainants in rape cases was introduced in 1976. It was subsequently extended to sexual offences generally. Anonymity for defendants who have been charged with an offence was introduced at the same time, but abolished in 1988. Defendant anonymity was subject to exhaustive consideration before and during the passage of the Sexual Offences Act 2003.
As the noble Lord, Lord Rosser, said, in 2010 the then coalition Government published independent research relevant to defendant anonymity in rape cases, which found,
“insufficient reliable empirical evidence on which to base an informed decision on the value of providing anonymity to rape defendants. Evidence is lacking in a number of key areas, in particular, whether the inability to publicise a person’s identity will prevent further witnesses to a known offence from coming forward, or further unknown offences by the same person from coming to light”.—[Official Report, Commons, 12/11/10; col. 27WS].
The coalition Government declined to proceed with introducing defendant anonymity in rape cases unless the evidence justifying it was “clear and sound”. In the absence of any finding to that effect, they reached the conclusion that the proposal did not stand on its merits and would not be proceeded with further.
While the amendment before us would confer anonymity on suspects rather than defendants, I note the preceding history to highlight the challenges we face in coming to an equitable view on this sensitive issue. There are powerful arguments against conferring anonymity on either suspects or defendants of sexual offences simply as a quid pro quo for that enjoyed by complainants. However, I also recognise that those whose identity is made public, be they persons of public prominence or not, may suffer unjustifiable reputational damage. Noble Lords have given many examples of those individuals. While we may personally empathise in individual cases, this should not blind us to the bigger picture and the very significant reasons that underpin the current regime.
As I have said, it is a fundamental tenet of our justice system that everyone is innocent until proven guilty. There must never be an assumption that being charged or arrested for an offence indicates that a person is guilty of a crime. Introducing a statutory scheme for pre-charge anonymity for sexual offences could be seen to undermine that principle. Indeed, while it is true that a suspect who is not further proceeded against in respect of a sexual offence may nevertheless suffer reputational damage, the same may be true of any other serious offence, such as murder, theft or fraud, as noble Lords have said. As with these other offences, it is absolutely right and proper for the police to have operational independence in deciding whether to name a suspect.
The police are guided in making such decisions by the College of Policing’s authorised professional practice material Guidance on Relationships with the Media. The current guidance makes clear that decisions should be made only on a case-by-case basis and the police should not release the names of those who are arrested or suspected of a crime unless there are clearly identified circumstances to justify it. These would include incidences, for example, where there is a threat to life or to assist the police in the detection or prevention of crime.
The College of Policing is currently developing new authorised professional practice on media relations and has recently undertaken a consultation as part of its development. The consultation closed in July and the college expects to publish its response to the consultation in the new year. It would not be right, therefore, for the Government to pre-empt the outcome and we will await the conclusion of the college’s review. However, the Government firmly believe that non-statutory guidance, rather than primary legislation, is the appropriate vehicle for guiding the police in these operational decisions. It is vital that the police are able to exercise their own judgment and act swiftly in the circumstances where releasing the name of a suspect may prevent further harm, for example.
I must emphasise that public reporting of a suspect’s name is unusual, but in certain circumstances the police authorise release so that any other potential victims of a suspect are encouraged to come forward. The introduction of a statutory scheme would hamper the police’s ability to act in this way. We know that such identification can help other victims to recognise that they are not the only ones who have suffered sexual abuse—as the noble Lord, Lord Rosser, rightly articulated—and this might encourage them to overcome their reluctance to come forward. Victims must feel that they are able to come forward and report abuse to the police as well as get the support that they need. We have seen recently an increase in the number of offences recorded. That is thought to be the result of increased willingness to report among victims and action taken by police forces to improve their approach to investigating sexual abuse. As the noble Lord, Lord Rosser, said, convictions for this offence are still woefully low.
In March this year, the chief executive of the College of Policing, Alex Marshall, wrote to all chief officers and PCCs following a number of high-profile cases concerning non-recent child abuse which had focused public attention on the police approach to victims, both at the point of reporting and in investigating the crime. Mr Marshall’s letter put on record that:
“In cases involving sexual offences, substantial efforts have been made to improve the confidence of victims to come forward and report crimes to the police. It is important that progress is not lost”.
I cannot emphasise this point enough. We must not undermine victims’ confidence in our response to sexual offences. Agreeing this amendment could send a message to sexual offence victims that they are less likely to be believed than victims of any other crime. This would be an undeniably retrograde step.
As has been highlighted in the debate we have had today, there are two issues in relation to this matter. The first is the right of the police to name individuals and the second relates to cases in the media where those being investigated, but who have not been charged, have been named. A number of these cases highlighted in the media have been as a result of information being provided not by the police but from other sources. The guidance from the college to the police does not interfere with the rights of the media to publish information obtained from another source, for example, where such information is provided by a victim of crime or a witness to the crime. The press is self-regulated and develops its own codes of practice. Any reporting which breaches an individual’s right to privacy would need to be demonstrably in the public interest. The Government are committed to an independent press, free from government interference. The majority of the press are members of the Independent Press Standards Organisation and are held to account via the Editors’ Code of Practice. The code stipulates:
“Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications”.
As noble Lords will be aware, we already have a number of remedies in our justice system to redress the balance where individuals feel they have been treated unfairly—
Lord Campbell-Savours
May I ask the Minister a simple question? She used the phrase,
“demonstrably in the public interest”.
What was demonstrably in the public interest in the naming of Sir Cliff Richard for an offence he did not commit, and Leon Brittan, Ted Heath and Paul Gambaccini? What was demonstrably in the public interest in those cases?
Baroness Williams of Trafford
My Lords, I will not talk about individual cases, and noble Lords would not expect me to do so. I am talking about the code of practice for the press. I have also just talked about the guidance from the College of Policing. We are committed to an independent press. Noble Lords will already be aware that we have a number of remedies in our justice system to redress the balance where individuals feel they have been treated unfairly by the media and others. This includes resolution through the courts.
In conclusion, and for the reasons I have outlined, I am satisfied that there is an operational need for the police to be able to determine whether to name an individual ahead of charge and that adequate provisions already exist in current legislation and practice to safeguard those accused of a crime without the need for legislating for pre-charge anonymity. I hope that at the end of this rather long debate the noble Lord will feel able to withdraw his amendment.
Baroness Williams of Trafford
My Lords, I thank the noble Lord, Lord Marks, for raising the important issue of the protection of complainants of rape and sexual offences from being questioned about their sexual history. It is vital that victims have confidence to report crimes as terrible as rape and in the criminal justice system’s process of bringing offenders to justice. Our message to those who are willing, but currently worried about reporting such offences, is that they are encouraged to do so. As my noble friend Lord Hailsham says, Section 41 of the Youth Justice and Criminal Evidence Act 1999 provides that questions about a complainant’s sexual history are not allowed in rape and sexual offences trials. This is except where a strict set of criteria are met, so they are rare. The legislative bar on adducing evidence of a complainant’s sexual history is high and decided by judges on a case-by-case basis. The case that has prompted concerns about how the protective bar is operating has made no change to that.
We are aware of the recent concern about the admissibility of a complainant’s previous sexual history, and wider perceptions about the law. We accept that the concern should be looked at and we intend to deal with it. We have committed to looking at how the law is working in practice and will do so as expeditiously as possible, to understand whether any further action needs to be taken.
The noble Lord also asked whether anything has followed on from the 2006 Home Office study. The evaluation in 2006 made recommendations to ensure that the intention of the legislation would be fulfilled. There was no finding of a need to change the legislation substantially at that point.
With that brief explanation, I hope the noble Lord feels happy to withdraw his amendment.
Lord Kennedy of Southwark
Can the Minister be clear from the Dispatch Box as to whether she has announced the review?
Baroness Williams of Trafford
My Lords, we have carefully considered the concerns that have been raised about the provision and we will then determine how best to look at how it is working in practice before deciding whether any further action needs to be taken. We are going to do it as soon as possible.
Lord Marks of Henley-on-Thames
My Lords, the noble Lord ought to be cross-examining himself because he has just secured a concession by excellent advocacy, which I failed to do—or I did, but not in such clear terms. In view of that, I will withdraw the amendment.
I disagree with the noble Viscount, Lord Hailsham, on only one point, which was his assertion that I disagreed with him because I said, when speaking to this amendment, that there may be those rare cases where a dispassionate observer might think the exclusion of a relevant account could lead to injustice and unfair convictions. The point here, and the point we seek to have reviewed, is whether, as a result of the Ched Evans case, there might be cases where the restrictive nature of Section 41 has been or may be watered down. We need to look at how it is operating. It is very important that rape gets reported and that the legislation in place is certainly as restrictive as we always thought Section 41 was and as the textbooks say it is. The public concern is that this case seems to have weakened that protection; I am sure the review will take that point on board. I beg leave to withdraw the amendment.
Baroness Deech (CB)
My Lords, I did not put my name to this amendment because there were enough people already, but I used to teach family law, including the law of marriage. In this country, it is very easy to get married in a registry office or in a properly registered religious place. You can get married in a hotel if you want to or you can have a civil partnership. There are all sorts of official unions that you can make very easily, but the worst of all possible worlds is to be duped into believing that you are married in a religious ceremony and then find that you are not, because you lose any protection that English law gives you, while at the same time, stereotypically, your husband—if he is really your husband—can abandon you or take another wife.
This is not just a question of running parallel systems of law: it is about the protection of women and the need to preserve transparency and regularity in people’s marital status. All that is necessary is for more mosques to become registered as proper places of marriage, just in the way that synagogues are, and all would be resolved. I see no arguments against this amendment at all. It is overdue.
Baroness Chisholm of Owlpen (Con)
My Lords, I have listened carefully to the arguments made by the noble Baronesses, Lady Cox and Lady Deech, my noble friend Lady Buscombe—who made an excellent speech—and the noble Lord, Lord Alton. As has been said, the noble Baroness, Lady Cox, has done so much to raise in this House the problem of marriages that are not legally binding and that therefore do not carry the legal rights and responsibilities of a legally binding marriage. I recognise that she has spoken to many women in this situation and has sensitively presented their evidence to your Lordships this evening and on other occasions. There is particular cause for concern if one or both of the parties is unaware of their lack of rights or coerced into a marriage.
There is a strong tradition of religious marriages in England and Wales, with a long-established right that couples are able, in their place of worship, to enter into a marriage that is legally contracted, provided that the requirements of the law are met. Some people, for religious or other reasons, have preferred to enter into a marriage that is not capable of legal recognition. To make it illegal to conduct, or enter into, religious marriages that are not legally contracted is likely to be an overly complex solution and one that restricts personal choice. It is also unclear how many unregistered religious marriages would take place in breach of any change in legislation, since, by their nature, public notice of these marriages would not be given. I am sure that noble Lords appreciate the complexity of legislating in people’s private and religious lives.
We are conscious that there are complex issues behind religious marriages that are not legally valid, including where people use a religious ceremony to give recognition to an additional spouse, and so we do not consider that any one approach to Muslim or other faith communities can work in isolation. Of course, we are also aware of concerns that some women can be put under pressure to use the services of religious councils, including sharia councils, to arrange matters on the break-up of the relationship and that these women are not always treated equally when recommendations are made.
One of the issues that the noble Baroness highlighted was that of child custody, a matter raised by women to whom she has spoken. In fact, it is not the case that women have few or no rights in this matter, although they may well not be aware of their rights. In England and Wales, where there is any dispute between parents about arrangements for their children, either parent may apply to the family court for one or more types of order under the Children Act 1989. Most commonly, this will be a child arrangements order determining who a child is to live with or spend time with, and where and when this is to happen, referred to respectively as custody and access in many other jurisdictions. These proceedings are free-standing. This means that a parent is entitled to make an application to the court at any time, simply by virtue of being the parent of the child concerned and regardless of the status of their relationship with the other parent. There is no distinction for this purpose between legally married parents, unmarried parents, parents in a religious marriage that is not legally binding, parents who are otherwise cohabiting or, indeed, parents who are living apart.
On the issue of polygamy, noble Lords will be aware that polygamous marriages cannot be legally contracted in the UK. Attempting to enter into a polygamous marriage under the law of England and Wales is a criminal offence which carries a maximum sentence of seven years in prison. Nor is it possible for anyone domiciled in the United Kingdom to enter into a polygamous marriage abroad. Where a polygamous marriage is contracted within the law outside the United Kingdom between parties neither of whom is domiciled in the United Kingdom, it will be recognised by the court. The Government continue to support the law preventing polygamous marriages from being entered into in England and Wales.
The Law Commission has also given initial consideration to the issue of religious marriages that are not legally valid. It published its scoping study in December last year setting out the parameters of a potential review of the law concerning how and where people can marry in England and Wales, following consultation with a wide range of religious organisations and other interested parties. The scoping study concluded that this was one of a number of issues that might be ameliorated through a fairer and more coherent framework for marriage. The Law Commission also considered that offences relating to the celebration of marriage should be reviewed. It would not make sense for the Government to introduce a new criminal offence, such as that proposed by this amendment, without evidence of the scale and nature of the problem and without consideration of how the new offence would fit within existing marriage law.
The Government are carefully considering the Law Commission report and will respond in due course. We will also wish to consider the issue of unregistered religious marriages in light of the findings of the independent sharia review, launched in May by the current Prime Minister. The Government share the noble Baroness’s concerns and take them very seriously indeed. These concerns are central to the independent sharia review and involve the equalities, justice and faith and integration agendas across government. I thank the noble Baroness for raising again this important issue and the very real consequences for people’s lives.
My noble friend Lady Buscombe asked how many sharia councils there are across Europe. I do not have a number; I will have to go away, look into it further and write to my noble friend. I trust that the noble Baroness, Lady Cox, will understand the need to wait for the Government’s response to the Law Commission report and the sharia review and, on that basis, will withdraw her amendment.
Baroness Cox
My Lords, I am very grateful to all noble Lords who have contributed to this debate and those who have supported this amendment and made some very powerful additional arguments. I thank the Minister for the sympathy that is there in her response, but I feel some concern over the apparent lack of a sense of urgency about the need to address the real suffering that is going on at the present time. To wait for the outcomes of the reviews leaves these women in a terrible situation. The gap, the chasm, between the de facto realities and the de jure realities is one into which these women are falling and suffering in ways that should not be allowed in our country today. These issues are urgent: women are suffering on a large scale. I intend to take this debate back to my colleagues, with whom I am sharing these concerns, to consider the most appropriate ways forward. I am very grateful for what has been said tonight; we can learn from it ways to proceed to help the women suffering in these appalling situations. In the meantime, I beg leave to withdraw the amendment.
Baroness Williams of Trafford
My Lords, I am very grateful to the noble Lord, Lord Kennedy, for bringing this forward and drawing attention to what is a very important issue. Exploitation of, and offences against, children, whether online or offline, are appalling and this Government are committed to tackling such criminality very robustly. The internet has opened up a wealth of opportunities for young people, but it has also exposed them to new dangers.
The Government are committed to improving the safety of children online and have a strong track record of working with the internet industry and the charitable sector to achieve it. However, we also recognise that our understanding of the scale and nature of the problem is far from complete, and in many ways we almost feel that we are running to stand still.
Our starting principle is that what is illegal offline is illegal online and criminal offences typically apply in both environments. However, recognising that the picture is less clear in relation to offending online, the annual data requirement on forces includes a requirement to flag offences where the reporting officer believes, on the balance of probability, that the offence was committed, in full or in part, through a computer, computer network or computer-enabled device. This online flag has been mandatory since April 2015, and all 43 forces in England and Wales have provided data since then.
The NCA’s annual strategic assessment of child sexual exploitation and abuse, published in August, found that the visibility of the threat was improving, but that there remained significant intelligence gaps in relation to the overall scale and prevalence of the threat. The NCA works continually to improve our understanding of the threat. I reassure the noble Lord and the noble Baroness that our response to the threat is rightly robust and includes law enforcement agencies taking action against online offenders, developing new capabilities to find and safeguard victims and working with the internet industry to remove illegal images.
For example, all UK police forces and the NCA are now connected to the Child Abuse Image Database—otherwise known as CAID—which reduces the time taken to undertake investigations and identify the victims. A new victim identification suite has been established by the NCA with access to CAID. In 2015-16, UK authorities identified over 450 victims from abuse images, more than double the number of any previous year and, in a recent case, the Child Exploitation and Online Protection command of the NCA was able to use CAID to review one of its largest ever seizures within six weeks. Based on the case size, before CAID this would have taken a minimum of six months to review.
In 2015-16, the NCA received £10 million of additional investment for further specialist teams to tackle online sexual exploitation. This enabled a near doubling of its investigative capacity to tackle child sexual exploitation. An NCA and GCHQ joint operational cell has also been established to target the most technologically sophisticated offenders. In 2015, 2,861 individuals were prosecuted for offences involving indecent images of children—a 27% increase on the previous year.
I hope I have persuaded the noble Lord that we are working to improve our understanding and our response to the threat and that he will withdraw his amendment.
Baroness Hamwee
My Lords, to add to what I said before, I think that there is a very important role for the Home Office, working in conjunction with the police and many others, on the consistency of the data, to which this amendment refers but perhaps a bit obliquely. It seems to be an issue that comes up time and time again. Yesterday a report was published by ECPAT and Missing People on young people going missing from care and one of the recommendations was about achieving consistency of data.
Baroness Williams of Trafford
It might please the noble Baroness to know that I have become the Minister for data and therefore anything that she can feed into the job that I will be doing will be most appreciated.
Baroness Hamwee
My Lords, I can sum up my comments really as, “as above”. The points I made on the previous amendments are relevant, although the report I have just mentioned called Heading Back to Harm is particularly relevant here. There are so many associated issues that I would prefer the focus to be on practice—I will add it to my point about data—including trust in authority. In some situations, lack of trust in authority is a big component in young people who have been rescued going missing again. I do not underestimate the importance of the issues at the heart of this. Can the Minister give the Committee any information about the success of child abduction warning notices, where they apply, now, before we seek an extension?
Baroness Williams of Trafford
My Lords, Amendment 220 would create a new offence of abduction of a vulnerable child aged 16 or 17. The offence would be in addition to the existing offence in Section 49 of the Children Act 1989, which already makes it an offence to abduct a child in care, including those aged 16 and 17. The new offence would also be in addition to Section 2 of the Child Abduction Act 1984, which makes it an offence to abduct any child under the age of 16. The new offence would extend only to children aged 16 and 17 who are considered to be vulnerable and therefore in need of additional protection.
The criteria for being considered vulnerable are set out in subsection (2) of the new clause and cover a range of circumstances defined in the Children Act 1989 and Housing Act 1996. These criteria potentially encompass a wide range of individuals and raise concerns that they would have very wide effect. For example, as drafted, the offence would cover all disabled young people of that age. The children it extends to are often in need of services such as housing and education but are not necessarily in need of special protection, as opposed to others of that age.
The Government completely share the objective of the noble Lord and the noble Baroness of ensuring that young people are protected from sexual exploitation and other abuse. That is why, in March last year, we introduced new civil orders to protect the vulnerable and disrupt offending at the earliest opportunity. We believe that providing the right powers to the police is the way forward. Our priority is to prevent offending, so making better use of these orders is a more precisely targeted response than creating a new criminal offence.
As noble Lords will be aware, a similar new clause was tabled in the House of Commons and there have been amendments to previous Bills on this issue. We remain unpersuaded that the proposed new abduction offence is the way forward. Young people aged 16 and 17 are generally deemed capable of living independently of their parents and of exercising their free will, notably on sexual matters. As noble Lords have said, we therefore need to achieve the right balance between additional protection for young people in this age group and recognition of relevant rights and responsibilities. Creating a new offence would raise difficult issues about where we draw the line, and it would not help young people who are older than this age group but are also very vulnerable.
That is why we believe that sexual risk orders provide appropriate powers for the police. I do not have the figures or any information on how the child abduction warning list is working; it might be in my pack. I apologise—I am getting quite tired at this stage of the day. I will write to the noble Baroness. The preventive civil orders are relatively new and we will therefore keep under review whether they fully address the kind of predatory behaviour to which the amendment refers.
Turning to Amendment 222, it is very important that we get the right balance in national reporting of data. This Government have already introduced a new mandatory requirement for all forces to collect data on child sexual abuse and child sexual exploitation offences as part of the police annual data requirement, and from next April we will be expanding that requirement to include non-crime incidents related to CSE as well. This means that for the first time, we will have all child sexual abuse and exploitation-related crimes and incidents recorded by the police. This will allow for all sexual offences against children to be identified; for example, it was previously not possible to identify obscene publication offences that are specifically related to victims aged under 18.
We are working closely with the police to monitor and review the use of the new sexual risk orders, as well as child abduction warning notices, in order to ensure they are effective in protecting children who are at risk of sexual harm. I think that is precisely the noble Baroness’s point. As child abduction warning notices are part of an administrative process, the police do not regularly record the number issued. This means that, in practice, this amendment would place a significant and disproportionate new burden on the police manually to interrogate their systems.
We agree on the need to do all we can to disrupt predatory behaviour before it causes lasting harm to children and young people. The Government remain unpersuaded that the approach proposed in these amendments is the right way forward. In order better to understand the issues raised and to create an evidence base for the use of existing powers—that is the important thing here—we have set up a working group that will monitor the use of sexual risk orders so that we can fully evaluate whether there are gaps in police powers to disrupt at the earliest opportunity. I expect this group to report to Ministers in the autumn of next year, and we will consider its findings very carefully.
I hope the noble Lord will feel content to withdraw the amendment.
Baroness Hamwee
My Lords, we on these Benches support our noble friend Lady Brinton. I do not want to detain the Committee so will make just a couple of comments. When discussing matters such as trafficking and slavery, I often hear that these issues are where domestic violence was 20 years ago. It is very concerning to hear about the treatment of women—and men—who have suffered domestic violence in the way that my noble friend has described. That is not progress over the past 20 years.
There is another argument for my noble friend’s various amendments, which I do not think she mentioned; that is, obtaining the best evidence from victims who are also witnesses. These are very sensitive issues and one hears of very good practice by some police forces and some members of the judiciary. It is a question of spreading that good practice. There is an awful lot raised in these amendments, including the very delicate issue of ticketing for the judiciary dealing with certain cases. This is not the moment to go into that but the implications of the amendments need to be taken on board over a very wide area of practice. The Committee should be grateful to my noble friend and the noble Lord for ensuring that they are raised. It is a pity that, coming to the end of Committee, we are not able to do them the justice that we would all like to do them.
Baroness Chisholm of Owlpen
My Lords, I thank the noble Baroness, Lady Brinton, and other noble Lords who have spoken, for raising the important issue of victims’ rights.
It is crucial that the needs of victims of crime are given proper consideration at every stage of the criminal justice process. We published a revised Code of Practice for Victims of Crime, which came into force in November 2015. As a result, victims of all criminal offences, not just victims of more serious offences, are entitled to support under the code. The code provides victims with a range of entitlements, including information about their case, interpretation and translation, and for them to be treated in a respectful and professional manner without discrimination of any kind. Furthermore, the code requires police and other service providers to have a complaints procedure. If victims are dissatisfied with the outcome, they are able to refer their complaints to the Parliamentary and Health Service Ombudsman via their Member of Parliament.
It is essential that victims receive the best possible support to help them cope with and recover from what they have been through. We have a raft of arrangements in place which ensure that victims have access to a wide range of emotional, practical and specialist support determined by and tailored to their needs; wherever possible, this support is accessible locally. We are committed to ensuring that victims get the support they need and have protected the overall level of funding for victims across the spending review period, with over £95 million being provided in 2016-17 to fund crucial support services, including £7 million for the provision of support for victims of child sexual abuse, in recognition of increasing demand. Of the £95 million, we allocated over £67 million in grant funding to police and crime commissioners, who are using that funding to commission local services. The Justice Secretary has recently agreed to extend grant funding to all the nationally funded organisations for 2017-18 while we consider the current mixed model of commissioning national and local services.
We recognise the importance of training for professionals who work with victims. Organisations are responsible for ensuring the highest-quality training for their staff to ensure that victims receive the best possible service and support. However, we also recognise that more can be done. That is why we are working to place victims and witnesses at the heart of a justice system that works for everyone. We recently announced the national rollout of pre-trial cross-examination in 2017 to improve the support available for vulnerable witnesses. We are also investing close to £1 billion to reform and digitise our courts and tribunals. This will improve the experience for all court and tribunal users, including vulnerable victims and witnesses. Furthermore, we have committed to introduce further measures to strengthen the rights of victims of crime. It is important that we take the time to get this right, and we will announce our plans in due course.
Finally, the proposal for homicide reviews is also unnecessary. If the family of a victim has concerns about a closed homicide case, this can be looked at again under the Crown Prosecution Service’s recent guidance, Reviewing Previously Finalised Cases, to determine whether or not a review should be conducted.
Having had this opportunity to debate these important issues, and in the knowledge that the Government will be bringing forward proposals to strengthen the rights of victims, I ask the noble Baroness to withdraw her amendment.
Baroness Brinton
I thank the Minister for her reply, and the noble Lord, Lord Rosser, and my noble friend Lady Hamwee for their contributions. I am pleased that the Government will be looking at this but the difficulty is that much of what we have heard from the Minister does not address the soft issues that face the day-to-day running of any case in the criminal justice system, which are causing many of the problems. I wonder if the Minister would be prepared to meet over the next few weeks to talk through some of these issues. I see she is nodding. I am very grateful. With that, I beg leave to withdraw the amendment.
Baroness Chisholm of Owlpen
I am grateful to the noble Baroness, Lady Brinton, for raising the issue, and all noble Lords who have taken part.
The Government acknowledge that it is of great importance that ethnicity classifications of children and young people in the youth justice system are robust and accurate. Noble Lords will recall that the Prime Minister announced in August an audit of public services to reveal racial disparities and to help to end the injustices that many people experience. At present, youth custodial establishments and youth justice agencies, such as youth offending teams and the Youth Justice Board, are not required by legislation to use a particular system of ethnic monitoring; these amendments would change that.
In 2011, the National Offender Management Service adopted the 18+1 system on the centralised operational database used in prisons and young offender institutions for the management of offenders, following the change of classifications for ethnicity within the national census. However, it is the case that the new classification is not consistently used by secure children’s homes, secure training centres and youth offending teams. In principle, we agree with the aim of using the 18+1 classification, and the Government are ready to examine whether and how this could be done consistently across youth justice agencies and custodial establishments. I should point out, however, that such a change can be delivered through administrative means rather than through legislation. We feel that such an approach is preferable, given that to enshrine the 18+1 code in legislation would inhibit future flexibility in the event that the Office for National Statistics were to decide to change the 18+1 code system and introduce a new system of ethnicity classifications.
Although we support working towards consistency in terms of the data that we are recording, I hope that the noble Baroness would recognise that the universal adoption of the 18+1 code would require youth justice agencies to make a significant number of technical changes to a range of data systems, as the noble Lord, Lord Rosser, mentioned. This is because many existing IT and data collection systems are designed only to accommodate the 16+1 classification. For this reason, we believe the impact on agencies and custodial establishments must be explored and analysed and appropriate approaches identified.
I do not have costings at the moment, and will have to get back to the noble Lord on that point—although, interestingly enough, inspiration has appeared over my left shoulder. However, I am not sure that it is going to be that helpful. I have no information on the cost of the necessary IT changes. Clearly, they would need to be identified and factored into the work that would need to be done as youth justice agencies moved to the 18+1 system. I shall make inquiries as to whether further information is available and write to noble Lords. I am afraid that I do not have much more to add.
In conclusion, the noble Baroness has highlighted a valid issue. We support the broad aim of these amendments and will consider further the practical implications of embedding the 18+1 code system throughout the youth justice system. I hope that, on this basis, the noble Baroness would be content to withdraw her amendment.
Baroness Brinton
I thank all those who have contributed to this debate on this very important issue, including the noble Lord, Lord Alton, the noble Baroness, Lady Whitaker, the noble Baroness, Lady Bakewell of Hardington Mandeville, the noble Earl, Lord Attlee, and the noble Lord, Lord Rosser—and particularly the noble Lord, Lord Rosser, for highlighting in detail the issues that I felt that I did not have time to go into on what is happening with the IT system. I put it on record, too, that the noble Lord, Lord Ouseley, the noble Baroness, Lady Young of Old Scone, and the noble Lord, Lord Judd, wanted to speak in this debate but, because the date has moved on, were unable to be in their places.
I thank the Minister for her comments, although I was slightly startled by her opening statement about this new system of ethnicity. It is new only to the youth justice system. It is in use absolutely everywhere else. I am not intending to suggest that the Minister was saying anything else, but that is the whole problem—that there is a particular section of the criminal justice system that is not using the same databases as everybody else. We know from the example that the Minister quoted of the W3 Gypsy or Traveller code being added to P-NOMIS that the Irish chaplaincy has reported that many prisons are holding Traveller groups, appointing Traveller reps and holding Traveller history months—and, what is more, there is an increase in uptake of education by more than 10% among Traveller prisoners. That is a sign of real success. Surely young Gypsy and Traveller children who are in the system early on deserve that support the moment they come into the system. I hope that we can keep the doors open to discuss the matter as a matter of urgency. I beg leave to withdraw the amendment.
Lord Kennedy of Southwark
My Lords, Amendment 228C in the names of the noble Lords, Lord Wigley and Lord Ponsonby, and the noble Baroness, Lady Howe, seeks to insert a new clause into the Bill. As we have heard, its aim is to provide additional protection for victims or witnesses of a serious sexual offence, using the test of whether it is reasonable to assume that a disclosure of the person’s identity,
“would put the victim or witness at risk of further harm”.
It is right to include the rights of victims and witnesses in primary legislation where possible, and this is what the amendment seeks to do. Both victims and witnesses of serious offences can be very traumatised by what has happened to them or what they have witnessed. The disclosure of the name of the victim or witness to the person alleged to have committed the offence could put them at risk of further harm, as we have heard, or of fear of further harm. That, in itself, can cause additional stress and trauma for the victim or witness. Therefore, this amendment would place a specific duty on the police, when considering releasing the names of victims or witnesses to the accused person, to take into account the matters listed in new subsections (2) and (3) of the proposed new clause. That would be a sensible and welcome move, and I hope the noble Baroness will respond positively to the amendment.
I fully endorse the comments of all those who have spoken to the amendment. I was particularly surprised to hear my noble friends Lord Ponsonby and Lady Cohen say that the police have no idea what the policy is in this area. I am amazed by that. I certainly fully endorse the amendment.
Baroness Chisholm of Owlpen
My Lords, as the noble Lord, Lord Wigley, explained, this amendment seeks to grant victims or witnesses of sexual or violent crime anonymity in cases where it is reasonable to assume that disclosure would put them at risk of further harm. The noble Lord has indicated that he is particularly concerned with cases of so-called “stranger rape”.
I say from the outset that I agree wholeheartedly that the criminal justice system must support and protect victims and witnesses, particularly victims of sexual offences who are especially vulnerable. There are already a number of means whereby those at risk of further harm can be safeguarded and I will briefly itemise these in a moment but, before doing so, I must point to a central difficulty with the noble Lord’s amendment. The overarching principle of our criminal justice system is that the defendant must be given a fair trial. This is clearly stated in Article 6 of the European Convention on Human Rights. Fundamental to this is the right of the accused to be informed promptly, in a language which he understands, and in detail, of the nature and cause of the accusation against him. I am sure the noble Lord accepts that the accused cannot be expected to defend himself properly at trial if he does not even know who is accusing him of the alleged crime. This amendment would fundamentally undermine that cornerstone of our justice system.
That is not to say that there should not be crucial safeguards in place for victims and witnesses who have had the grave misfortune to experience violent or sexual crimes. As I have indicated, there are already multiple mechanisms the police and courts can employ to protect victims. Where necessary for the purpose of the investigation, the police can seek to detain the accused for up to 96 hours pending charge and seek to have him or her remanded in custody post-charge. If it is not possible to bring charges within the time limits on pre-charge detention, the suspect can be bailed subject to conditions which prohibit contact with the victim.
There are also established provisions in legislation for witness protection programmes and the provision of special measures during criminal proceedings; for example, a complainant can give evidence via a live link or behind a screen.
There is already provision for anonymity of complainants or witnesses, to be used as an exceptional measure of last practicable resort. A witness anonymity order can be granted by the court if it is satisfied that their identification would adversely affect the quality of evidence given by them, or their level of co-operation with the prosecution. The Director of Public Prosecution’s guidance on witness anonymity is clear that where the prosecution cannot present its case in a way that allows the defendant to defend themselves, it is under a duty to stop the case, no matter how serious the allegations may be. Hence, this must be very carefully considered when deciding whether to grant victim or witness anonymity—fair, equal and open justice for all must be the imperative.
While I have every sympathy for the noble Lord’s objective of protecting vulnerable victims and witnesses, I hope he will accept that the blanket approach provided for in his amendment is fundamentally at odds with our system of justice and the right of the accused to a fair trial. It is important to remember that the accused is just that: accused. He or she is not convicted, and is presumed innocent until proved guilty. This amendment arguably assumes guilt and undermines the protections and safeguards against miscarriages of justice of which this country is justly proud. Moreover, there are already a number of mechanisms available by which victims and witnesses can be supported through the criminal justice process. Given these points, I hope that the noble Lord will be content to withdraw his amendment.
Baroness Brinton
My Lords, one of the major concerns is that stalking is not used as a charge often enough. It is still too easy to charge with the offence of harassment, rather than stalking. We really need to make sure that the criminal justice system recognises and understands stalking—that was the law reform in 2012 that we worked hard to achieve. However, it is also important to recognise that some cases of stalking are consistently appalling and are also coercive behaviour.
The noble Lord, Lord Wigley, referred to the case of Emily Maitlis’s stalker who had previous convictions, including breaches of restraining orders in 2008, 2010, 2013, 2014 and earlier this year. I am sorry to say that that is not uncommon behaviour with stalkers and there needs to be the facility for the courts to apply for more serious custodial sentences where orders are consistently breached—not least the way that the stalking and coercive behaviour continues. One of the problems we have heard time and again from victims of domestic violence, stalking and coercive behaviour is the way other courts are used—the civil courts or family courts that do not recognise restraining orders that have been held elsewhere. We heard of information, which had not been passed to the family courts, of one former stalker who had been trying to get in front of his ex-partner through the family courts. It is very necessary to have this limited use but essential tool available for the judiciary.
Baroness Williams of Trafford
My Lords, the Government recognise and agree with the noble Lord’s desire to see the unduly lenient sentence scheme extended to enable reviews of sentences for a wider range of offences. The scheme is a valuable way of ensuring that sentences for serious crimes can be challenged when they are considered to be unduly lenient. The Government have a manifesto commitment to extend the scope of the scheme and on 4 October my right honourable friend the Home Secretary announced an extension to cover many terrorism offences—including those under Section 12 of the Terrorism Act 2000—that are covered by the noble Lord’s amendment. The extension can be done very straightforwardly by order.
The noble Lord’s amendment seeks to use primary legislation to require the Lord Chancellor to exercise the order-making power she has under Section 35 of the Criminal Justice Act 1988 to add offences to the scheme. This would add additional complexity to the legislative framework around the scheme and would curtail the Lord Chancellor’s discretion to amend the scheme as provided by the 1988 Act. Under the current provisions, the Lord Chancellor can amend the scope of the scheme by order and the Government can consider more broadly what offences or types of offences are most appropriate for inclusion at any time, as we have announced we will do with terrorism offences. With the reassurance that the Government intend to honour their manifesto commitment, I hope that the noble Lord will feel happy to withdraw his amendment.
Lord Wigley
My Lords, I am grateful to the Minister for that response and the recognition that there is a need to act on this. I ask for her confirmation that the statutory instrument system available to the Minister to take the action I referred to is applicable in all the cases listed in the amendment. If she wants to intervene, she can by all means do so.
Baroness Williams of Trafford
I was just going to ask whether I could confirm that in writing, because I would not want to give misinformation at the Dispatch Box.
Lord Wigley
That is fair enough. I accept that. I do not expect any Minister necessarily to carry all the details on their fingertips, but it would be helpful if we had a response on that before Report so that, if it is necessary to take this matter further on Report, there is an opportunity to do so.
The Minister heard the comments made by the noble Baronesses, Lady Howe of Idlicote and Lady Brinton, and by the noble Lord, Lord Ponsonby, on this matter. The feeling is generally shared that there needs to be action, and it is shared by the Government. The question is how it can be done and, perhaps more importantly, when it will be done. If these order-making facilities are available to the Minister, why have they not been used? If they are to be used, when will they be used? If there was a definitive statement in those terms we would be a little happier in withdrawing the amendment. There is an opportunity to come back on Report. I hope that between now and then these angles will be covered, either in correspondence or by other means, so we can be assured that action is not only promised but will be taken in a short timescale to put this right. On that basis, I beg leave to withdraw the amendment.
Baroness Finlay of Llandaff (CB)
My Lords, I thank the Minister and her officials for their time and help over the issue of this amendment. I declare my interest as independent chair of the National Mental Capacity Forum, and it is in that role that I have heard repeatedly about a problem relating to people who die when subject to deprivation of liberty safeguards. This new clause amends the meaning of state detention in Section 48 of the Coroners and Justice Act 2009 to correct the problem that I will now explain. I want to explain first how the amendment works and then some of the background as to why it really is needed.
The amendment removes the duty on coroners to conduct an inquest in all cases where the deceased had an authorisation for the deprivation of their liberty in place either under deprivation of liberty safeguards or a Court of Protection order or because the deprivation of liberty was otherwise authorised by the Mental Capacity Act 2005.
Subsections (2) and (3) of the new clause amend Section 48 of the Mental Capacity Act 2005 to provide a new definition of state detention. To do this, there is a new subsection inserted into the Coroners and Justice Act 2009 to provide that a person is not considered to be under state detention for the purposes of that Act when they are deprived of their liberty under the relevant sections of the Mental Capacity Act 2005. This covers the deprivation of liberty safeguards, which can be from a Court of Protection order, from a DoLS authorisation or, where the deprivation of liberty was urgently required, pending a decision by the Court of Protection on the authority to restrict the person’s liberty. The second amendment makes a consequential change to the Long Title of the Bill.
Let me explain why this new clause is needed. After the Cheshire West judgment, the number of DoLS applications has risen enormously. This was the subject of a debate in this House on 16 March 2015. Prior to the Cheshire West judgment, in 2012-13, there were 11,887 DoLS. In 2014-15, 122,775 individuals had an active DoLS application either granted or in process. That is more than a tenfold increase in the number of DoLS. Some of these people were seriously ill and some died. In 2015, there were 7,183 such deaths. The vast majority of those were expected, anticipated and accepted by the family and those responsible for care. These were not deaths that came as a surprise to anyone. When that family was then told that the death must be referred to the coroner for an inquest they were often shocked and worried, as if there were some sort of accusation against them or others. They could not progress with their grieving and arrange the funeral, as they then had to wait for the inquest.
In 2015 the average time for inquests was 20 weeks, although coroners tried very hard to ensure that deaths under DoLS, when clearly of natural causes, were dealt with more quickly. To put the numbers in context, of the more than 7,000 deaths under DoLS, 6,760—or 94%—were found at inquests to be natural.
The distress to the bereaved has become a common cause of complaint to the Department of Health. In addition, it is not a good use of coroners, who should be investigating deaths where there is any suspicion whatever. Indeed, I remind the House that the Ministry of Justice’s Guide to Coroner Services states:
“Registrars of births and deaths, doctors or the police must report deaths to a coroner in certain circumstances. These include where it appears that: no doctor saw the deceased during his or her last illness; although a doctor attended the deceased during the last illness, the doctor is not able or available, for any reason, to certify the death; the cause of death is unknown; the death occurred during an operation or before recovery from the effects of an anaesthetic; the death occurred at work or was due to industrial disease or poisoning; the death was sudden and unexplained; the death was unnatural”—
so that includes all suspected suicides—
“the death was due to violence or neglect; the death was in other suspicious circumstances; or the death occurred in prison, police custody or another type of state detention”.
The Ministry of Justice document goes on to say:
“If you believe that a death of this kind has not been reported to the coroner, you may report it yourself”.
In other words, relatives who have any concern can themselves report to the coroner. It goes on to say:
“You should do this as soon as possible and before the funeral. The coroner will then inform you of the action he or she proposes to take”.
Nothing in the amendment removes the obligations to inform the coroner if there is any suspicion whatever around a death. The amendment is to remove the mandatory requirement to hold an inquest where the deceased was deprived of their liberty under all relevant sections of the Mental Capacity Act—or, indeed, where the deprivation of liberty was to provide care to them.
Under the Mental Capacity Act a person who lacks capacity may be detained in circumstances which amount to deprivation of liberty. No detention amounting to deprivation of liberty may be permitted without lawful authorisation, because it would otherwise constitute false imprisonment. The Mental Capacity Act provide safeguards known as DoLS and Court of Protection orders to be made depriving a person of liberty for their care. It also allows for the deprivation of liberty of a person for the purpose of giving life-sustaining treatment only where a decision of the court is pending.
I want to address a concern that has been raised with me in relation to anyone who dies under the care of a mental health trust. A suicide or an unexpected or a sudden death must always be referred to the coroner, but I would expect there to be a routine review of any death in a mental health trust or similar organisation. Such a review should be available to the Care Quality Commission inspectors and I would expect the inspectors to ask about the number of deaths that had occurred in people subject to a deprivation of liberty safeguard application or authorisation. They should look in depth at the quality of the review of care that had taken place. Additionally, anyone who has concerns at any stage should raise those concerns, whether through whistleblowing or through the complaints process.
Complaints and how they are handled also form part of CQC inspections and I believe that such searching questions are far more likely to detect poor care than relying on a referral to the coroner, who is only looking at one instance and cannot see how care is delivered across a whole organisation. The recent incidents of poor care of those with learning difficulties that have come to light are certainly alerting inspectors that they must be more rigorous in their inquiries than before. To summarise, I hope that this amendment will correct an anomaly that has caused more than 6,500 bereaved families unnecessary distress in the last year alone. I beg to move.
Baroness Chisholm of Owlpen
My Lords, I am grateful to the noble Baroness, Lady Finlay, for this amendment. The Government are pleased to be able to offer our support for this amendment, which will minimise the stress on bereaved families at a very difficult time for them. The amendment will fully address the concerns that no family, having watched and comforted their loved one through his or her final days, should then be unnecessarily subject to the anxiety and confusion of having their death investigated by a coroner. I thank the noble Baroness for raising the profile of this important issue and for her valuable input, which the Government very much welcome and support. I commend her amendment to the Committee.
Baroness Williams of Trafford
My Lords, I am grateful to the noble Lord, Lord Wigley, for his explanation of these amendments, which call for a review of the criminal law in relation to digital crime. The Government of course share the noble Lord’s concern about online crime, especially where new technologies, which the noble Lord, Lord Ponsonby referred to, are used to abuse, harass or intimidate people.
Amendment 230 seeks to codify the existing criminal law in relation to digital and cybercrime into a single statute. I share the noble Lord’s concerns about online crime, but I do not believe a single statute for digital and cybercrime would be helpful or a good use of resources. Indeed, I am not persuaded that the existing criminal law in this area is defective. As the Committee will be aware, any action that is illegal when committed offline is also illegal if committed online. Current legislation, some of which was passed before the digital age, has shown itself to be flexible and capable of catching and punishing offenders whether their crimes are committed by digital means or otherwise. The majority of the statutes and offences listed in Amendment 230 relate to offences that can be carried out by non-digital and digital means.
Producing a single statute, containing,
“powers to prosecute individuals who may have been involved in the commission of digital crime”,
as Amendment 230 suggests, would add further complications to the criminal law by creating new overlapping offences, reproducing and duplicating many existing laws. Furthermore, many existing offences would need to be retained for non-digital offending, so we would end up with parallel offences for crimes committed online and offline.
However, while I am not convinced of the need for a review as suggested here, I assure the noble Lord that where specific gaps in legislation are identified, or where new behaviours that should be criminalised are brought to light, we will continue to take action. The Government’s record has shown that we will and do legislate when we need to, such as passing the Serious Crime Act 2016, which further strengthened the Computer Misuse Act 1990.
Amendment 231 would require the Home Office to ensure funding is made available to every police force to train their officers in how to investigate digital crime and abuse. Mainstream cybercrime training is already available to police officers and while I have sympathy with the underlying objective of the noble Lord’s amendment, I do not believe that legislation is necessary to require police forces to provide such training. Furthermore, subsection (2) of the proposed new clause, requiring all police forces to record complaints of digital crime and abuse and their outcomes, is unnecessary as I can assure the noble Lord that work in this area is already under way.
From 2015, police-recorded crime data collection also includes a mandatory online flag that allows police forces to record online instances of crimes, including stalking and harassment, whether the crime took place wholly online or just had an online element to it. The Office for National Statistics published these data, for the first time, as experimental statistics in July. We welcome the continuing improvement in the statistics on reported fraud and cybercrime that better reflect the extent of the problem. Having an accurate picture is vital to informing the most appropriate response to these crimes. It is important that police forces be able to respond to changing technologies, and we recognise the need to support forces to invest in the capabilities they need. However, the training of police officers is an operational matter and critically, it is the police themselves who can best determine what their training needs are.
Amendment 231A seeks to create an array of new offences relating to digital surveillance and monitoring, presumably to address issues such as online harassment and stalking. The Government are absolutely clear that abusive and threatening behaviour is totally unacceptable in any form, online or offline. Existing legislation in the form of the Protection from Harassment Act 1997 includes the offences of stalking, harassment and putting people in fear of violence, and applies to offences committed online.
In 2015-16, almost 13,000 prosecutions were commenced for harassment and stalking offences—a rise of 864 offences from 2014-15 and the highest volume ever recorded. The Government have strengthened the law on stalking: an insidious crime that can involve a wide range of behaviours, which may include the misuse of digital equipment, spyware and social media. There is no exhaustive list of behaviours relating to stalking, but recognising the ongoing pattern of fixated, obsessive behaviour is really important in tackling stalking.
New stalking offences were introduced in 2012. They are stopping people living in fear and preventing escalation to more serious violence. In 2015-16, more than 1,100 prosecutions were commenced under the new stalking legislation. Our recent consultation on the introduction of a new civil stalking protection order demonstrates our determination to support victims of stalking at an earlier stage and address the behaviour of perpetrators before it becomes entrenched. This draws on our successful roll-out of other civil orders, such as FGM protection orders, domestic violence protection orders and sexual risk orders.
I am sorry to have gone on somewhat, but I hope the noble Lord recognises that the Government keep the criminal law in this area under review and that police forces are alive to the need to have the capabilities to tackle such crime. I hope the noble Lord will feel happy to withdraw his amendment.
Lord Wigley
My Lords, I am grateful to the noble Lord, Lord Ponsonby, for his support. I know the interest that the noble Baroness, Lady Howe, has taken in these matters. She had to leave before this debate but she has been one of the leading people in questions of cybercrime and associated matters.
At this time of night, I hate to be fractious with the Minister but I am afraid that what came over was complacency. There is an avalanche of cybercrime and associated dangers flooding the country. The police and other authorities do not have adequate resources, training or back-up to handle it. Unless action is taken to a much greater extent than it is now, this will overwhelm us. I urge the Minister, although she cannot agree with my amendment, to take back to the department the very serious worry that is represented by these amendments, to see what can be done to speed up action and provide more resources to enable those who have the responsibility of bringing perpetrators to justice to do that and not feel that they are fighting a losing battle. However, I beg leave to withdraw the amendment.
Baroness Chisholm of Owlpen
My Lords, these are technical and consequential amendments to the Extent clause and I beg to move.
“( ) Section (Anonymity of victims of forced marriage: Northern Ireland) extends to Northern Ireland only.”
“( ) sections (Posthumous pardons for convictions etc of certain abolished offences), (Other pardons for convictions etc of certain abolished offences) and (Sections (Posthumous pardons for convictions etc of certain abolished offences) and (Other pardons for convictions etc of certain abolished offences): supplementary);”
“( ) section (Anonymity of victims of forced marriage: Northern Ireland);”