Police, Crime, Sentencing and Courts Bill (First sitting)
Tuesday 18th May 2021
(3 years, 2 months ago)
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The Chair
Before we begin, I have a few preliminary announcements. First, let me ask you to switch any electronic devices off or to silent mode. I remind you that Mr Speaker does not allow tea or coffee to be consumed during sittings of this Committee. This is really difficult, but you have to try to observe the social distancing arrangements and sit only in the places that are marked. I ask you to wear a face mask when you are not speaking, unless you are medically exempt. Space is a bit tight in this room, so people just have to observe social distancing and try to make it as easy for people as possible as they are moving around.
Today we will consider, first, the programme motion on the amendment paper. We will then consider a motion to enable the reporting of written evidence for publication and then a motion to allow us to deliberate in private about our questions, before the oral evidence session. In view of the time available, I hope that we can take all those matters without debate. Before we hear evidence from our first panel, we will have a short briefing from the Parliamentary Digital Service on cyber-security, which is of particular concern to members of this Committee because we are dealing with matters relating to the police and criminal law. The programme motion was discussed on Monday by the Programming Sub-Committee for this Bill.
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
I beg to move, Date Time Witness Tuesday 18 May Until no later than 10.30 am The National Police Chiefs’ Council Tuesday 18 May Until no later than 11.25 am The Police Superintendents’ Association; The Police Federation of England and Wales Tuesday 18 May Until no later than 2.45 pm The Centre for Justice Innovation; The Centre for Social Justice Tuesday 18 May Until no later than 3.30 pm Jonathan Hall QC, the Independent Reviewer of Terrorism Legislation; HM Inspectorate of Constabulary and Fire & Rescue Services Tuesday 18 May Until no later than 4.15 pm Local Government Association; The Association of Police and Crime Commissioners Tuesday 18 May Until no later than 4.45 pm Doughty Street Chambers; Garden Court Chambers Tuesday 18 May Until no later than 5.15 pm Youth Justice Board Tuesday 18 May Until no later than 5.45 pm The Bar Council Thursday 20 May Until no later than 12.15 pm National Association for the Care and Resettlement of Offenders; Unlock Thursday 20 May Until no later than 1 pm The Victims’ Commissioner Thursday 20 May Until no later than 2.45 pm The Children’s Society; Community Justice Scotland Thursday 20 May Until no later than 3.30 pm The Association of Youth Offending Team Managers Thursday 20 May Until no later than 4.15 pm The Law Society Thursday 20 May Until no later than 5 pm Howard League for Penal Reform; Criminal Justice Alliance; Women in Prison; Sentencing Academy Thursday 20 May Until no later than 5.45 pm Professor Colin Clark, University of the West of Scotland; Amnesty International UK; Liberty
That—
(1) the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 18 May) meet—
(a) at 2.00 pm on Tuesday 18 May;
(b) at 11.30 am and 2.00 pm on Thursday 20 May;
(c) at 9.25 am and 2.00 pm on Tuesday 25 May;
(d) at 11.30 am and 2.00 pm on Thursday 27 May;
(e) at 9.25 am and 2.00 pm on Tuesday 8 June;
(f) at 11.30 am and 2.00 pm on Thursday 10 June;
(g) at 9.25 am and 2.00 pm on Tuesday 15 June;
(h) at 11.30 am and 2.00 pm on Thursday 17 June;
(i) at 9.25 am and 2.00 pm on Tuesday 22 June;
(j) at 11.30 am and 2.00 pm on Thursday 24 June;
(2) the Committee shall hear oral evidence in accordance with the following Table:
(3) proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 to 10, Schedule 1, Clause 11, Schedule 2, Clauses 12 to 42, Schedule 3, Clause 43, Schedule 4, Clauses 44 to 47, Schedule 5, Clauses 48 to 51, Schedule 6, Clauses 52 to 66, Schedule 7, Clauses 67 to 73, Schedule 8, Clause 74, Schedule 9, Clauses 75 to 97, Schedule 10, Clauses 98 to 100, Schedule 11, Clauses 101 to 127, Schedule 12, Clause 128, Schedule 13, Clause 129, Schedule 14, Clauses 130 to 134, Schedule 15, Clause 135, Schedule 16, Clauses 136 to 156, Schedule 17, Clauses 157 to 161, Schedule 18, Clauses 162 to 168, Schedule 19, Clauses 169 to 171, Schedule 20, Clauses 172 to 176, new Clauses, new Schedules, remaining proceedings on the Bill;
(4) the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 24 June.
The Under-Secretary of State for the Home Department, my hon. Friend the Member for Croydon South (Chris Philp), and I are both delighted to serve under your chairmanship, Mr McCabe. I welcome to the Committee my hon. Friends, on the Government Benches, and hon. Members across the room. I am sure that we can expect some lively debates in the days and weeks of scrutiny ahead.
Question put and agreed to.
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Victoria Atkins.)
The Chair
Copies of written evidence that the Committee receives will be circulated to members by email and made available in the Committee Room.
Resolved,
That, at this and any subsequent meeting at which oral evidence is to be heard, the Committee shall sit in private until the witnesses are admitted.—(Victoria Atkins.)
The Chair
If everyone is agreed, we will go into a private session for the briefing on cyber-security and to discuss the lines of questioning. Time is very tight, so we will allow five minutes for the presentation and, if there are any obvious questions, a few minutes for that. If people have things that they want to follow up, I ask them to do that separately with the PDS; otherwise we are just eating into the Committee’s time.
The Chair
I want to check how members of the respective parties want to handle the questions. We have our first panel until 10.30 am; they will all be giving evidence by video today. It is slightly harder since we are not sitting in our usual formed lines, but my assumption is that I should simply alternate between members of the respective parties and allow enough time for the Minister and the Front-Bench spokespersons to come in towards the end. Are you happy with that?
The Chair
Obviously, you can either use the questions that are on the brief that you have been given, but there is no objection to your asking your own questions. However, the questions must relate to the content of the Bill; we do not want any flights of fancy from anyone. I hope that makes perfect sense.
Also, if anyone has anything that they need to declare, I hope that they will be kind enough to do that.
I think that covers all the preliminary business. I am conscious that it is difficult to be called with the arrangement in the room, so if you want to be called, just indicate that to me. And if you are sitting at the back, there is a microphone there, so that you will be heard properly. If anyone is having any terrible difficulties, let me know.
Otherwise, if you are happy to proceed, I will call the first panel of witnesses: Assistant Commissioner Martin Hewitt, the chair of the National Police Chiefs’ Council; and Chief Constable BJ Harrington, the NPCC lead for public order and public safety.
Examination of Witnesses
Assistant Commissioner Martin Hewitt and Chief Constable BJ Harrington gave evidence.
The Chair
Q
Assistant Commissioner Hewitt: For myself, Chair, all I will say is that throughout the construction of the Bill, all my respective leads have worked with the Home Office officials, to try to make sure that our views have been incorporated, so we feel that we have had the opportunity to be engaged throughout the process. I do not think that I really need to say much more than that at this stage.
Chief Constable Harrington: I am one of those respective leads, so I have had plenty of opportunity to inform the Bill.
Sarah Champion (Rotherham) (Lab)
Q
Assistant Commissioner Hewitt: We are always concerned about any officers that have to routinely undertake the kind of work in which there will undoubtedly be an impact on the officer’s welfare. We have a range of wellbeing work that we do, including a specific wellbeing service, Oscar Kilo, that looks after all aspects of wellbeing, particularly mental health wellbeing, which has become one of our priorities in recent years. When you get into specific roles such as the one that you identified there, there is training and assessment for officers who go forward and undertake those roles. There is also regular checking and assessment of those officers so that they are looked at again, spoken to and monitored for any of the specific impacts.
As you have identified, there is a range of roles that we now have officers undertaking that are by their very nature distressing, and of course we recognise that kind of repeated exposure, so there is psychological testing and support provided to those officers. In particular roles, that will incorporate routine and regular checking to ensure that the officer’s welfare is fine. That fits within the much broader work that we undertake more generally on wellbeing, and, as I say, particularly and increasingly mental health wellbeing.
Sarah Champion
Q
Assistant Commissioner Hewitt: The reality is making that work. An issue that we undoubtedly have around wellbeing and the occupational health service provision is the restricted amount of capacity. That is one of our challenges. In all circumstances, where we want to refer officers or staff for support, one of our frustrations is that it often takes quite a while to access that support. Although there is a positive in the concept of providing more universal support, it would have to be balanced with being able to actually provide the capability and the capacity to do that effectively. That is one of the challenges we face.
The Chair
Chief Constable Harrington, do you have anything to add?
Chief Constable Harrington: Like Martin said, we have some systematic processes for those who engage in high risk areas. Some of the capacity issues are dealt with by our trauma incident management response, which enables supervisors and peers to recognise, debrief and spot the people who need further and greater intervention, and almost to triage that response following any kind of traumatic incident, particularly in the cases that have been referenced.
The Chair
I call Robert Goodwill. By the way, Members are free to take their jackets off if they feel so inclined.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
Q
Assistant Commissioner Hewitt: BJ, I will probably let you take that one first.
Chief Constable Harrington: First and foremost, all police training and all police responses to public order and protest, and those important freedoms that you referenced, are in accordance with the Human Rights Act. Of course, there is always the balance between the positive duties to ensure that people can express those rights, and those negative duties, ensuring that we infringe on those rights only when that is proportionate and necessary. I think the point is around getting the balance right in protecting the rights and freedoms of those who are impacted by that.
We asked for some of the changes that are incorporated into the Bill, including more currency around the powers in the Public Order Act 1986 as was. Protest and assemblies have changed since that time. There are issues such as when does a procession become a static assembly, and an assembly become a procession? There is the consistency of what the police can do, always within a landscape of balancing the competing rights of those affected and those who wish to express their rights. There is also the need for real clarity for both the officers who are required to make difficult decisions, balancing objectively and proportionately what they need to do, and for those who wish to express those rights or to have them protected.
We think that the proposals to align sections 12 and 14 of the Public Order Act 1986 really do bring that currency to what we see and how people protest, assemble and march now. There will also be consistency so that people can better understand. Of course, things like the public nuisance elements allow us—the police—to anticipate better where there will be significant or serious impact. “Significant impact” is the phrase we would want to see. You have seen and referenced some of that significant disruption to people whose rights are infringed by others. We think that the changes bring currency and consistency and, overall, greater clarity for all those who have to police it and those who take part.
Mr Goodwill
Q
Chief Constable Harrington: From our perspective, we asked for the consistency between those two sections, and that is included. We asked for, and would like to see, particularly serious disruption—a very high threshold—to become more like significant impact on the community. Of course, we can prove disruption, and it is also about whether the impact is on, for example, a small business, an individual, a neighbourhood or, indeed, a large institution or Parliament itself. We asked for that, and we think the Bill starts to address that.
In terms of the powers and the response to that, the tactics and things, whether that is the use of force, that we apply—you referred to water cannon available to other police forces and other countries—always need to be in that balance and, of course, proportionate and necessary to achieve that legitimate aim. But the proposals give us greater clarity to be able better to balance those competing rights, which are always tricky and difficult and always require judgments about those who are affected by it and those who are expressing their rights, and there will always be opposing opinions. I think the Bill broadly gives us that extra power.
Mr Goodwill
Q
Chief Constable Harrington: If I may reference Her Majesty’s inspectorate of constabulary and fire & rescue services’ survey of the public, where there is serious disruption, the public are very supportive of the police being active and preventing that action taking place. I think the public will perhaps always step in when they see a significant impact on them, or in terms of the lower elements, where it is just frustrating perhaps or just annoying. I think the public in the survey showed that they are more tolerant of that.
It goes back to the previous questioner’s point: in the police service, we guard the freedoms of expression and assembly very carefully, because they support police legitimacy in terms of the police being the public, and the public being the police. So I think the Bill gets the balance right. I think the public will always be concerned where people are climbing on top of tube trains, which is simply dangerous. That will always be a case where the police or the public would want to intervene.
The Chair
Is there anything you want to add, Mr Hewitt?
Assistant Commissioner Hewitt: Not really. We police public order and protest in a particular way, and I am very proud of the way that we police that. As has just been said, it is always a challenge to balance the different rights, responsibilities and risks, and that is what our commanders do routinely. What the provisions in the Bill give us is greater consistency and clarity, which is really important for the commanders and the officers on the ground, but equally for people who are seeking to protest. This is an environment that changes and shifts, and the Bill gives us extra certainty and clarity in terms of dealing with situations as they arise.
Maria Eagle (Garston and Halewood) (Lab)
Q
Chief Constable Harrington: Police training already clearly plays a large part in our obligations, positive and negative, under the Human Rights Act, and we make those judgments around balance now—the protection of rights and freedoms of others, versus the rights of assembly and freedom of expression that are so important. It is a core part of our training, from senior commanders through to police constables and every rank and grade in between. We already balance those competing rights.
In terms of preparation, we engage with protest groups where we can and where they wish to engage with us. We try to understand what it is that they wish to achieve through their protest, and we then try to speak to those who would be impacted on—you used the example of people in a shop—to understand what they need. We try to strike a balance that allows both of those rights and freedoms to be carried out and realised. Sometimes there is conflict in that, because some might seek to obstruct one or the other. That is when police commanders and officers have to make those judgments, but it is always about how they balance those rights in a way that is proportionate and necessary. Of course, any restrictions that we place on those rights must always be prescribed in law, and that is what we say the provisions in the Bill allow us to do more clearly for all involved.
Maria Eagle
Q
“entire classes or types of protests”
will be prohibited and that the bar for what will constitute significant disruption to the community, which is a woolly phrase—what does that consist of?—will be set at a low level, which will infringe on people’s rights to protest peacefully. What do you think about this, and what is your understanding of the definition of serious annoyance?
Chief Constable Harrington: The vast majority of protests across the country are largely unpoliced and take place without police intervention, and we use our current powers under the Public Order Act to impose restrictions relatively infrequently. Over the past year, I do not think it has been more than 20 times, although some of those have been high profile and have obviously been challenged in the courts. These are not powers that we seek to use frequently, and they are well considered. Of course, they are subject, and have been subject, to challenge in the courts, both through judicial review and subsequently when people have been prosecuted for breaching the conditions in relation to that.
On serious annoyance, we think serious disruption is a very high bar. We asked for “significant impact” on the community, to take account of where it may not be serious but is perhaps significant to a business, an individual or a school, or to the operation of someone’s life and freedoms. On serious annoyance, we need to see what Parliament’s decision on the definition of that is and to interpret that accordingly, always coming back to how we interpret the law in a way which comes back to the fundamental freedoms and those fundamental obligations on policing, which is to get the balance right between those who wish to express those rights and those who are impacted by them. We will have to see what Parliament decides and whether it is able to give us some clarity about what that means, so that we can make those judgments in an informed and lawful way.
Maria Eagle
Q
Chief Constable Harrington: I have policed many protests over 27 years in London, and headed up public order for the Metropolitan police in a previous job, so, yes. There are lots of cases—Redmond-Bate and others—that would suggest that protest is annoyance and disruptive. This is the balance. We come back to the point: where does that level of disruption become, in our view, a significant impact on a community? That is the balance of judgment that we have to make. If that stops the operation of a business—a hospital perhaps—or stops thousands or tens of thousands of people commuting to their jobs each day, our argument would be that that tends to trip the bar to say that that is not proportionate and the balance is out of kilter there.
Equally, we have to take into account that there will be some annoyance and there will be some noise, but that is the judgment call that commanders have to make, balancing those and taking the evidence or the information from those affected by it. We would very much welcome from Parliament guidance and a steer as to what that would mean and what the levels are—if you excuse the pun—because that is how we can then make sure that we balance those rights lawfully and proportionately.
Maria Eagle
Q
Chief Constable Harrington: Some are very, very noisy, with drums, cymbals and bands, and others—certainly that I have been involved with—have been absolutely silent, because of the nature of those protests. Noise is one element which can disrupt, but so also is the presence. So there is a whole variety of different protests, but, yes, many are noisy.
Maria Eagle
Q
Chief Constable Harrington: The presumption is that people have a right to assembly, and we would only impose conditions on those where we think that there is serious disruption, serious disorder or the likelihood of serious damage, or they are there to intimidate people. As the law suggests, we have always said that, in terms of serious disruption, that bar is very, very high, and we would like to see “significant impact”.
We use these powers currently very rarely. We allow and facilitate many protests, and sometimes to our criticism. Police commanders are criticised for getting the balance wrong because one or other side, or opposing views, think that it should not be allowed. I cannot say that every protest will always be allowed, but I think individual commanders will make informed, balanced judgments based on the information, always seeking to get the balance right, with a presumption that is set out in the Human Rights Act that we will facilitate a peaceful assembly, but always balancing that against the protection of rights and freedoms of others.
Maria Eagle
Q
Chief Constable Harrington: As I said, we asked for greater consistency in sections 12 and 14 of the Public Order Act. For the Committee’s benefit, for a procession, we can impose conditions such as appear reasonable to the senior commander in the circumstances—whatever range of conditions. For an assembly, we can only specify location, duration and maximum numbers. As I said, the point is when does a march begin and an assembly stop? You will have all seen that in your own experience.
We asked for greater clarity around public nuisance and for that to become a statutory offence, rather than a common law offence. We think that gives commanders and the public greater clarity and understanding. We think that is an important power that will allow us to deal with some of the more serious disruption to communities that perhaps might be planned.
We also asked that, where we have talked to individuals and gone through breach of the conditions, whether in advance, through publication, through engagement or through the five-stage appeal before we use enforcement, and where we have done everything we possibly can, often videoing officers speaking to or giving a leaflet to someone who we say is breaching, that the presumption be shifted, as they ought to know, because we have done everything possible. We have asked for those kinds of powers, and they are reflected in the Bill.
The Chair
I will come to Allan Dorans in a second, but in the interest of balance we will go first to Antony Higginbotham first.
Antony Higginbotham (Burnley) (Con)
Q
Chief Constable Harrington: Social media has been a game changer in many ways. We still get organisers who come forward and people who say they want to march from A to B. They will organise around that; they are what I call a traditional protest march.
But, as you rightly say, we can have protests or assemblies that are organised in a matter of hours—sometimes minutes—and the use of social media can change those protests and make them more dynamic. Hence, the currency around that, because something was advertised as an assembly at a particular point, but, very quickly, through social media, everyone is off to another point, and it becomes a march. We think that is really important, and the powers help us because we can be really clear about imposing proportionate, lawful and necessary conditions, if the threshold is met, on the whole of that protest, whether it walks or stands still. Then everybody can be clear about what they do.
In terms of social media, we have adapted very quickly, I think. You will regularly see police officers in our police liaison team trying to engage with organisers. We will see approaches through a whole range of social media platforms. Sometimes, as it is people’s right not to engage with us, you will see senior officers making very clear appeals and clearly setting out through social media what, in the policing judgment, is acceptable or not acceptable, in order to make sure people are clear about where they may or may not be breaking the law if we impose conditions.
So we have adapted to that and we continue to do that. Through events, you will see that we continue to do that for those events. We also use social media to understand the impact on those affected, so that we can either protect property or protect the rights and freedoms of those who may be affected.
Antony Higginbotham
Q
Chief Constable Harrington: It is the ability to communicate quickly, to change their focus of protest very quickly and to divide and split up—it is just that it is dynamic. We see that in a social context—“I’ll meet you here” or “I’ll meet you there.” That is the same thing in protests.
I think you hit the nail on the head about what we are asking for around consistency and currency, allowing the powers that we use—again, proportionately and with all the balance and the constraints of the Human Rights Act—to be really clear, so we can say, “What is the impact of what this group propose to do? How do we best balance that?”
Then, if we think the threshold is met, we can impose conditions that allow us to be really clear about what we are trying to achieve. To the point you made earlier, we then need to communicate that very clearly to those involved so that they have every opportunity to express their rights, understanding what the rules and thresholds are for when the police would intervene.
Antony Higginbotham
Q
Chief Constable Harrington: We are very careful with the use of closed online groups. The open-source platforms we use are exactly that: open source. Our communication with protest groups is open, as is their conversation with us. I think we are very careful; our access to those would be about criminality, and that is not what we are talking about here in terms of our use of those powers. This is not to limit or criminalise protests; it is to balance those rights of disruption with competing rights.
Seeking access to closed groups would always be at a very high threshold we would consider only with criminality. We do that in other arenas, and we have good powers and good co-operation in order to do that. We would not seek that routinely as part of policing protests or public order. As we have seen over the last year—even this last weekend—there have been largely peaceful protests. My view as the national lead is that we would only seek those powers where protests end and criminality begins, but I think they are well catered for elsewhere.
Allan Dorans (Ayr, Carrick and Cumnock) (SNP)
Q
Assistant Commissioner Hewitt: The first point I would mention is that there will be pilots for the serious violence reduction orders. We have been and will continue to work very closely with the Home Office to make sure that we fully understand the impact of such orders. There is no doubt that there are people who are more violent and have a history of violence, and we do a range of things to try to reduce the number of violent crimes. Our concern is to make sure that there is no disproportionality in the way these orders are used, so we are really keen to work very closely with the pilot site to assess how this can be another tool—and it is just one further tool—in dealing with street violence and violence among younger people.
We do think there is an opportunity for certain individuals to become subject to this sort of order, but we want to work with the pilot site to see how we can make that work; how we can make it an effective tool that does not cause more challenges with particular parts of the community.
The Chair
Thank you. I want to try to squeeze in one last Back-Bench question—Hywel Williams, could you make it brief, because I want to get to the Front Benches.
Hywel Williams (Arfon) (PC)
Q
Assistant Commissioner Hewitt: Potentially, that presents a challenge. The four Welsh forces work extremely well with Welsh Government, and—obviously—with local authorities in the individual force areas. There is always going to be a challenge when people are potentially in different legislative places. We have been dealing with that in many senses in our response to the covid pandemic for the last 14 months or so: we have very deliberately responded as one UK police service, but on almost all occasions there have been slightly different regulations in Scotland, Northern Ireland and, for that matter, Wales. That presents a challenge to policing, but I know for a fact that the four forces in what the National Police Chiefs Council would describe as the Welsh region work incredibly closely with the Welsh Government and with local authorities in the individual areas. We work effectively and collectively as one UK police service. I am confident that we will be able to bridge those gaps if they exist and deal with the challenges, but those challenges nonetheless do exist when we are potentially in different frameworks.
Sarah Jones (Croydon Central) (Lab)
Q
I have some quick-fire questions first concerning several other issues in the Bill that we do not have time to go through in detail, so do not feel that you have to give long answers. On the police covenant—that we welcome—would you have liked to see other police officers included in the primary legislation, such as the British Transport police and the Ministry of Defence police? That question is to Martin.
Assistant Commissioner Hewitt: As I say, we work as one police service and we really have done so over the last 14 months. Potentially, that would be a positive thing. We are working closely with the Government. I have set up a shadow police covenant board which has all the representatives of the organisations: staff associations, unions, police and crime commissioners, and the NPCC. We are working really closely with the Home Office officials who are putting it together. My view is that we operate as one UK police service, and it would be helpful if that was likewise.
Sarah Jones
Q
Assistant Commissioner Hewitt: There could be some potential to that. We have, as you know, been alive to the issue of exploitation, particularly in the guise of county lines. We have used other legislation to prosecute the criminals exploiting those children. It is clear, though, that it is a phenomenon. That is why the requirement to share information is important: so that we identify all the risk factors as we collectively try to reduce violence. It may be worth considering a specific definition, but it is well understood in policing. That aspect is part of how we try to deal with those issues— particularly but not exclusively county lines.
Sarah Jones
Q
“The solution to unauthorised encampments lies in the provision of sufficient lawful accommodation accompanied by closer working between the police, local authorities and all other public services.”
Will you expand on that view? Why did you come to that position? These are really quick-fire questions, sorry.
Assistant Commissioner Hewitt: This is a really challenging area for policing, and it provokes strong views on all sides. The police often find themselves in difficult situations when dealing with these issues. Our group, which worked very closely on this issue, strongly believes that the fundamental problem is insufficient provision of sites for Gypsy Travellers to occupy, and that that causes the relatively small percentage of unlawful encampments, which obviously create real challenges for the people who are responsible for that land and for those living around. Police still get involved at the moment. The view of our group is that the existing legislation is sufficient to allow that to be dealt with, and we have some concerns about the additional power and the new criminal provision and how that will draw policing further into that situation. Really, our point fundamentally as the NPCC group is that the issue here is the lack of provision that theoretically should be made, which means that we have this percentage of Travellers who are on unlawful spaces and you end up in the situations that we end up with. Our view is that the current legislation is sufficient to deal with that issue.
Sarah Jones
Q
Assistant Commissioner Hewitt: I think we all understand that the volume of digital evidence that is required for almost every investigation has grown and grown as all of our lives are lived more digitally. That has created real pressure on the time limits of investigations and our ability to gather the evidence that we need to take an investigation forward. We have increased the capability. It is partly about equipment and having the right equipment to be able to extract digital evidence. It is also about having officers and staff who have the right capabilities to assess that evidence and produce it in an evidential form.
There is no doubt that that is a growth area, and all sorts of discussions are going on between us and Government about increasing our capacity and capability for that. However, the flip side and the really important point is making sure that what is being done is lawful, proportionate and necessary. Again, that side of the work is equally important.
This is never going to be about randomly extracting data; this is about extracting the data that is required to conduct a proper investigation, provide evidence and decide how something goes forward and, really importantly, doing that in a timely fashion. As we all know, there are real concerns about the timelines for investigations and prosecutions, and one of the key factors in the delays in those processes is the extraction and analysis of digital forensics. So we need the legal framework to allow us to do that properly and we then also need the resourcing and the capabilities to do it within the right time limits.
The Chair
Can I remind you, if Mr Cunningham is coming in, that you are in the last two minutes of your time, so how you use it is up to you.
Sarah Jones
Q
Chief Constable Harrington: Of course, there is a process by which we have to react to highway obstruction. It does not allow us to assess impact on hospitals or access for emergency vehicles. There is clarity between what is a procession and what is an assembly, and we can apply such conditions as are necessary, with all of the balancing around what could be a march or an assembly or both. If you take Parliament square, sometimes people will rotate around it. I know there is particular interest in St Thomas’ Hospital with Westminster bridge, for example. The ability to have consistency allows police commanders, where required, depending on the size and nature of the march, protest or assembly, to be clear in advance about where emergency vehicles will be allowed to get through.
I use Parliament square as an example because it will be evident to members of the Committee and easy to describe, but the same issue might arise elsewhere. The process enables us to be clear in advance where that threat is posed or, at the time, to be clear and able to communicate that. With highway obstructions, there is a need to negotiate, discuss and decide whether there is lawful authority and if an emergency vehicle is trying to get through, that takes time and it will not be effective.
The Chair
Thank you. I have got to switch to the Minister, Victoria Atkins. If there is time, I will come back to Sarah Jones.
Victoria Atkins
Q
Assistant Commissioner Hewitt: That is right.
Victoria Atkins
Q
Assistant Commissioner Hewitt: Yes, I welcome that very much. In some senses, that was previously there. When you look, in particular, at the work that has been done by violence reduction units in the past year to 18 months—a couple of years, in fact—getting all the relevant agencies in the local area to focus on and prioritise reducing violence, and play their part, is the way to reduce levels successfully. We can never do that purely by enforcement. This is a really important opportunity to bring all those groups together and focus on violence in their local area.
Victoria Atkins
Q
Assistant Commissioner Hewitt: The fact that it is a partnership is really important as well.
Victoria Atkins
Q
Chief Constable Harrington: We did ask for public nuisance to be made statutory. A Law Commission report from 2015 clearly set out more broadly some of the benefits of doing that. The report refers to:
“serious distress, annoyance, inconvenience or loss of amenity; or is put at risk of suffering any of these things”.
The measure would be for more unusual kinds of protest activity that are not a march. Historically, people have hung off gantries of cranes, where there is serious inconvenience and loss of amenity.
Importantly, making it statutory establishes two things. First, the rules are very clear to those who have to use and understand the legislation. The common law is good, but it is steeped in decided cases and judgments that are often difficult to extract for non-lawyers. It allows Parliament to be clear about what the phrases mean, and to give guidance to policing and the public on what is intended. From a policing perspective, where we have intelligence or information, it allows us to act in advance to prevent some of those issues, where proportionate and necessary. That is the difference that it makes. We are working from the Law Commission report in 2015, which states a number of benefits. We see those as very important for those reasons.
Victoria Atkins
Q
Chief Constable Harrington: Yes, that is the Law Commission’s summary of what that should be. That is where that phrase appears. We welcome the clarity; making it part of statute allows for phrases such as that and others to be clearly defined for us and for the public.
Victoria Atkins
Q
Assistant Commissioner Hewitt: As I alluded to, it is critical to have a clear code of practice and framework to ensure the extraction to be proportionate and necessary for that investigation, and to be very clear about timelines, how that will be done and how the victim—or the complainant—will be treated throughout. This has been a very challenging area for us. Having that certainty and clarity of the guidelines will help to ensure that everybody understands the process. As I said, the ability for us to do that as quickly as we can, to deliver the evidence we need, is really important to maintain confidence, as you say, for people to come forward, and to maintain those complainants throughout the process, to reduce the attrition levels.
The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)
Q
I have two brief questions. The first relates to the proposed increase in the penalty for assaulting an emergency worker from 12 months to two years. Does the police service welcome that change? Do they think that it will potentially deter people from attempting to assault officers in the discharge of their duties?
Assistant Commissioner Hewitt: Yes, we welcome that change very much. It is sad to report that we have seen a steady increase in assaults on emergency workers, primarily police officers. In the month up to 14 March this year, there was a 19% increase on the previous year in assaults on emergency workers, predominantly police officers.
We have done an enormous amount of work in the service; we did an officer and staff safety review process, which is working to improve the safety of our officers and staff. We have worked closely with the Crown Prosecution Service, which has been supportive in achieving charges where officers or staff are assaulted in the course of their duties. I think the increase in the sentence is positive, provided, of course, that those sentences are handed down when people are found guilty at court. We are supportive of that, because it demonstrates the seriousness and the importance of the fact that, although our officers and staff protect the public and do dangerous things, they should not expect routinely to be assaulted.
Chris Philp
We completely agree, thank you. My final question relates to out of court disposals. There are proposals in this Bill to simplify the number of out of court disposals from six to two. That has been trialled, I think, in three forces over the past few years—
The Chair
Order. Minister, I am very sorry to interrupt you, but we are out of time. We will have to save that question for another witness or another occasion. I am afraid that brings us to the end of the Committee’s allotted time to ask questions. I thank our witnesses on behalf of the Committee. Apologies, Minister, but we are on a pretty tight schedule.
Examination of Witnesses
Chief Superintendent Paul Griffiths and John Apter gave evidence.
The Chair
We now hear from Chief Superintendent Paul Griffiths, president of the Police Superintendents’ Association of England and Wales, and John Apter, chair of the Police Federation of England and Wales. We have until 11.25 am for this session. Can I ask you to introduce yourselves for the record, please, gentlemen?
Chief Superintendent Griffiths: Good morning. My name is Paul Griffiths, and I am president of the Police Superintendents’ Association. We represent more than 1,300 senior operational leaders across England and Wales, and other non-Home Office forces and Crown dependencies. Our main priorities are to influence national strategy and to protect our members if they are at risk or from a wellbeing perspective.
John Apter: Good morning. I am John Apter. I am the national chair of the Police Federation of England and Wales, and we represent 130,000 officers across England and Wales—across all 43 Home Office forces —from the rank of constable up to and including chief inspector.
The Chair
Thank you. I think we will try to follow the same pattern as before. I will try to get Back Benchers in first, and then I will allow about 10 minutes each for the Front Benchers.
Sarah Champion
Q
Can I ask of our witnesses the same question that I asked of the chiefs? In the police covenant, would it help and support your members if there were mandatory provision at the very beginning of training and all the way through to support you on a psychological level? I am very aware that you are the first people on many occasions to see some hugely traumatic situations. I am particularly thinking, on child abuse, of the amount of time that police officers have to invest in seeing some pretty horrific things. Should we put in the police covenant mandatory training and support for officers to deal with that trauma?
John Apter: I am happy to start. Thank you for the question. The police covenant is very close to my heart, and it is something that the Police Federation has campaigned for. Absolutely, it needs to be meaningful and tangible, and it needs to have a benefit for those it is there to support—not only officers, but staff, volunteers and retired colleagues. Mr Hewitt said earlier that much has been done about wellbeing in policing over the past few years, and I support that.
We have come an awful long way, but we have not gone far enough. One of the frustrations that my colleagues have is the inconsistency within forces. I have had this conversation with the College of Policing, and part of that is the lack of ability or willingness to mandate particular aspects of training and support. The covenant gives us a great opportunity to put in place mandated levels of psychological support and training from the start of somebody’s service to its conclusion and beyond.
Chief Superintendent Griffiths: I echo John’s view on this. There has been a rise in some of the challenges that officers face—even our members—in terms of psychological trauma, post-traumatic stress disorder and so on. In my role as president of the Police Superintendents’ Association, and as a trustee of the police charities that help and support in these issues, I have seen a rise in some of the challenges that officers face—not only those on the frontline, but my members who are senior operational leaders.
The service has come a long way with the frontline review, the officer safety review and a rise in our focus on wellbeing as a consequence of some of the challenges we have faced over the past decade. Do we need anything additional in the legislation in respect of that? There is a need for consistency across occupational health standards, but I think that could be achieved through the programme management rather than through legislation. There is a real focus in the service now, through Oscar Kilo and wellbeing, the NPCC, and staff associations in this area, and we are working closely together, so there is a golden opportunity with the police covenant to best serve and support officers and staff across the whole country.
Sarah Champion
Q
Chief Superintendent Griffiths: It is hugely important for us to be victim-orientated in our policing services. We have really focused, over the last 10 to 15 years, on vulnerability issues and the significant vulnerability areas of policing, through the College of Policing and the NPCC drive, and we have identified victims, both online and in the physical space. That is a clear focus for us as a service: how best to serve victims.
In many of the initial contacts with victims, we provide a very good service and there is very good feedback, but over time, with the pressures that we are under, that sort of connectivity, and the confidence and trust that victims have in policing, can get strained because of the lack of contact. That is not to say that things are not going on, but we have to work within a system—particularly through the criminal justice system, which is also under strain—where we have to work with victims as best as possible, to deliver the best possible service.
In terms of our service delivery to victims, not only are our tact and diplomacy important in the way we deal with them, at the incidents or wherever they report matters to us—whether current or historic—but there is almost a path by which we have to keep connected to those individuals to provide them with the best possible service. I think that is key for us: that connectivity, drive and support through all the criminal justice processes.
Sarah Champion
Q
Chief Superintendent Griffiths: We have the increase with the additional 20,000 officers who are coming in. It is my hope and expectation that we can actively deploy them to support victims, along with the other challenges and demands that we have. Do we ever have enough police officers? No. There are always things that we want to do, and we have the same ambition as society: to do the very best we can and do as much as we can. In that sense, we never have enough, but in terms of our ability to deal with some of the demand, the increase in resources is very welcome, and hopefully, we will be able to provide a better service to the whole public, as much as our focus around victims.
Sarah Champion
Q
John Apter: I completely echo and support Paul’s comments—he and I work very closely together on this. My colleagues want to do the best they can for victims of crime. What I would add to what Paul said is, “Let us not forget the victims within the service.” You heard from Mr Hewitt that assaults on officers, staffers and other emergency workers have increased by 19% during the pandemic—some horrific levels of attacks—and very often, my colleagues say that they feel they are treated as a second-class victim.
I think we have done enormous things to improve that over the years. A project called Operation Hampshire, of which we are particularly proud and which is being led by the Met, is improving the quality of service that victims within the service get. If I were to add to my ever-increasing wish list on the legislation, I would say that yes, the victims in the public must get the best service possible, but I want to see that same level of service—not better, but the same—extended to my colleagues and members of police staff, because all too often, they feel that that is not the case.
Mr Goodwill
Q
John Apter: This is a longstanding problem for policing and actually for all the emergency services. What we have seen far too often was highlighted in a case in the Hampshire constabulary, when a traffic officer—a roads policing officer, who was fully trained—was engaged in the pursuit of someone who had stolen a vehicle after quite a nasty burglary. It was a textbook pursuit; nobody was injured and we caught the baddies at the end of the pursuit. However, that officer and his crewmate were prosecuted for dangerous driving and they ended up in Crown court. The reason is that the law, as it is currently, does not recognise the training that the officer has received or the purpose to which the vehicle is being put. That puts my colleagues in a very vulnerable position.
So we have been campaigning for many years to try to redress the balance. I want to say on the record that this is not about the Police Federation saying that colleagues can drive as they wish without any fear of scrutiny; some people may have to face prosecution or inquiry. But far too many of my colleagues are prosecuted for simply doing what they have been trained to do.
All that we are seeking is for the training and the purpose of the journey to be recognised in law, because I think the public watching this would be astounded if they were to see a police vehicle engaged in a pursuit or an emergency response and that driver is then judged as any other member of the public. So, you take away the blue lights and the police markings, and that vehicle is treated as one being driven by any other member of the public. That is bizarre; that should not be allowed to happen.
We expect police officers and indeed other emergency drivers to get to a particular place as quickly and as safely as they can. The law fails to protect them at the moment. So, yes, we are seeking those changes. I am really pleased to see the Bill but there are some amendments that we want to see, and we are working closely with the shadow team and the Home Office to see if we can bring about those changes, to make sure that the legislation is fit for purpose and protects the officers who deserve to be protected.
Mr Goodwill
Q
I guess that with an ambulance and a fire engine, it is less nuanced, but with the police you would not necessarily know until you get to the scene whether life is at risk and whether it is necessary to speed there.
John Apter: Indeed, and the training has certainly evolved. The emergency response and the pursuit training for police drivers has evolved over the years, and the training certainly brings in the judgment—it is all about the information that the officer will receive.
I was a roads policing officer for many years. I was trained in response and that judgment is so important because very often at the end of a pursuit or an emergency drive, it is the driver who is responsible for their actions—nobody else. So, yes, you can only deal with the circumstances that you are presented with and you have to risk-assess in that moment. It is a fine balance.
However, I would say, and I genuinely believe, that we have the best driver training in policing in the world—I really do believe that. Our driving standards within policing, with the emergency driving, are exceptional. We just need that element of protection, but it is not to say—I have used this phrase before—that I condone a wacky races culture. That is not what I am supporting. It is about balance.
Mr Goodwill
Q
Chief Superintendent Griffiths: The only bit I would add is that there are circumstances where officers still have to exceed the speed limit as part of their duty. So it would be quite important for us to consider surveillance officers, those doing diplomatic escort and so on, where their driving may leave them in a position where they are under investigation, and it would be reasonable to have the same standards applied to them in the circumstances that could prevail.
Maria Eagle
Q
Chief Superintendent Griffiths: I know that you have had extensive evidence on this from Chief Constable Harrington as the NPCC lead. Our members play a significant role in protest, whether they are silver or gold commanders, depending on the size and scale of the protest. One emerging trend that has caused them great difficulty has been the change in tactics with some of the protest processes, such as protesters gluing themselves on to certain items involving vehicles—locking on. That change in their movement and the inconsistency have caused our members considerable challenges in terms of how best to interpret the law and apply it in a necessary and proportionate way, so there is support in terms of providing consistency for some of the challenges that they face as the operational public order commanders.
In terms of some of the definitions around “serious disruption” or “significant impact”, we will obviously wait for that to be clearly defined by Parliament, but the training mechanisms that are in place for our public order commanders and public order teams are really significant, are quite detailed and do allow them to really play through and work through some of the judgment calls they have to make, and some of the judgment calls may have to be made within seconds, so some of the changes and amendments do gain support from us.
Maria Eagle
Mr Apter, do you have anything to add from the federation’s point of view?
John Apter: These were changes that the Police Federation had not particularly called for, but what I do support, especially after listening to Chief Constable Harrington, is the view that we need to evolve the Public Order Act. Protests have evolved over the years. The way individuals react and, very often, confront police officers has dynamically changed. The vast majority of protests we do not hear about: they are unremarkable; they are peaceful. I do not think you will find many police officers, if any, who do not support the right of peaceful, lawful protest. But we have to evolve; the legislation must evolve to be dynamic, as the protesters are. Very often, we see on our television screens so-called peaceful protests, which are hijacked by those with an agenda to cause violence; we see this time and again. So while the Police Federation has not called for this particular part of the Bill, we are supportive of an evolution of the Public Order Act to make sure that it is fit for purpose but still allows lawful protest and gathering—bearing in mind the pressures on policing at the same time.
Maria Eagle
Q
Chief Superintendent Griffiths: I think the relationship between the public and the police has never been more tested than it has been in the last 18 months. Some of the work and effort that has gone into public relations at a time when we have had to police—some of the laws that have been put in place for the covid restrictions have really put a strain on the relationship, in terms of how we balance peaceful protest with trying to maintain the health regulations that are in place. The relationship that we have with the public is fundamentally important to us, and some of the polls that have come out show that there is significant trust and confidence across the public in general. We recognise there is certain strain with certain communities, but in the main we do have public support. Knowing that that relationship is so strong and knowing about the use of the Human Rights Act in everything that we do in terms of policing should provide the public with the necessary reassurance that we police in an appropriate, lawful and necessary way, and we will continue to do so.
Maria Eagle
Q
Chief Superintendent Griffiths: One of the most important factors that has emerged over the last 18 months and that is a fundamental part of many of our police command issues—whether that is public order, investigations or firearms—is effective communication with the public, so that there is a clear understanding about what they can and cannot do, what we can and cannot do, and how that relationship evolves. We want to facilitate peaceful protest, because it is a fundamental part of our liberal democracy. That is golden to the public, and it is golden to policing as well, but how we balance the human rights of all the individuals, including the ones who are impacted by protest, is a really difficult and challenging balancing judgment that needs to be made by police commanders. From my perspective, a lot of this is about effective communication on what is lawful and what is not lawful. We need to make sure that liaison is in place where there are leaders in relation to the protest issues, so that we can plan in advance, facilitate it is as best as possible and continue as we have done in many veins, in terms of making sure to the best of our ability that people can protest and not be impacted either way.
Maria Eagle
Mr Apter, do you have anything to add from the federation’s point of view?
John Apter: Obviously, the relationship with the public is integral to our style of policing and for the communities, and it has been tested. Paul is right to say it has been tested to the limit in some places over the past 15-plus months. The overarching issue with the Bill, and on protest, is one for the NPCC and, as Paul says, for the commanders, but when relationships break down, it is my colleagues—my members—who feel the brunt of that out on the streets. Of course, when we are policing protests or any sort of activity where there is high emotion and where there will be an element, in some cases, who will be intent on violence no matter what we do, we have to react accordingly. But communication is key, accepting that some will not want to be communicated with; they will not want to hear the message. The relationship is so important—I cannot stress that enough. I agree with Paul: despite the challenges over the last year-plus, the relationship with the vast majority of the public is still very much intact and still very positive.
Maria Eagle
Q
John Apter: I think the problem that we found with the coronavirus legislation was that it was unprecedented. I remember when the legislation was brought in—it was unbelievable. It was almost like watching a film being made. I have been a police officer for more than 28 years, and I would never have dreamt that we would be policing in the way that we were asked to police. If that is how policing felt, you can only imagine how the public felt, and we had to evolve. There were multiple changes of legislation that were not always as clear as they could be, and I understand why. I understand why the legislation had to be rushed through, but that came with problems, because my colleagues did not always know what was fully expected of them but nevertheless did their best in the most trying of circumstances. With the Bill, Parliament can inspect and go through the processes in a timely way, so I hope on behalf of my members that whatever the Bill looks like at the end of the process, it will offer clarity and guidance, and that people will completely understand what is expected of them, both within policing and for the public. I have hopes, and Parliament will do what it does on scrutiny as the Bill goes through that process.
The Chair
Mr Griffiths, is there anything you want to add?
Chief Superintendent Griffiths: I was just going to add that when some of the health regulations were introduced at pace, at speed and at scale, there were moments when there was a lack of consistency across the country, but that was gripped by the police service with the four Es approach. The reality is that applying consistency through this legislation will aid public order policing across the whole country. As we move forward and develop, in line with the legislation, we will do what we always do, which is to increase our communication, and review and adapt accordingly, to best facilitate peaceful protest.
Siobhan Baillie (Stroud) (Con)
Q
John Apter: I declare that I was a special constable before I was a regular officer. I am passionately supportive of our special constable colleagues. I have always thought it was an injustice that special constables could not, if they wished, be a member of the Police Federation, as the representative body of police officers.
When I was a special many years ago, over on the Isle of Wight, I was not allowed to drive police vehicles, generally I was not out on patrol on my own and I certainly was not allowed to be a specialist in any field, but I did feel part of a team and I contributed. The special constabulary, thankfully, has evolved considerably over that time. Special constables are response drivers. They stand shoulder to shoulder with my colleagues. They have exactly the same powers and they carry exactly the same risks.
I have always thought, even when I was a special, that it was wrong that they were not allowed in law to be members of the Police Federation. The Police Federation has been pushing for this measure for a number of years now, not always with the support that we have now to get it where it is in the Bill.
When the Bill goes through with special constables able to be members of the federation—fingers crossed they do—special constables will feel included. I speak to many special constables, who often feel that it is wrong that they are just not included or considered. That is going to change because of the Bill. They will have the same legal support and welfare support. They will be treated as equals alongside my colleagues. It is absolutely right and proper that special constables have a credible, loud voice alongside the representation of other colleagues. This measure is long overdue; I believe passionately in it and I am looking forward to it being in the legislation.
Chief Superintendent Griffiths: We really value the contribution of special constables and other volunteers through our networks across the country. In terms of their contribution to policing, what they do is quite significant. Some of the work that they did through the covid crisis continues to amaze us. It is a valuable contribution. They epitomise the relationship between the public and the police.
I have always had a close working relationship with ASCO, the representative body—the Association of Special Constabulary Officers. This legislation is an enabling opportunity for special constables. It is right and proper that they get protection and support. I have raised issues about funding and true representation, but the legislation has support in terms of its enabling role. Those other reservations about best protecting the rights and so on of special constables are true and dear.
Siobhan Baillie
Q
John Apter: I am really pleased to see these measures in the Bill. The violence that my colleagues face is unprecedented. It increases year on year. As Mr Hewitt said earlier, we have seen a 19% increase in assaults on emergency workers during the pandemic—predominantly police officers. The level of violence has increased also. I have been a strong campaigner, and it is not only about a suitable deterrent in the courts. It is also about better training, better equipment, better support, welfare support, and treating police officers and police staff who are victims of an assault as a victim should be treated, which has not always been the case.
I have only one issue with the legislation. There must be a deterrent, but the increase in sentencing will mean nothing unless the courts actually use their powers. On the sentencing guidelines and what we have seen in recent years, I and my colleagues who are victims would say that perverse sentences have been handed down to people who have been extremely violent and inflicted nasty injuries on police officers or police staff, and they have walked away from court. I completely appreciate that it is case by case and the sentencing guidelines need to be followed. In the cases that I have examined, the sentencing guidelines have been adhered to, which tells me that the sentencing guidelines, certainly for assaults on my colleagues, are not fit for purpose. I absolutely support the increase in sentences, but we have to have a real fundamental review and a sensible conversation about sentencing guidelines as well. That is something that I would like to see pursued.
Chief Superintendent Griffiths: Naturally, because of the role and responsibilities of our members, thankfully, in one respect, we do not encounter direct risk in that sense, but I regularly get feedback from our members about the risks to the people that they lead, and it echoes John’s point around the rise in assaults on police officers and other emergency services. We have seen a 19% increase in the March period compared with last year. We are very grateful to Parliament for considering the increase in the sentence for assaulting emergency workers, but we are under no illusion that this is only one part of the jigsaw. We need to work with not only other criminal justice agencies to best represent, show and demonstrate the impact of this across society, but internally, in terms of our kit, equipment and training and also our development around tactical communication. We need to strengthen that ability to defuse situations by word rather than force. So there are many aspects to this, but we fully support Parliament’s consideration of extending the sentencing available.
The Chair
We will go to Mr Dorans. This had best be the last question before I go to the Front Benches.
Allan Dorans
Q
John Apter: That is a really important question. If you go back 10 years or so, my colleagues would say very little. Some forces were better than others, and that is chief constable-led. If a chief constable has emotional intelligence and those values about how people really matter, that trickles through the organisation, but that has not always been felt. There has been a sad lack of consistency when people are in specialist posts that expose them to trauma. I can give you a lived experience. For many years I was a family liaison officer dealing with trauma every single day, knocking on far too many doors and changing people’s lives, and not for the better. That was many years ago, about 10 years ago, but my force at the time, Hampshire Constabulary, was very innovative and gave us annual check-ups—welfare and psychological check-ups. We had welfare officers in the force. We had a lot of support, but then with austerity, unfortunately, some of those measures were removed and the force was a poorer place for it. That was typical across policing.
We have moved forward in such a positive way. I am often criticised by my colleagues because I talk up the good work going on—whether it is Oscar Kilo, the national police wellbeing service; the Coventry police, which are doing really good work in this area; or the Police Federation, where we have invested heavily on a welfare support programme for our colleagues—but it is not always felt by all our members. Getting that message out to people about what is available and how to access it is a postcode lottery across policing. We need that consistency.
We need occupational health to be benchmarked to a certain standard. I know we are going to have a chief medical officer—hopefully for policing—which I hope will bring that consistency. That is where the covenant can have some good legislative teeth to say to forces: “This is not a nice to have”. We can’t talk all day about looking after our people and say: “Put a post-script about wellbeing and the job is done”. It is much more than that.
That is not to say that is the norm. I don’t believe it is now, we have come a long way, but the covenant must show its teeth. It must be brave and make sure that that consistency is across all policing to support my colleagues, certainly with their mental health. We are seeing a crisis in mental health in policing that we have never seen before. It is a real significant concern: a continuous exposure to trauma. Officers are being exposed to levels of trauma that are unprecedented—more than people have seen in the military. This is based on evidence from the charity, Police Care. Something has to be done. Things are happening, but the covenant is a great opportunity to pull that all together.
The Chair
Chief Superintendent.
Chief Superintendent Griffiths: Picking up on mental health and trauma impacts across the police service, we are also starting to see police charities supporting these areas. There has been a 36% increase in inquiries to the police charities compared with the previous year, the vast majority of which are mental health concerns. There is clear evidence of the impact of trauma on police officers and staff. We recognise that everybody will experience some trauma in their life, but the exposure for police officers is quite significant.
We then have to look at what is the best thing that we can do. There is a whole array of things that we can do: providing appropriate space for debrief, increasing communication, and occupational health support. There is a whole catalogue of things, but I would class those as probably falling under what I would describe as the programme management, rather than any legislative concerns.
There are two matters I would like to raise on the police covenant. The first is the important role of independence within the processes, so that we get an independent view. Our employment rights are restricted—naturally so, we would not contest them, because of the nature of our role and responsibility in society—but measures that can be put into place to provide independent support, guidance and oversight are really important, so I stress the importance of independence in the system.
I would also like to raise the issue of mental health concerns and seeking the police covenant as a way through helping and supporting. Unlike the Police Federation, the Superintendents’ Association goes beyond the 43 Home Office forces. We support other police forces, including British Transport Police and Civil Nuclear Constabulary, which at the moment are not directly covered by this legislation. I would like to emphasise the importance of the whole police family and make a plea to consider as part of the legislation those wider non-Home Office forces that play an integral part in UK policing.
Sarah Jones
Q
You have just made exactly the point that I was going to ask you about, on the importance of the police family and the wider family as part of the police covenant. Can I push you both a bit on the notion of independence from the Government when we are looking at the covenant? What could that look like? Would there be a benefit of some oversight from policing bodies, perhaps chaired independently, on the covenant report that is produced by the Home Secretary? Would you both welcome that?
Chief Superintendent Griffiths: It has always been my perception that a police covenant is almost the sector asking the Government for additional support or assistance, or to rule out any adverse impact on police officers, and for the Government to play their role across all other public agencies to try to level the ground and make sure everything is fair and supportive for policing.
The NPCC has employer responsibilities, which are sometimes in statute and are sometimes just its moral code for how to look after staff, so the way it is constituted in terms of how this flows is really important. My fear is that it would be left in a situation where the Government would direct the NPCC on how to support its own police officers, staff and volunteers. It is incumbent on Parliament to consider how best to get some level of independence, in terms of the oversight, and echo the responsibly to work across Government in terms of supporting the police covenant and all officers and staff.
John Apter: I want to touch on something that Paul said to a previous question. It is important that the Police Federation’s views are noted. This is about who the covenant actually benefits. Paul is right that we represent the Home Office forces, which are the big chunk of who the covenant legally covers, but we work incredibly closely with the non-Home Office forces, Police Scotland, the Scottish Police Federation and the Police Service of Northern Ireland. It is really important that we are all treated equally within policing. We do not want the benefits that the covenant hopefully brings to be diluted in any way for any part of policing. I completely support and echo what Paul says.
On the independence—absolutely. When we were pulling together our concept of the covenant—obviously we want it to be very far reaching, but we accept that we have to start somewhere—one of the things that I was insistent on was that it must be enshrined in law; it must mean something. It is a positive step for the Home Secretary of the day to report to Parliament on a legal framework. It is right that the Home Secretary of the day has that responsibility.
When we talk about oversight, I do not want the covenant to become wrapped up in bureaucracy and red tape. If it is, nothing will be achieved and nothing will get done. Within policing, we have some strong views about the need for it to be independent. That is not to say that the Home Secretary, the policing Minister and the Home Office have not been incredibly supportive. They have, and we could not have got this far without that support, but in order to make the covenant meaningful for our members, retired colleagues and volunteers, I think that level of independence on the oversight programme, the oversight board and the delivery board, which would then lead in to the Government, is really important. We fed back those views collectively as policing. It is not just the federation calling for this; collectively, we all believe very strongly in it.
Sarah Jones
Q
Can I ask Paul about pre-charge bail? What are your thoughts about breach of bail, which we have talked about previously? We are finding our way through that with this piece of legislation. How do you think that would work in an ideal world?
Chief Superintendent Griffiths: I should probably start by saying that we did voice some significant concerns in 2016 about some of the changes that were coming in and highlighted this at the time as a joint letter between the Police Federation, the Police Superintendents’ Association and the National Police Chiefs’ Council. We worked with the changes that Parliament instructed, and we are grateful for the recent amendments that may come through the Bill in terms of timeliness and some of the issues that have been challenging us over the last four years.
We are supportive of the vast majority of it. The one area where had some concern was on the breach of police bail, where bail conditions are imposed and then suspects continue to breach those bails. Of course, those bail conditions would be there to protect victims or even the wider public. It could be extremely useful to us for that to be an offence in its own right. I note that there is an introduction to prevent the start of the custody clock, which was another risk that we thought may come from somebody who would consistently breach their bail, risking an impact on the investigation custody time limits for other aspects for which they were under investigation. The Bill suggests that three hours is sufficient to deal with that breach of bail, and that seems appropriate, but it could be beneficial to the police service for that to be an offence in its own right in terms of processing individuals for such breaches.
Sarah Jones
That is really helpful; thank you. Shall I go over to Alex? I am aware of the time.
Alex Cunningham (Stockton North) (Lab)
Q
Chief Superintendent Griffiths: We have not been called to provide any advice or consultation on that. Could I get back to you in writing on that one? I would probably have to do more research.
The Chair
Do you have anything to add, Mr Apter?
John Apter: I am afraid I will have to give the same answer.
Victoria Atkins
Q
John Apter: I think we are pushing on an open door. Policing has changed significantly over the past decade or so, and it is the same with chief constables, who may previously have been reluctant to get certain wellbeing initiatives into place. There is wholesale agreement that the covenant will be a positive thing for policing.
The issue we have at the moment is that although we know the principles of the covenant, we do not really know what exactly will be in it. Chief constables know me very well, and I, on behalf of the organisation, will be holding them to account, but I genuinely think that it will be a partnership. Perhaps that is naive, but if, as expected, the legislation allows the covenant to be enshrined in law, I will be saying to chief constables very clearly, “This is not something you can cherry-pick. This is in legislation. This is to benefit our colleagues, staff, volunteers and so on. It is not a nice-to-have; it is an essential.” So they will be held to account, but in fairness I think it will be a productive partnership.
Victoria Atkins
Q
Chief Superintendent Griffiths: Most of them have probably worked their way through the hierarchy of public order command systems, from right at the frontline, following through to supervisory and management roles, but not necessarily in all cases. There is a detailed training command course for public order leads, which embodies everything that you would expect: to understand the tactics necessary when utilising public order, seeking the appropriate advice and guidance, understanding the law and the community, and all the different aspects of decision making that are so important to understand how best to corral a crowd or deal with a peaceful protest.
They will learn how to deal with everything from small, minor protests with just some shouting, to some of the challenges that, sadly, we have seen in the past 12 months, where they have faced attacks by missiles, etc. The training is detailed. I have absolute confidence in some of the public order commanders. We have to understand that they are called to make really difficult judgment calls, balancing human rights of individuals and the recognition of their own staff and the public. They make difficult decisions in a short space of time. It is a credit to them as individuals and to the training processes that allow them to do that.
Chris Philp
Q
Chief Superintendent Griffiths: You are right to clarify that. Unfortunately, we have not been consulted on that particular aspect. If I can provide written evidence, we will explore a response and get back to you.
Chris Philp
Q
John Apter: Absolutely, the risk of a custodial sentence would be a meaningful deterrent, as well as everything else. As I said, it is about the training and equipment that officers and staff have. But I go back to my earlier point: the increase in sentencing will mean nothing if the sentencing guidelines do not allow the courts to use those powers effectively. Far too often, my colleagues feel that the wider criminal justice system lets them down. We need to address that, as well as increase sentences. Yes, I believe that it would be a deterrent.
Chief Superintendent Griffiths: It is very much welcome and supported. There is a hope that it will be a deterrent. We recognise that any sort of assault on emergency workers has a complex and dynamic number of factors that may cause that situation to arise. We must do everything in our power to eliminate or minimise every aspect of those factors. Hopefully, it will have a deterrent effect, and will send a very strong message from Parliament to emergency workers to say, “You are valued for what you do. We support you, and you should not have that sort of risk when trying to carry out your duties.” We will review the situation over time, to see what the deterrent effect is, but we are grateful for the support that Parliament proposes.
Chris Philp
Thank you. It may be worth you engaging with the Sentencing Council once the legislation passes, to ensure the sentencing guidelines reflect the seriousness of the offence, and that the sentences in practice reflect Parliament’s intention.
The Chair
Now is a good time to draw this session to a close. I thank the witnesses for their evidence this morning.
Police, Crime, Sentencing and Courts Bill (Second sitting)
Tuesday 18th May 2021
(3 years, 2 months ago)
Public Bill CommitteesRead Full debate Police, Crime, Sentencing and Courts Act 2022 View all Police, Crime, Sentencing and Courts Act 2022 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 18 May 2021 - (18 May 2021)
The Chair
Q
Phil Bowen: Hello. My name is Phil Bowen and I am the director of the Centre for Justice Innovation. I would like to make the Committee aware that from July 2020 to March 2021 my organisation had a contract with the Ministry of Justice that enabled me to provide policy advice and challenge to Ministers and civil servants on the community supervision aspects of the sentencing White Paper and the Bill.
Adrian Crossley: Good afternoon. My name is Adrian Crossley and I lead the criminal justice unit and the addiction unit at the Centre for Social Justice. The CSJ is a think-tank that advocates social policy aimed at tackling the root causes of poverty in the UK.
Ian Levy (Blyth Valley) (Con)
Q
Phil Bowen: Of course. The Centre for Justice Innovation has long been a supporter of problem-solving courts. At their simplest, they bring together specialist supervision and intervention teams with the powers and authority of a court to review progress regularly against a sentencing plan. They generally operate out of existing courthouses and are built from existing resources. We already do work on and support about 11 courts across the UK that use problem solving to manage specific caseloads, including three in Northern Ireland, sponsored by the Department of Justice in Northern Ireland, and four in Scotland. That is in addition to the 14 family, drug and alcohol courts already in existence in England in the public family law system.
As you know from the Bill, the Government propose to pilot three separate and distinct models of problem-solving courts in England and Wales in the criminal court system: a substance misuse court model; a model to tackle domestic abuse; and a model to help vulnerable women avoid short-term custody. We are very supportive of the move, for which we have been calling for a long time. We believe that the evidence base on all three of those models is robust enough that the piloting of them in England and Wales would be useful as a first step before thinking about their further roll-out across the system. We think there is a real chance to reduce the use of unnecessary custody and tackle reoffending, particularly in the substance misuse and vulnerable women models and, in terms of the model to tackle domestic abuse, to really hold perpetrators to account and give victims a sense of safety and involve them in the ongoing supervision of those perpetrators.
Adrian Crossley: Thank you; I am grateful. I am very well aware of the work that Phil Bowen is doing. CSJ also endorses the use of problem-solving courts. They have the potential to be enormously beneficial to defendants sometimes facing serious matters across the UK.
In terms of the scope of the proposed pilots, I think that the chosen three categories—domestic abuse, substance abuse and vulnerable women facing prison sentences—are wise choices. What is best about a problem-solving court is that it draws from real specialist knowledge and experience that can really look behind a problem, understand it and provide practical solutions, so these issues are worth tackling. One point I would note as a matter of caution is that problem-solving courts at their best are fantastic, but they do pose dangers. I am pleased to see that we are starting with a relatively small pilot because it is important to get right the things that sometimes appear to be small. For example, listing cases for problem courts to ensure that they are before the same panel that can continually look at a case and review it, and understand that the team that they are working with and the person in front of them are important.
In our jurisdiction, we have sometimes had difficulty with listing in front of lay magistrates—problems that they do not necessarily experience to the same degree overseas in the US. So there are examples of things that need to be done well and right. I am pleased to see that those three categories have been chosen, because they are worth tackling, and I am pleased to see that the initial pilots are small enough to allow proper analysis and reform as we go along.
Bambos Charalambous (Enfield, Southgate) (Lab)
Q
The Chair
Adrian, would you like to go first?
Adrian Crossley: Yes. Thank you. I can entirely see that that concern is absolutely valid. We know from the CSTR—community sentence treatment requirements—model that substance abuse and mental health are both dealt with alongside each other, separately but often in the same hearings. It is an absolutely valid concern. I would also say that as well as substance abuse, there is now a growing need to consider the impact of gambling addiction. That issue is becoming increasingly prevalent in our country. Sadly, over the last 15 years, there has been an explosion in this sort of addiction, and it draws into crime the people who would not necessarily always fall into it.
What I would say—I have said it prior to this—is that problem-solving courts are good if they are done well, and I would hope that we do not get too prescriptive about what kind of person is in front of us and categorise them as a domestic abuse or a substance abuse case. Often people have complex and chaotic lives with lots of different things going on. I would hope that a problem-solving court done well might have a category that they call a substance-abuse court, but be equipped to deal with something such as mental health as well.
I practised as a barrister for some time and I know that often clients, like I had before me, have issues behind what is apparent from the offence, which could go unseen unless probed. I spoke to a colleague earlier today and he explained to me that there are some 300,000 people in the UK right now who are indebted to a loan shark. You will never see the chaos behind someone’s life from a simple shoplifting offence. You need to be able to explore that. If problem-solving courts and pre-sentence reports are done well, in line with the new probation reforms, this should become clear and we should be able to help people with multiple needs before the courts.
Phil Bowen: To add to that, I understand that the current plans in the Ministry of Justice are to pilot those three types of models, but as all the models are drawn up, there is an awareness that people who would be eligible for substance misuse court are likely to have co-occurring mental health needs, and those would need to be addressed at the same time. The substance misuse court that currently operates in Belfast and the drugs court that currently operates in Glasgow recognise the complexity of people’s substance misuse and other needs, and seek to address them.
It is pretty clear, from what I have seen, in existing practice and what the Ministry of Justice is beginning to develop, that there is a broad awareness that it may be a trigger for intervention that vulnerable women are identified as at risk of custody, but there will be a recognition and services targeted at a range of their complex needs, one of which almost invariably will be mental health. That is very much at the heart of what the Ministry proposes, and we support that.
Bambos Charalambous
Q
Adrian Crossley: We welcome the addition of the new statutory duty clause for courts that requires them to consider the welfare and best interests of the child. We think that is a positive part of the Bill. It would be nice if it could go further. Seeing custody as something to keep people safe is not correct, but there is broad support, as far as I can tell, from people with an interest in youth justice for this change. I know some of my colleagues would like it to go further.
Adrian Crossley: I can only add that we have seen a substantial reduction in custodial sentences for youths over the last 10 years or so. We welcome efforts to encourage rehabilitation and use it absolutely as a last resort. I think it goes far enough.
Mr Robert Goodwill (Scarborough and Whitby) (Con)
Q
Currently, as I understand, clause 45 would extend those definitions and include anyone aged over 18 who supervises or works with 16 and 17-year-olds. I know from personal experience with my own family that, often, older children at a dance school, perhaps over 18, often chip in to help with tuition and coaching. In some cases, they may even be in the same class at school as a 17-year-old who is part of that dance academy. I wonder whether there could be difficulties in situations such as that. Indeed, we also remove the right to give consent from 16 and 17-year-olds who may find that infringes on their ability to choose who to have a relationship with. Perhaps Mr Crossly might be most appropriate to respond first.
Adrian Crossley: The first point to know is that affording some protection in this area is absolutely imperative. We have seen abuse of trust that has led to not just inappropriate relationships—that is not what we are dealing with. We are dealing with sometimes highly vulnerable children who are sexually abused. In order to make an inroad into dealing with that sort of offending, we need to get to the crux of how it comes about. All too often, positions of trust can allow a perpetrator to hide in plain sight—not only that, they make the person who is abused feel partially responsible and incapable of speaking out. The perpetrator recruits the trust of the people nearest and dearest, including their parents.
While I appreciate that there may be some difficulties in the administration of this issue, that will not unnecessarily impinge upon the movement of people and their enjoyment of their leisure, I do not put that value at naught—absolutely not. I do see, at the other end of this, we have a very real risk, which has existed pervasively throughout our society for a long time. I think the extension into the position-of-trust model starts to move away from identifying it as in small pockets of society and to see it as the modus operandi of some perpetrators of crime. I think its broadness is important and the clause as it stands is sufficient.
Mr Goodwill
Q
Adrian Crossley: So much of this, as with any law, is about how it is actually executed on the ground and how the decision-making processes operate. At this stage, when you are looking at the written form of the clause, I can see that there is potential there for consent. The administration of a clause like this relies on good practice, and I would say that these things can be circumvented. You have the same sort of problem with something as controversial as stop and search, where you can see that there may be a very good reason for it but, done badly, it can be incredibly corrosive to society; it can stop people moving around freely. But that does not mean that the legislation itself is wrong. It will come down to how we administer this, and a continual review of that is necessary. But I do accept this: it is not possible for me to say that there will not be friction and difficulty as this clause is administered.
Hywel Williams (Arfon) (PC)
Q
Phil Bowen: One example to offer the Committee is from the public family law system. The Welsh Government and the courts system have just agreed to create a new family drug and alcohol court. The issue is similar, in that it requires a partnership between people in the Welsh Government, local authorities and the courts service.
I certainly know that, as part of the Ministry of Justice’s scoping of where the pilot sites might be, it is very keen to speak with Mayors, police and crime commissioners, the Welsh Government and others about where the most suitable sites are. So I do not think it is incompatible. It certainly will require partnerships and collaboration. That is what exists already in existing problem-solving courts; as I say, it already is going to be a feature of the new family drug and alcohol court in south Wales. So I do not think this is insurmountable. I certainly know there is a strong interest in the Ministry to have discussions with the Welsh Government about whether they think it is appropriate to have one of the problem-solving court pilots in Wales. I think there is still work to be done there, but wherever they exist, they require partnerships between different agencies and both national actors and local actors.
Hywel Williams
Q
Adrian Crossley: Sentencing inflation is a very real problem. For decades now, we have seen incremental rises in sentencing, right across the board. There is a theory that the more we increase the more serious offences tariffs, there is a trickle-down effect; essentially, it pulls up sentencing for lesser offences. We see, for example, sentences for drug offences increase over a 10-year period by about 30%, and for theft by around 22% over the same period. This has a very real effect on people’s lives. It is not just a question of a few extra years—that would be serious enough as it is—it can often be the difference between somebody having a sentence suspended and actually being taken away and put into a cell, so it is a very real problem.
Some regard this as a Bill of two halves with what some regard as very punitive sentencing on the one hand and some very progressive, challenging and, I would say, quite brave proposals for community reform and rehabilitation on the other. A great deal of subjectivity is involved in deciding how much time somebody should serve for very serious offences. I do not see anything necessarily wrong with reviewing how this society deals with very serious offending. If there is an increase in tariff, which we as a liberal democracy think is right, that is fine, but there are real dangers with that. My view is that we are likely to see a Prison Service that is wholly incapable of dealing with the stress of an extra 20,000 people—what is forecast for the next few years—inundated with new offenders who are likely to have very little access to meaningful reform and rehabilitation. That is deeply concerning to me.
If as a society we feel that that more serious offending requires a higher tariff, we also have to address the numbers in prison. The most important thing we need to do is to look at whether people who are currently being sent to prison, perhaps at the lower and medium end of offending, really need to go there. The Centre for Social Justice published a paper last year called “Sentencing in the Dock”. Our position was very clear that modern technology, with GPS tagging and alcohol tagging—I could list a number of requirements that are already rightly in the Bill—could provide a sufficient deprivation of liberty to act as a real punishment for serious offending or medium to low-level offending.
We need to be much bolder about the amount of people we keep out of prison and deal with in the community. We can see clearly that in treating alcohol, drug addiction, mental health problems, literacy and numeracy, you are far more likely to have an effect on those key drivers of crime if you deal with people in the community than if you put them in prison. We could be much bolder in dealing with community disposals. There is a real risk of sentencing inflation here, of a prison population growing out of control and, in my view, of brutalising people who might otherwise be able to reform.
Phil Bowen: I agree with a lot of that. The only thing I would add is that proposals are set out in the White Paper that are being taken forward by the Ministry that seek to strengthen the community justice parts of the system. They include things such as investing in early intervention and prevention, including the improvements to the out-of-court disposals regime, which I think is vital for young people and people from black, Asian and minority ethnic communities in particular.
The nationalisation of the probation service represents a real opportunity to strengthen community sentences and win public confidence in community sentences back from the courts. I also think a strong interest and investment are needed in high-quality treatment for offenders and the more dynamic use of electronic monitoring. While I agree with a lot of what Adrian has just said that some proposals in the Bill seek to increase the use of prison, that takes away money from smarter investments in community justice. I would also like to emphasise that there are things in the Bill that we support, because we think they take forward that idea of smarter community justice.
Sarah Champion (Rotherham) (Lab)
Q
Adrian Crossley: My view is that definitions usually start their life imperfect and develop with a great deal of expertise from public and experts who understand this issue perhaps better than I ever could. Notwithstanding that, and understanding that there may be a starting point of imperfection, they are useful. In my view, definitions of important criminal principles help real decision makers on the ground make practical decisions that are fair and consistent. Notwithstanding the fact that I see problems with that—we have seen so many different definitions of domestic abuse, which started its life as domestic violence, that it is clear these things are fluid and can develop—I think they have a practical application.
Phil Bowen: I have nothing to add to that. I agree with that.
Sarah Champion
Q
Phil Bowen: I think presumption to all of them is very useful. The other thing that I think is worth underlining is that part of the model of the specialist domestic abuse courts, which ought to operate in every magistrates court but at the moment do not, is that independent domestic violence advocates make sure the victims are asked about special measures and those special measures are put in place. I think there is a delivery and implementation question, as well as a legislative question, about whether the resources are there to help victims of domestic abuse and ensure those special measures are put in. Yes, I think a presumption would be useful, but I think it also requires attention to implementation and delivery issues. Special measures should already be used in specialist domestic abuse courts across our magistrates court estate and, in many cases, domestic abuse victims are without access to those measures, for want of anyone who asked.
Sarah Champion
Q
Adrian Crossley: I endorse pretty much all of what Mr Bowen has just said. I will not repeat what he said, so forgive me, but I particularly want to emphasise the focus that was placed on the reality of actual implementation. I worked for some years as a prosecutor and in defence, and I can say that, very often, lack of special measures is not the result of an omission in thought or some massive procedural error. Sometimes the implementation of special measures and, certainly, the pragmatics of what happens in court are not there and the stress that that puts witnesses through is absolutely huge. Sometimes, we talk a lot about witnesses not turning up or defendants gaming the system, hoping that the stress of waiting for trial is so bad that the witness just will not turn up, but the chaos and confusion that is caused by a broken system that is fixed on the day can be hugely distressing to a witness. I think implementation is important.
That point is not where I was going to go, however. Just for balance, I should say that it is always right that the accused should be able to face their accuser and evidence should be tested properly. Nothing that I have seen that has been proposed, including video examination in chief and cross-examination before trial, gives me any concern that without the right implementation that could not be done well. We always have to have an eye on making sure that the accused has a fair trial. This is important; it is not a nicety. However, the measures I have seen proposed give me no real cause for concern about that. I think it makes a massive difference to the view of the complainant and, unfortunately, it would also make a massive difference to the view of some defendants, who may face the reality of the evidence against them earlier. It may encourage pleas that should have happened earlier.
Alex Cunningham (Stockton North) (Lab)
Q
Phil Bowen: Very quickly, I think the proposal in clause 100, which reduces judicial discretion about imposing minimum custodial sentences, is a regrettable step. I have seen no evidence to suggest that that discretion has been misused. I am not sure on what basis that clause was proposed, and we have been arguing for its removal from the Bill. I see a place for minimum custodial sentencing, but I tend to be against anything that fetters the discretion of judges.
Adrian Crossley: Statutory minimums can have a function when we want to give a standard approach to the severity with which society regards a certain offence. My view, though, is that over a decade or two, judicial discretion right across the board—not just in this clause—has been steadily eroded, and I do not find that particularly helpful in criminal justice. Judges are well equipped to make decisions about what is in front of them, and they are well advised. No guidelines can ever foresee the variety that life can bring you, and my view is that the more judicial discretion there is, the better our criminal justice system is likely to be.
Alex Cunningham
Q
Phil Bowen: In general, we support the move to the two-tier system. It is something that was called for by the National Police Chiefs’ Council, as you know, in 2016. Fifteen forces already operate such a simplified framework. The concerns we have are twofold. One is that in consultation events that we have already held with a number of police forces, they strongly suggested that they wanted to retain the flexibility to issue the community caution—the lower tier—without conditions. In the existing framework, they are able to issue a simple caution that does not involve conditions. Police forces want that flexibility, and the new framework proposed by the Government does not allow that in the lower tier.
The second issue, which speaks to previous comments about disproportionality, is that we would strongly argue that it should be possible to offer the community caution—the lower tier of the two tiers—to individuals who accept responsibility for their behaviour, rather than requiring a formal admission of guilt. This is an idea that was raised in the Lammy review and has subsequently been raised in the Sewell report. We think it would be better if that lower tier could be offered to people, who are required only to accept responsibility for their actions. As the Lammy review suggests, that may encourage the participation of people from groups who tend to have less trust in the police and the criminal justice system.
Adrian Crossley: Drawing from the 2014 audit, there are some learnings from the two-tier system, most notably the training of officers so that they can refer people to the intervention that is appropriate and useful, better inter-agency communication, and sufficient time for implementation. Once that is done, our view is that this is a great step forward. We are very enthusiastic about it. This is about intervening and offering help, not just having a meaningless warning. We have spoken to charities that have actively said that these sorts of interventions, which encourage somebody to engage with treatment, can really make a life-changing difference to people. It is unrealistic to expect them suddenly to go into full rehabilitation, but it can make an introduction and open up doors that sometimes people feel are just not open to them. We see that there is real strength in this approach. We have also heard a number of police forces suggest that it would be enormously helpful to them if community resolution remained on the books. Certainly, it is currently the most widely used disposal.
Alex Cunningham
Q
Adrian Crossley: No, not the simple caution. It is a community resolution. It is slightly different and more like a contract with the police force that they can enter into to take the matter further. That is enormously popular with the police right now. Just to be clear, our view is that the thrust of this two-tier system is that there is a condition attached to allow the disposal of tier one and tier two. We think that is a very positive thing.
Alex Cunningham
Q
Adrian Crossley: I think that risk is entirely possible; this is quite well documented. We have to look at ways to challenge that. Phil briefly touched on the “Chance to Change” pilots that are currently being operated, which look at this slightly lesser form of admission.
Our view is that we have to address the mischief here. If there is mistrust in this system, then there are two things that can be done. First, proper independently chaired scrutiny panels can look at the way these are run and the advice that they give to people when they enter the police station. I know that the Government have already suggested that that might be a way of dealing with this.
Above and beyond that is access to legal advice and to legal aid. We are seeing an attrition of people’s access to legal advice. My experience is that when people are properly advised about what is in front of them, when they understand that they are being treated fairly and decently, and when they understand the evidence against them, then they are in a position to make an informed choice.
If it is just a choice about, “Do you trust the police?” then I can entirely see how some communities would have reservations about that and even, when it comes to sentencing, well-founded reservations about pleading guilty. A system that is transparent and provides good training, a good understanding of what they are involved in and, clearly, good legal advice at an early stage, could combat that.
The Chair
I am afraid I have to strike a balance and I have to switch to the Minister, for his questions. I am sorry.
The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)
Q
Adrian Crossley: So that I understand the question and I answer it properly, are you asking what merits we would need to see in order for there to be an expansion of minimum tariffs in sentencing? Is that what you mean?
Chris Philp
Or the risks. What are your views about the principles of the possibility?
Adrian Crossley: My own view is that judicial discretion should be king. I have not done any huge research into this, but in my view and from my practice, sentencing guidelines have become very prescriptive and they almost railroad judges into decisions. Judges always have parameters to work within, but what is before the court is often something that is necessarily unique. Minimum sentencing can shackle decision makers who are acutely aware of the facts in front of them.
The only benefit I see is in cases where there are overwhelming public interest concerns that mean that a minimum tariff would adequately address a specific mischief and would undo it. If I were to see that, I would regard that as a pro for minimum sentences. I would need to see an evidence base that that would achieve that.
Phil Bowen: I agree with what Adrian says. In general, a lot of the evidence from, for example, the United States on mandatory minimums is not encouraging, but I see an argument for Parliament identifying particular crimes of concern and putting those in place. We should be clear that the deterrent effect of that is likely to be pretty mixed. The evidence is pretty mixed about whether that kind of thing really does deter future crime, but I can see the public need for the Government to be seen to respond to public desires around particular signal crimes. That is why, although I do not reject them out of hand, I agree entirely with Adrian that judicial discretion is extraordinarily important because judges will know the facts of the case much better than the press or the public watching on.
Chris Philp
Q
Phil Bowen: I think the emphasis in the Bill and the White Paper on flexibility around the use of electronic monitoring is the strongest part of the proposals. What the Ministry seems to be doing, which I think is right, is to encourage probation officer discretion and the flexible use of electronic monitoring powers, both to control people where there is need for further control, and to loosen up things where they are doing well. Part of the problem with electronic monitoring to date has been far too rigid sets of curfews without the ability for probation officers to vary them while people are on community sentences. I certainly support that.
In terms of providing for longer periods of electronic monitoring, I can see cases where that may well be useful. The only note of caution that I would suggest to the Committee is that the evidence base suggests that for younger people—in particular, young adults who live at home and people assessed as low risk—longer periods of electronic location monitoring can have a backfire effect. In other words, it can lead to increases in reoffending. All that really means is that the Bill provides the powers that it does, and it is then the job of the probation service to use those powers as flexibly as possible and in line with the evidence.
Chris Philp
Thank you. I was going to ask about problem-solving courts, but I think that was covered adequately in earlier questions. I think Minister Atkins has some questions.
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
Q
Adrian Crossley: This policy actually has its origins in the CSJ. We are obviously very supportive of the serious violence reduction order. Just for clarity, and so I can answer that more fully, this is a post-conviction order. We regard it as being part of the wider system. We do not regard it as a stand-alone solution to knife crime in our country.
We see a very significant increase, not just in possession of weapon offences, but of violent offences perpetrated with the use of a weapon. What is clear to us is that we need to do something about that which is robust enough to challenge the mindset of someone leaving their home with a weapon. We draw from the group violence intervention models piloted in Boston in the US under Operation Ceasefire, which create a sort of pull-push effect. We really want to deter people from being able to leave the home feeling that they are safe walking around with a weapon. They should know that they are much more likely to attract police attention if they are on these orders. At the same time, in the sentencing court, we would hope that the order would be able to include other, positive provisions—perhaps even a knife crime behaviour order. Real intervention, engaging young people and pulling them away from that sort of offending can also have a pull effect away from that kind of offence.
I should say that currently, as it is being piloted, it is only for adults. Our view is that knife possession is pervasive across a number of age groups: it is particularly concerning when young people are carrying knives. We would like to see this scheme really being rolled out, so that we can intervene early when people are younger, to see that we do everything we can to take knives off the street and keep people safer.
The Chair
As it is 2.45 pm, we had better call this session to an end. I thank the witnesses for the evidence they have given to the Committee.
Examination of Witnesses
Jonathan Hall QC and Matt Parr gave evidence.
The Chair
Q
Jonathan Hall QC: My name is Jonathan Hall QC. I am the Independent Reviewer of Terrorism Legislation and I carried out a review into the management of released terrorist offenders after the Fishmongers’ Hall attack, which is relevant to the evidence that I will give today.
Matt Parr: I am Matt Parr and actually I am not the Chief Inspector of Constabulary; that is Sir Tom Winsor. I am one of the Inspectors of Constabulary; I have been doing that job for almost five years. I think the particular reason that I have been asked to give evidence today is that I have just led a series of inspections, including around protests and the way police look after them; into the Sarah Everard vigil; and then this week into the way that the Police Service of Northern Ireland policed a high-profile republican funeral. So I have been doing quite a lot of work on protesting, and I have had some discussions with the Home Office about the legislative proposals.
Antony Higginbotham (Burnley) (Con)
Q
Matt Parr: Three aspects of that come to mind. First, the use of social media has clearly enabled the organisers of protests to be significantly more nimble. It means that some of the obligations to engage with the police beforehand can be circumvented, creating really quite significant problems for police commanders in the way they plan for protests.
That is the first aspect, which is reasonably obvious to anyone who has been on or near a protest, namely that there is huge potential for social media to be used—in a good way; I am not saying in a bad way. But its ability to galvanise and organise and inform people to join protests or indeed in the way they conduct them is wholly different to what the police had to contend with 20 years ago.
The second point is slightly more subtle. When we conducted the inspection into protesting, we found that more and more police forces are doing more and more policing of protests, for one reason or another, and they are also finding it ever more difficult to persuade their officers to train to be public order commanders, or indeed to make themselves available to do the lower levels of training, so that they can then help out on the protests.
One of the reasons cited for that is that police officers at protests—not in all cases; the temptation to generalise and to be unfair to all protesters is something that we have to resist here—sometimes get identified through social media. One reason that they are disincentivised from going on these protests and volunteering to train to do them is that they are nervous about being vilified on social media, having been identified beforehand. So that is having a chilling effect for police officers and in fact quite often damages their morale.
One of the things we said about the need to modestly reset the balance in the interests of protesters versus the public, and a remark made about decisions made by gold or silver commanders who are the senior police officers commanding the protest, is that they are often nervous about the backlash on social media of any decisions they take. One of the consequences is that there is perhaps a tendency to default to the balance being more in favour of the protester than otherwise. That was my second point.
My third point is that a cautionary tale came out of the inspection we did into the policing of the vigil following the tragic death of Sarah Everard, and the impact of what is frankly a single still photograph that was circulated very quickly and very widely on social media. That created a backlash, and we ended up with some people, and indeed some public bodies and some unions, calling for the resignation of the Met Commissioner. In that report, we said that the reaction was unwarranted. We all know that there is a danger that people get their news and form their opinions from social media. We trawled through hour after hour of police body-worn video of the same incident and came up with a very different view to what social media—completely under- standably—led people to have. I will start with those three points.
Antony Higginbotham
Q
Matt Parr: The Home Secretary asked us to look at five proposals at that stage in November, when she asked me to give an initial impression of five of the proposals going into the Bill. In the end, only four of them went in. We had some reservations, but in general we saw the four proposals—with some caveats, particularly around the fifth one that did not go in—as having the potential to enhance the effectiveness and efficiency of the policing response to protest. If you want to discuss the details of those, we can do that, but in answer to your general question about whether they would assist the police in getting the balance right in the age of social media, I would say probably yes.
Sarah Champion
Q
Jonathan Hall QC: No, I tried to be as comprehensive as I could when carrying out my review of the multi-agency public protection arrangements. I thought long and hard about the additional powers that might be needed, and I am pleased that they are contained in the Bill. I cannot think of anything else. From a detailed, legal perspective I would just say that there are a couple of points of detail about two of the powers, and maybe the Committee will want to question or press on whether further safeguards are needed. I did not draft the powers, of course, and I recommended that they be done generally and they have now been put into statutory language. Overall, I have nothing to add to what is here.
Sarah Champion
Q
Matt Parr: Shall I go first? I am afraid it will be a short answer. We are aware of the issue, and as you may know we do a 43-force inspection of all police forces on a rolling basis. We think that it is a bit early and that we need more time to reach an informed view on the issue, but we will look at it in our next round of inspections.
Jonathan Hall QC: I have a short point to add: I did look at one issue. There are special arrest powers in section 41 of the Terrorism Act 2000, and those powers differ from other arrest powers in that they allow for people to be held for up to 14 days. I did consider whether there should be the power to bail after arrest in section 41 in my first report, but for various practical and technical reasons I thought that was probably wrong. That is the only thinking I have done about that.
Sarah Jones (Croydon Central) (Lab)
Q
Jonathan Hall QC: I thought there were three key points. First, managing the terrorist risk from released offenders involves practitioners from agencies who are not always good at working together. For example, the probation service and MI5 do not have, historically, an easy way of working together.
Secondly, the likelihood of making really good decisions at the right time, which is what matters, would be increased if there was a shared understanding of risk. That involves greater data sharing, and not just secret data sharing—though that is important—but sharing data from all other sources. One of the good things about the Bill is that it resolves an uncertainty about when data can and cannot be shared. It also requires better understanding in all the agencies about what tools exist. Probation has a really fantastic, powerful tool—the ability to recall risky offenders to custody. That is probation’s power—it is not the police’s or MI5’s—and it is important for MI5 to understand that and to make sure that the person making that decision understood the risk. So a comprehensive understanding of each of those powers is important and, as you know, I recommended a couple of extra powers, which are in the Bill.
Thirdly, there is a particular difficulty in practice of managing people who had not been convicted of terrorism offences but who were of terrorist risk when released. Take, for example, someone who went to prison for a very violent offence and became radicalised in prison—they present a terrorist risk on release. It is quite difficult to get them into the structures that exist for managing such a terrorist risk, but the Bill is going to change that to make it easier—[Inaudible.]
Sarah Jones
You froze. You were saying, “to make it easier”.
Jonathan Hall QC: The Bill will make it easier for MAPPA—the management structures of risk—to apply to all terrorist risk offenders. That is not just people who were convicted of terrorism offences but people who are of terrorist risk when they come out of prison.
Sarah Jones
Q
Jonathan Hall QC: I have nothing to say in relation to the power of the police to arrest urgently where there is a breach of licence; that is a really sensible addition. There is a power in clause 159 to apply for a warrant to search the premises of a released offender, and I support that. The point of detail is that it would be possible to apply to a judge for a warrant that would allow you to enter on any number—potentially an infinite number—of occasions. If you think about released terrorist offenders on licence, their licences can last a very long time—for example, 10 or 15 years—so perhaps the Committee may want to think about whether it is appropriate to have a power that would authorise multiple entries into a person’s premises throughout 10 or 15 years. The power of multiple entry under warrant does exist when you are talking about a live operation, and the police find that quite useful. I am not quite sure whether it is justified in the context of this particular risk. That is just one small point of detail, more by way of a safeguard.
Secondly, I recommended and am pleased to see in the Bill a power to search the person of a released terrorist offender. For example, if someone is going to London for the first time, or if a released offender who is very dangerous is going to meet a probation officer for the first time, that would authorise the police to pat them down to make sure they are not carrying something. That is good not only as a deterrent, but as a reassurance. It is reassuring to have that ability, which exists in the context of offenders under civil measures called TPIMs—terrorism prevention and investigation measures.
The only small point is that in the Bill the purpose of searching is
“for purposes connected with protecting members of the public from a risk of terrorism”.
In other statutes, for example the Terrorism Prevention and Investigation Measures Act 2011, the power is to be used for
“ascertaining whether the individual is in possession of anything that could be used to threaten or harm any person.”
When I was thinking about this point, I had in mind patting someone down for a weapon or something of that nature, rather than a personal search to check generally whether they are complying with their licence conditions. Again, that is something that the Committee will probably want to consider—what precisely is the purpose of the search. It may be that the purpose of the search goes a bit wider than is necessary. Those are two relatively small points of detail.
Sarah Jones
Q
Jonathan Hall QC: No, I do not think there is anything in the Bill to address that. The only other bit of the Bill relevant to my area of business is the power to refer an individual who has become dangerous in prison to the Parole Board so that they cease to be someone who is automatically released and can only be released by order of the Parole Board. I think that is sensible. I do not know whether you know that I am doing a review of terrorism in prisons at the moment. The need to be agile and respond to the radicalisation that does sometimes happen in prison is important, so that is to be welcomed. I do not think—unless you can refer me to it—that there is anything that addresses the question of deradicalisation or desistance. I think the truth is that officials will say that it is an ongoing process. I am not saying it will not work with some people, but I would not put all my eggs in that particular basket.
Sarah Jones
Q
Matt Parr: I have got quite a lot of sympathy with what you say. We were very clear in what we said that any reset should be modest. We also said that, because of article 10 and article 11 rights, some degree of disruption is not just an inevitable by-product, it is sometimes the whole point of the exercise of protest, and on that basis, it has to be encouraged. Zero protest is certainly not the aim as we saw it; zero disruption was not the aim either—some degree of it is inevitable. It is just a question of where the balance lies.
I take your point. Some of the things in the Bill we were not asked to comment on. For example, imposing conditions on one-person protests—clause 60 in the Bill —we were not asked to comment on. Some of the specific areas such as access around Parliament—clause 57 and then clause 58 if Parliament moves—we were not asked to comment on, either. There are things that we did not really look at, and therefore I have not got a judge on what effect they might have and what the potential benefit might be.
Perhaps the most contentious would be the third of the proposals that we were asked to look at that widens the range of circumstances in which police can impose conditions on protests: static assemblies or processions. It could be either type. We said that at the moment there are four acid tests. In the disruption one, it was “serious disruption” to the life of the community. As I understand it, the proposal is that that is modified to “significant impact” and so on. Ultimately, these will have to be judged in the courts. It struck me that it clearly aims to set a lower bar. Personally, when I reviewed it, I did not think the bar was necessarily the problem. There is just as much of a problem with educating and training the police officers and making sure they understand how article 10 and 11 rights can be properly tempered. It was a question of training and understanding as much as it was of where the bar was for disruption.
Interestingly—again, I am probably simplifying it a bit too much—there is quite a stark difference between London, which obviously gets a disproportionately large number of protests, and elsewhere. Senior police officers outside London—again, I am generalising—tended to think they had sufficient powers, and senior police officers inside London tended to think that more would be useful. I think that is a reflection of it.
I think yes is the short answer to your question. I think there are dangers and, as ever, the bar for measuring what was significant or what was serious should be a high one. We all recognise that. It should not be done on the flimsiest of pretexts. Again, it would then be open to challenge, and I think police officers would only wish to use it when they were confident.
Alex Cunningham
Q
Jonathan Hall QC: Certainly most of those convicted of terrorism offences will have some sort of Parole Board referral anyway, so automatic release for people convicted of terrorism offences has virtually come to an end. I spoke—
Alex Cunningham
Sorry, can I stop you there? Can you explain the parole role in this, because my understanding was that it would not actually happen?
Jonathan Hall QC: Let us say I get a determinate sentence of eight years for robbery—no, let us say for fraud, a non-violent offence. I will be released automatically after four years. I understand the clause is intended to allow the Secretary of State to ask the Parole Board to look at me to see if I have become a dangerous offender while in prison. Let us imagine I have been radicalised and all the assessments are that I am a dangerous terrorist offender. The Secretary of State could refer that individual to the Parole Board to make a determination that they should now be treated like a violent or a sex offender. In other words, they will not be released automatically at four years, but would have to apply for parole. That is what I understand the clause does.
Alex Cunningham
Q
Jonathan Hall QC: Okay. I have to say that I have not looked at the detail. The Parole Board has a role in deciding whether that person should be released.
Alex Cunningham
Q
“Making release from custody discretionary, and contemplating the possibility that the period in custody could be doubled as a result, is not some minor alteration in the administration of a sentence. It is retrospective sentencing by the executive, a form of internment, circumventing the judicial process and all the protections it confers.”
Do you think the changes to automatic release have any constitutional implications?
Jonathan Hall QC: I will confine myself to talking about terrorist-risk offenders. I do not want to discuss anything outside my remit. If you are talking about people who are sentenced to be automatically released as, for example, Usman Khan was, if in the course of their time in custody it becomes apparent that they are very dangerous, it is appropriate to be able to make their case dependent upon the Parole Board.
As the evidence from the Fishmongers’ Hall inquest has shown, Usman Khan came out with a huge amount of risk, as a result of his behaviour inside. Does that have constitutional implications? The current law is that that sort of change, as you know from the emergency legislation that went through last year, is not contrary to article 7. Does it have big implications for individuals? Yes, it does. It is a decision that would have to be taken very carefully. Does it give rise to the risk of a cliff edge? Yes and no. As you know from the Usman Khan case, they had to be released, and there was no way of changing that.
The point about someone’s release being discretionary is that it is then open to the Parole Board to time their release, and to delay their release if they are not safe enough to be released. Of course, there is always a cliff edge. A person could go to the end of their sentence. The Parole Board could say, “We are not going to release you at all,” and then they would come out automatically. It adds something to put them in the hands of the Parole Board once they have been identified as a risk.
Alex Cunningham
Q
Jonathan Hall QC: It is a really good question. It is a power that will be exercised pretty rarely, I expect. I do not think that you can ask the judge who passed the original sentence to change the sentence. That would be an odd situation, to ask the sentencing judge to reconsider their sentence, on the basis of what happened in prison.
If you think, as I do, that there will be the rare case where you need to delay someone’s release, I cannot see an alternative mechanism, other than putting it in the hands of the Parole Board. You are right that it will disappoint some people, as I think we have discussed in the past. I am slightly concerned about the fact that for some dangerous terrorist offenders—people who have already been identified as dangerous—the role of the Parole Board has now been abolished altogether, because of the Counter-Terrorism and Sentencing Act 2021 that is now in force.
I do not think it is a bad thing to have the Parole Board looking at the small sub-set of individuals who are identified as very risky. In the course of my review into terrorism in prisons, I have seen evidence of individuals who are very risky and potentially becoming riskier because of how they are in prison. It seems right that they should know that, as a result of the risk and what they are doing in prison, their release may have to be delayed.
The Chair
I am going to have to stop you there. I will switch to the Government side and Victoria Atkins.
Victoria Atkins
Q
Jonathan Hall QC: First of all, it means that anyone who is a risky offender—whatever they were put inside for, whether they were sentenced for a terrorist offence or were sentenced for a non-terrorist one but are in fact a risk—can be managed under MAPPA. The law as it stands states that someone must be a risk based on their offending.
To take the example of a fraudster who went to prison and was then dangerously radicalised and became a terrorist risk, their risk would not in fact flow from their offending. Clause 162 cures that, so that anyone who is identified as a terrorist risk may be manged under MAPPA. That is a good thing, because the authorities found it quite hard to deal with that cohort of people.
The other thing that clause 162 does is to make it very clear that people can provide information to MAPPA without having to do what they used to do when I carried out my review, which was to look for information gateways in, for example, the Children Act 1989 or the Crime and Disorder Act 1998, because they did not feel that there was a clear basis for them to share information with MAPPA. As you will understand, the key thing about managing terrorist risk is that all the right information should be receivable. Clause 162 cures that point as well.
Victoria Atkins
In other words, dealing with the reality presented by a very small number of the most dangerous offenders—dealing with that reality, rather than being constrained by the fact that they committed a fraud offence in the past, rather than a terrorist offence.
Jonathan Hall QC: Exactly.
Victoria Atkins
Q
Matt Parr: There were four tests in the law as it stands, one of which is “serious disruption”. Clause 55, I think, changes that to “significant disruption”, among some others. It is a general lowering of the bar.
Victoria Atkins
Q
“serious disruption to the activities of an organisation”,
or,
“serious disruption to the life of the community.”
That is the wording in clause 54 as well. As you will understand, clauses 54 and 55 are about ensuring consistency between moving protest and static protest. We heard from police witnesses this morning that one can flow into the other very easily, and back again.
May I also ask about clause 59? That places the common law offence of public nuisance on the statute book. Does the inspectorate have any views on that, or has it made any recommendations on it previously?
Matt Parr: Not previously, but we did in the report we put out in March. That was one of the five proposals that the Home Secretary asked us to comment on in particular. Our view was that we agreed with what the Law Commission recommended back in 2015, I think. We concluded, for much the same reasons as they did, that that was a sensible thing to do. In summary, we thought that protesters deserve to know where they stand, and that there was no harm in making the rules clearer than they are. It was supporting the Law Commission’s proposal.
Chris Philp
Q
Matt Parr: I am really sorry. I have not looked at that. I cannot give you an answer, I am afraid.
Chris Philp
Q
Let me turn to Jonathan, if I may, going back to clause 108, which Alex Cunningham was asking about. This is in relation to prisoners sentenced for non-terrorist offences who are deemed to become high risk in the course of their sentence. To clarify, is your understanding of the clause the same as mine—that the Secretary of State does not have the power to unilaterally ask for their prolonged incarceration, but instead the Secretary of State simply has a power to refer the prisoner to the Parole Board, which will then make the assessment of dangerousness? It is the Parole Board that makes the decision, not the Secretary of State; the Secretary of State simply refers. Is that your understanding as well?
Jonathan Hall QC: Yes. I have it in front of me. I think the point that Mr Cunningham was making is that it is the Secretary of State who refers it, but you are right: it is the Secretary of State who refers it, but ultimately it is the Parole Board that decides.
Chris Philp
Q
Jonathan Hall QC: Yes, that is right. When the Terrorist Offenders (Restriction of Early Release) Act 2020—the emergency legislation that came in after the attack at Fishmongers’ Hall—transformed people from automatic release prisoners to people who would have to apply to the Parole Board at the two-thirds point, it had an effect on people who are currently serving. That was challenged in the courts by one of the affected prisoners, and the High Court concluded that it was consistent with article 7.
Chris Philp
Q
The final point that Mr Cunningham raised was in relation to the potential for a cliff edge if somebody serves all of their sentence in prison and is not released early. He referred to the possibility of a cliff edge, which exists in various other contexts that you have referred to already. Am I right in saying that if the Government, the security services or the authorities are concerned about the risk that a particular prisoner might pose following release if they were released without licence conditions because they had served all of the sentence, it would be open to the security services, acting through the Secretary of State for the Home Department, to apply for a TPIM if they felt the threshold was met? That would be one option available if they wanted to manage risk, accepting that TPIMs are rarely used.
Jonathan Hall QC: You anticipated what I was going to say. Yes, that is available, but TPIMs are very resource-intensive, and they are very rarely used for that reason.
Alex Cunningham
I misunderstood the line about the role of the Parole Board. I was concerned about what happens beyond the completion of the sentence. As the Minister says, the TPIM is used only in extremely rare circumstances, and it was unclear when that would apply and when it would not apply. Again, my concern is the cliff edge—somebody being released into the community without any licence conditions or further restrictions on their movements.
Chris Philp
Q
The Chair
Hang on a second. I think we are supposed to be taking evidence from our witnesses. Do you want to answer that, Mr Hall?
Jonathan Hall QC: Yes. To continue the thought, where someone reaches the end of their sentence, their sentence cannot be increased—for example, by adding an extra licence period. In a way, it sounds quite a sensible idea that if someone is very dangerous, when they get to the end of their sentence you should just add a licence on administratively, but that would be completely wrong in principle, because the point of a licence is that you can be recalled. If someone was sentenced to 10 years by a judge and got to the end of their sentence, and you then added on a licence period of, say, five years, if they were recalled—quite a few terrorist offenders do end up being recalled—they would end up serving up to 15 years. That would, of course, be wrong in principle.
Sarah Champion
Q
Jonathan Hall QC: I am not trying to avoid it by saying that it is a really good question, but I have not properly absorbed the role of victims in the work that I have done as reviewer of terrorism legislation. One of the difficulties of terrorism is that you are looking more at future risk than at past impact, but obviously, a really bad terrorist attack has the most atrocious consequences for individuals. I am going to slightly dodge it, if I may, by saying that I have not really thought that one through, but I will take it away.
Matt Parr: I do not really have anything to add. It struck me at first glance—it is the first time I have thought about it—as a reasonably attractive idea, but again, I have not really given it a particularly great amount of thought.
The Chair
Are there any further questions? It appears not. In that case, I thank you both very much for your evidence.
Examination of Witnesses
Councillor Nesil Caliskan, David Lloyd and Alison Hernandez gave evidence.
The Chair
Q
Councillor Caliskan: I am Councillor Nesil Caliskan. I am chair of the Local Government Association’s Safer and Stronger Communities Board—[Inaudible].
The Chair
We are having a bit of a sound problem here. Could you repeat that, Councillor Caliskan?
Councillor Caliskan: Thank you, Chair—I hope you can hear me now. I am Councillor Nesil Caliskan. I am chair of the Local Government Association’s Safer and Stronger Communities Board and the leader of Enfield Council.
The Chair
While we straighten out the sound, let us go to Mr Lloyd.
David Lloyd: Hello, I am David Lloyd. I lead on criminal justice for the Association of Police and Crime Commissioners, and I am the recently re-elected Police and Crime Commissioner for Hertfordshire.
Alison Hernandez: I am Alison Hernandez, the national lead for roads policing and safety on behalf of the Association of Police and Crime Commissioners, and I was recently re-elected the Police and Crime Commissioner for Devon, Cornwall and Isles of Scilly. I am here particularly to give the voice of the public on some of the areas in the Bill, and in our role as a scrutineer of policing.
The Chair
Thank you very much. We are trying to straighten things out with Councillor Caliskan’s sound—hopefully we can get that sorted—but we will proceed because of time. I call Ian Levy.
Ian Levy
Q
David Lloyd: I think you make a really good point. Demonstrations are frustrating, especially when they put other people’s livelihoods at risk. Certainly, in Hertfordshire, we had an Extinction Rebellion demonstration that really put free speech at risk by closing down the printing press in Broxbourne, which my friend, the other Chair of the Committee, Sir Charles, will know all about. Certainly, it was difficult to balance the right to demonstrate against the right to free speech.
I think that the strengthening in this Bill is very helpful, although in that specific demonstration the issue was not so much whether the protesters could be arrested, but how they could be arrested, because of the way they had got themselves in some very clever holes so that you could not unpick them. However, I think we really do need to think about the broader population when people are demonstrating, rather than just the rights of the demonstrators.
Alison Hernandez: As you will know, it does not matter which police area the protests occur in; there is a reflection upon police forces nationally from communities thinking, “It is happening where we are, where we live.” There is sheer frustration about some of the disruption that has happened. One of the key factors for us is that it is about being proactive with people who want to run peaceful protests. Our police force in particular has been very good at doing that. As you may be aware, we have the G7 summit coming to us in June in Cornwall, so we are very sensitive, to a heightened extent, about this particular area, and we want to facilitate peaceful protest.
I think these measures in the Bill are needed. Anything that gives the police a tool that ensures public confidence in policing and shows that mob rule does not rule is really important. It really is reflected in public confidence that our police force is on the side of those who are on the right side of the law.
Ian Levy
Thank you. Councillor Caliskan?
Councillor Caliskan: I think it is important to differentiate between protest and the opportunity for the public to come together for things like a vigil. That is obviously—[Inaudible]—the very tragic death of Sarah Everard, for instance.
The Chair
Are you able to bring your face closer to the microphone or bring the microphone closer to your mouth? I think that would help.
Councillor Caliskan: Is that better?
The Chair
Okay, try now.
Councillor Caliskan: And we must also differentiate between a one-day vigil or protest and something that is over a longer period of time. In my experience, from having spoken to council leaders from across the country, the best way that peaceful protest is facilitated is planning in advance. That means the community and organisers having a good relationship with the police, and local forces working closely with local authorities ,so that you know when gatherings will take place, how you can put measures in place to support them to express their views and do so in a safe way. Differentiating between short-term gatherings and long-term gatherings is important.
Sarah Champion
Q
Councillor Caliskan: The first thing to say is that the Local Government Association broadly welcomes the Bill. We recognise its intentions for victims of crime and to support communities. However, there are aspects of the Bill, for instance, the offensive weapon homicide reviews, that I referred to, that lack clarity on the implications for resources, and why they are necessary, given that other reviews take place that could probably cover some of the issues. Reviews take place when you want to learn from an incident. It is unclear what the outcome of an offensive weapon homicide review would be and what learning would be achieved from that.
On the broader point about resources and support, local government have been under incredible pressure in funding youth offending services for several years. We know that youth services have seen a cut in their budgets. Youth offending services primarily have two functions: to stop reoffending, and to stop offending in the first place. The second function is not a statutory responsibility, and it is up to local authorities and partners, such as the police and NHS, to be willing to put in resources to stop offending in the first place. The early intervention and prevention aspect of things will be critical if the intention of the Bill to reduce crime over a long period of time is serious. Alongside the statutory responsibilities that the Bill sets out, the LGA’s view is that it is critical that there are adequate resources to be able to intervene with preventive measures at an earlier stage.
Sarah Champion
Q
Alison Hernandez: There are a few bits in the areas we have been looking at. One area that is particularly of public interest is around the level of offending on our roads from poor driver behaviour generally. There is an absolute appetite from the public—we carried out a survey about 18 months ago on road safety through the Association of Police and Crime Commissioners and over 66,000 people responded. It was absolutely clear that people witness offending behaviour on the roads where they live for about 70% of the time. So there is an appetite for more enforcement and for the fines levels, and that is in the Bill around delivering courses for some of those driver behaviours, which I think is really great. We are interested in seeing another area, which would be a levelling up of the fines for some of those offences. They are all different, whether for speeding, using a mobile phone, or not wearing a seat belt. The fines are all at different levels. Our suggestion is: why don’t you level up the fines, then you also have an opportunity to spend more funding on road safety?
Siobhan Baillie (Stroud) (Con)
Q
I am very interested in this issue and there are two parts to my question. First, do you think that the existing powers under the Criminal Justice and Public Order Act 1994 are sufficient to address the issues that arise from unauthorised encampments for communities that are affected? If not, do you think that this Bill goes some way to fill any gaps that have been identified and raised by a number of different groups?
Separately, regarding local authorities, I think it is little-known that local authorities are actually required to find space for Travellers’ sites, transit sites and authorised encampments. Do you have examples of local authority areas that are doing that alongside communities and the police, and it is working well? And what more can local authorities do?
Siobhan Baillie
Alison Hernandez. Thank you.
Alison Hernandez: There are a few things, actually. Some of the existing arrangements under the legislation that you mentioned are quite strong, but there is a resistance—a nervousness—among police actually to deliver on them, and I think that having a very clear criminal offence makes it a lot easier for the police to act.
At the moment, if you look through the National Police Chiefs’ Council guidance on how to deal with unauthorised encampments, it refers to a number of elements that must be met before the police take some action. This change actually enables the police to make that decision much more easily and more simply, so we really support the change to the way that we are looking at this issue.
I want to be clear that right now, as we speak, I have two unauthorised encampments, one in each county: one in Truro; one in Cranbrook. And these encampments are really affecting our communities’ confidence, by allowing people to break the law and cause damage. Actually, our communities are taking extreme measures to try to stop these unauthorised encampments from happening. This is not about being against people who have an alternative lifestyle; having such a lifestyle is absolutely fine. But when they impact on the communities’ amenity and actually cost the community money to clear up and solve issues, this offence helps to make it really clear that we do not want to see that situation in our communities.
I will just add that the sort of extreme measures that I have witnessed here in my area of Devon and Cornwall include a local council spending £18,500 on metal gates with locks to stop people from accessing pieces of land, which people have still broken into and accessed. The council have now built a concrete wall to stop those people, but it is also stopping local communities from using that land, too, because the council do not want to spend more money to clear up the land afterwards. So there is a challenge about sites—absolutely—for local authorities to consider, but I think this offence makes it clear for policing that there needs to be action.
Councillor Caliskan: The issue is experienced by local authorities up and down the country to different extents. I think it is true to say that there is disruption and that it can cost local authorities resources and funds. It is also true to say that across the country our Gypsy and Traveller communities are badly served in terms of sites that are allocated through planning policy, and it does not help when local plans take a number of years to agree things for them. So, even when there is a clear commitment to find additional sites, it can take years to identify those sites in planning policy. It is partly a planning policy issue and it is partly, I think, a lack of commitment to be able to find adequate space for our Traveller communities.
However, I have to say that the best example of existing local government being able to accommodate Traveller communities is when local authorities proactively build relationships, and while the Bill clearly sets out a way forward to be able to deal with the issues from an enforcement perspective, that is only a part of the picture. The LGA’s view would be that alongside that there needs to be a genuine commitment to accommodate communities, to have adequate spaces and to support those communities in additional things that they might need, such as health provision. Over the past year, there have been good examples of local authorities appointing community liaison individuals just for Traveller communities to be vaccinated, for instance. It costs local authorities resources, but there is a bigger picture that has to be considered.
David Lloyd: I think first of all we have got to start to look at how we can work together across the public sector, and I do not think that we are good enough at that. Very often, the first thing that happens is that the police are called to move on rather than thinking about what the issue is in the first place. Certainly, when I was first elected to a local council back in 1992, we had issues with Travellers and unauthorised encampments. If we had started then with a policy of ensuring that every single borough and district council had sufficient provision for those who may pass through, so that then, when there were unauthorised encampments, they could be moved on to those places, I do not think that anyone would feel that there was a problem in doing that. The issue is when there is no other place reasonable for them to go that is within close proximity. I do not think the duty of the districts and boroughs in two-tier areas and local councils in other areas is enforced sufficiently.
We always have to think about what it is that victims of all crimes and members of the public think most of all. One of the things that concerns people most of all is when there is an encampment—very often, it happens around a bank holiday weekend—and it seems that nothing can be done. I think that the strengthening powers within this will be helpful but that does not, in the long term, help with the real problem, which is: is there sufficient provision? We have got to do something alongside that.
In this discussion, along with the earlier question where Sarah Champion asked “What about budgets?”, we have to find a better way in local government—and I am proudly a part of local government as a police and crime commissioner—to share all of our budgets and we have to find a better way to plan together. Because one of the problems is that the issue of unauthorised encampment is always pushed to someone else as their problem, rather than any one of us picking it up as our problem. We have got to find a way through that.
Allan Dorans (Ayr, Carrick and Cumnock) (SNP)
The Bill introduces offensive weapons homicide reviews. What do you see as a rationale for holding only reviews where offensive weapons are involved? Why is the focus on this type of weapon and is there not a danger that those who have lost loved ones to other causes or other methods will feel that their loss is less valuable than others? That is to anyone who wishes to answer that. I think we will start with Councillor Caliskan, please. [Interruption.]
The Chair
I think we have lost you again, councillor. Shall we go to someone else while we see if we can sort this out?
Allan Dorans
Mr Lloyd?
David Lloyd: My understanding of the Bill—you will understand it better than me, probably—is that it does not get rid of other homicide reviews. Of course, the one that probably you and all of us are familiar with is the domestic homicide review, which is always very helpful, and we all learn a great deal across all agencies around that when that happens. I think this builds on that and that is reasonable.
One of the areas of focus at the moment is around serious violence. I think it not unreasonable, therefore, that we take a little bit more time and we have a little bit more evidence around what has gone wrong. I am a real believer in evidence-based policing, and we have to look at that really closely. I am very much in favour of that. It is going to be, remember, an 18-month pilot. If that brings about initiatives to prevent homicides and protect communities, I think that is a very good idea.
The Chair
Let us try Councillor Caliskan again.
Councillor Caliskan: Hopefully you can hear me now. I agree with what David said about the pilots, and it will be interesting to see the outcomes. The direct comparison is to domestic violence homicide reviews, where there can be very clear learning; and being able to learn, as a system of multiple agencies, where you might have been able to intervene earlier to stop something helps us to reduce crime in the future.
The issue with offensive weapons homicide reviews is that the evidence shows that somebody with an offensive weapon may not necessarily know their victim. You can take knife crime, for example, and compare it with domestic violence. In most cases of domestic violence, the victim and the perpetrator would know each other; that is not necessarily the case—in fact, most often is not the case—when it comes to knife crime.
I think it will be interesting to see the outcome of the pilots, but we have to be careful that we are not just creating additional burdens on agencies and that we have clear criteria and pathways for learning. Also, who will be the owner of the outcomes? Who will be responsible for being able to implement some of those lessons learned? I think that level of detail is probably missing from the Bill, so I wait to see the outcome of the pilots.
Alison Hernandez: One of the challenges around domestic homicide reviews is the lengthy delay from, obviously, when the incident happened to when the review is completed. Often, the challenge we have is that people have moved on and some of the corporate learning from it is not actually kept well within the organisation. So I think that that accountability around this trial would be really helpful, to be clear. There are opportunities around things like local criminal justice boards and there are opportunities through police and crime commissioners of actually holding on to this as part of something that we have to report on. So I think it would be good to look at that accountability to make sure it does not become a paper exercise and is not really utilised in decision making.
Bambos Charalambous
Q
Councillor Caliskan: The burden of finding alternative accommodation is really about the fact that you are competing. You are competing because you may have victims of domestic violence that the local authority also needs to find accommodation for. So it is about limited resources. It does happen already: they will be rare occasions, but there may be examples where a young person needs to be relocated because they may have been involved in county lines or gang activity. But it is not simple and it is not just about relocating that individual—
The Chair
Councillor, I am very sorry to interrupt you. Is it possible to bring the mouthpiece closer to your mouth? We are really struggling to hear you.
Councillor Caliskan: How is that? Is that better? I will hold it.
The Chair
Let us try.
Councillor Caliskan: Hopefully you can hear me a bit clearer. The other point I was going to make is that it is not as simple as just relocating an individual. It is often a family that you have to relocate, and there are additional processes associated with that. Examples of issues are employment for the parents and the tenure of accommodation. If they own their own property, relocating them becomes more complicated. The picture is complicated, as you might expect. This is possible; local authorities do do it, but it takes multi-agency working and it requires a real bespoke approach depending on the individual and the family that you are trying to support.
Bambos Charalambous
Do Alison or David have any insights? I imagine not, but if they do I am happy to hear from them.
David Lloyd: All I would add—I am sure Members will be very much familiar with this—is that probably the vast majority of our criminals are under the age of 25 and a huge number of them are under 18. In Hertfordshire a couple of years ago, three quarters of our murders—we have very few—were committed by people under the age of 18. So in many ways we need to get how people are being remanded right. There are greater rights that children would rightly expect and have, but that does not mean to say that some of our most serious criminals are not children. Getting that balance right is difficult.
Councillor Caliskan: If I might add, there are good examples throughout the country where youth offender services are intervening at an early stage that not only supports individuals not to reoffend but provides a family approach, supporting siblings who may be at risk of being involved in criminal behaviour. That early intervention makes a real difference, so as local government we would look to see how such public health approach-led practice could be rolled out more consistently across the country.
The Chair
Commissioner Hernandez, do you have anything you want to add?
Alison Hernandez: Just one point in relation to youth remand. The challenge in helping young people and getting that right is the gap between arrest and conviction. With the courts backlog there is at the moment, that can be a long gap, and one of the challenges is that sometimes you cannot work with that young person until they get to the point of conviction. I just wanted to flag that up, but that is more about charge to conviction than remand and awaiting.
Mr Goodwill
Q
David Lloyd: I feared that you were going to say that. I am not convinced that anything can easily be done. Clearly, on private land, there is a planning process, but it is private land, and that is difficult. I think you are talking specifically about where someone has purchased land and invited people in, and they may well have inappropriately developed that land so that there is a site built there. It is very difficult to know how to deal with that. I certainly have not got the answer. You may well have an answer among you, but how you get the planning process to discriminate, if you like, in a positive way against that which is clearly not right and for that which is right will be difficult.
Sarah Jones
Q
David Lloyd: Can I come in first on that and perhaps also bring in another bit? One of my concerns about the Bill is that it does not go far enough; in fact, it does not really mention how we might use police and crime commissioners more. My concern has always been very much about trying to be at the centre of the criminal justice system and how we bring that together with someone who is a focus for that on a local basis.
One of the benefits of police and crime commissioners has been their ability to bring different parts of the criminal justice system together, along with local authorities, so that we can better ensure that we reduce violence and crime, that the lessons are properly learned and that we put support for victims and perpetrators in the right place. I think it is perfectly reasonable to establish the situation as we are doing it, but we need to go further. One tends never to talk about what is not in a Bill, but the big thing this misses, as far as I am concerned, is how you put PCCs at the very heart of the criminal justice system.
Frankly, with extra duties falling to police, more people will be arrested, and they will end up in a queue going to court which is getting ever longer. Until you have got someone who is able to break through that long queue to get to court, none of this will really work. That is a crisis that we need to solve, and I think we have a solution in trying to give more power to police and crime commissioners. That might be a discussion for another day, but it is something we really need to focus on.
Councillor Caliskan: I think the LGA would highlight that a prevention-first approach is a long-term, sustainable approach to deal with crime in our communities. We absolutely support collaboration and a multi-agency working approach, because it works. The evidence demonstrates that it works, and the best and most successful outcomes demonstrate that. Take the violence reduction units, for example; there are very good examples of that.
There are not violence reduction units everywhere, so there is this inconsistency. They were, as I understand it, first established based on the areas where there were high levels of knife crime. Now, whether that should be the criteria going forward is a matter for debate, but I would emphasise again that the long-term statutory responsibility is suitable and that the multi-agency approach is properly resourced to be able to deliver those early interventions.
The community safety partnerships are really welcome as well. Again, there are some good examples of them. I guess that the benefit of community safety partnerships is that local communities can decide what the issues are. That gives communities agency, and it allows different organisations to come together to have ownership of the problem.
We at the LGA would ask for there to be more consistency. For that, we should see violence reduction units extended and offered in more areas, and there should be a more sustainable funding model. If we are serious about seeing a reduction in crime, we have to have models that move away from just one-off grant funding or one-year grant funding, to five-year periods of funding, so that there can be long-term projects.
Alison Hernandez: If I may say, I get a bit frustrated with the conversation about funding, because it is not all about having funding from the Government. I absolutely applaud the serious violence duty. One of the challenges that we all recognise is that, generally, society is getting more violent. This isn’t, “Who has got the most violence in their area?” We have a general societal problem, which every area needs to be looking at, focusing on and tackling.
In Devon and Cornwall, we are not one of the areas that received the violence reduction unit funding, so the chief constable and I have come together in a partnership to establish a serious violence prevention programme. We are funding that through council tax payers’ funding, because we believe that it is fundamentally important that we make this a priority. So you can do it yourselves if you think it is important. The serious violence duty will help people to see that this must be prioritised to be tackled. We want to do prevention; we do not want to deal with the things in the Bill that are just about enforcement and the hard end of it. We are able to look at that early intervention and prevention.
Many Members will have heard of things such as Operation Encompass, which is throughout the country in all 43 police forces, to try to help children who are at the receiving end of domestic abuse. In that sort of thing, we are trying to help children as young as possible, to break that cycle of violence. We fundamentally know that domestic abuse is one of the key issues that, if not tackled at a young age, leads to more violence in later life. I am an absolute supporter of the serious violence duty. We have things within our own powers, as commissioners with our local authorities, to set the priorities to tackle that.
Sarah Jones
Q
Councillor Caliskan: I think you are right. There is no point talking about just enforcement if you want to see community cohesion. Enforcement alone does not allow for Gypsies and Traveller communities to have their place in our community when they want it. It is the nature of their protected characteristics.
What needs to happen? There was a question mark over the efficiency of—[Inaudible]—policy. There has to be a commitment from local authorities that those sites are allocated. The statutory legislation that already exists for these protected characteristics needs to be taken seriously. We should be meeting the obligations that are already set in statute, which says that we should have adequate sites for these communities, but we just do not.
I would like to give parliamentarians some reassurance that the LGA absolutely takes tackling crime seriously. That is why councils up and down the country fund multi-agency working. We take it really seriously—it is a priority, because residents tell us that they want to be safe. We also recognise that crime is a symptom of what is often a complicated socioeconomic issue. If we want to collectively be serious about tackling crime, we have to tackle it at every stage, which means talking about prevention and—[Inaudible.]
Victoria Atkins
Q
Alison Hernandez: I want to be really clear what we are all talking about. We are not talking about all Gypsies and Travellers.
Victoria Atkins
Exactly.
Alison Hernandez: We are not talking about the travelling community. We are talking about a minority of people. I have examples in Exeter city where the local authority created a very nice site so that we could admit them quicker from where they were. It had everything that they needed and the facilities that they wanted, and it was in a nice, secluded spot. When the police went in to evict them, they decided not to go to that site that was available to them. They wanted to go to the next game that they wanted to play. Let’s be really clear about this: we are talking about a minority of people who do not want to abide by the law of this country. I believe we need this offence to support our communities and to send a very strong message: you do not do this type of behaviour.
I mentioned the £18,500 metal fencing created at Drumbridges roundabout to stop them accessing that land. They broke into that land. I have communities who will tell me that they have spotters who go ahead to break open the gates, so they will use the excuse that the gates were already open. All these sorts of things are happening. I have asked about CCTV—can we put it on the main sites where we have these things happening? It cannot be done, because of human rights—because it is where someone is living. Every place you turn to as a community to try to solve this problem is not available.
For me, harms are being caused. On Dartmoor alone, when they had an unauthorised encampment, it became absolutely huge. When these things get so huge, no one can move them on, because the amount of resource required to do so is immense. The bailiffs were going to cost £50,000 a day, and they would still need police back-up in order to do it. The cost is absolutely huge. There is something about sending a message through this Bill which tells the public that we are on their side and that we do not support people who do not want to abide by the law.
David Lloyd: I entirely agree with that. In Welwyn Garden City, we have a person who has almost been driven to the verge of bankruptcy because there was an unauthorised encampment which decided, at the same time, to take on industrial-level fly-tipping. It would cost about £150,000 to move those materials. That originally happened 18 months or two years ago. It is still there among all the woodland.
These people are at the end of their tether. The cost is not just monetary. I have people calling me who really are frightened because they have had large numbers of people on their own land and they feel intimidated and personally threatened. We need to do something about it. Much of it is about sending a message.
While I recognise that it is not helped, as I said earlier, by the fact that local authorities do not provide sufficient spots for Travellers to move on to—I recognise that is something we need to do—we also need to send a message that these people can be moved on if they are in an unauthorised place. We need to send that message out again, as Alison has said far more ably than me, so that the public recognise that we are on their side and we are on the side of the underdog.
Councillor Caliskan: All I would add is that I recognise that there are strongly held views, and we have councils who articulate exactly what colleagues on this panel have spoken about. It can be a huge cost to a local authority.
The best way to deal with these issues is through a collaborative approach, not just through agencies in a particular area, but also with the communities themselves who may be occupying the space. Something has got to give at some point, and an obvious solution is trying to identify space. Local authorities absolutely do not want to be encouraging criminality and disruption, not least because it costs a lot of money, but we could be going round and round in circles unless we find a long-term solution. I recognise that the Bill is an attempt to do that. All I would say is that in order for there to be a collaborative approach, alongside that there needs to be an approach that is about dialogue with communities, too. I do not think that contradicts anything that other panel members have said.
Victoria Atkins
Just to assist the Committee, clause 61 focuses on the conditions whereby this offence can be committed. The phrases “significant damage”, “significant disruption” and “significant distress” appear to cover the descriptions given by Commissioner Hernandez and Commissioner Lloyd.
On the serious violence duty, where the Government are requiring local agencies to work together to draw together plans to tackle serious violence in their local areas, I am happy to reassure Commissioner Lloyd that clause 13 very much views police and crime commissioners and mayors with policing powers as having a convening role in that. What value do you think will be gained in your local areas from requiring these organisations—vital as they are, in their many ways, in tackling the serious violence that we hope to prevent—to get around a table and work together with schools and educational establishments, in particular, to ensure that we prevent serious violence?
The Chair
Very briefly, please, because we are almost out of time.
David Lloyd: Things that are asked for specifically and are required of us get done. This measure strengthens what many of us are already putting into our own police and crime plans. It is always better to place a duty on us, because that ensures that it gets done. We really do need to ensure that the scourge of serious violence is reduced. There are many parts of the country—thankfully not Hertfordshire—where this is out of control, and this measure will help.
The Chair
Order. We will stop, because we are out of time. I am sorry, Councillor Caliskan, but we have a very tight schedule today. I thank the witnesses for their evidence, and I thank Councillor Caliskan for persevering with some of the sound problems.
Examination of Witnesses
Adam Wagner and Marc Willers QC gave evidence.
The Chair
Q
Marc Willers QC: Good afternoon. My name is Marc Willers. I am a QC barrister practising at Garden Court Chambers.
Adam Wagner: Good afternoon. I am Adam Wagner, a barrister practising at Doughty Street Chambers.
Sarah Champion
Q
Adam Wagner: I will leave the Gypsy and Traveller aspect to Marc. From a protest perspective, what worries me about the Bill is that it decouples the public order element from the Public Order Act 1986. It makes that Act do things that it was not designed to do—to protect public order by effectively giving the police powers to impose directions on any protest that is very noisy, which is any protest.
In terms of discrimination, I regularly act for clients who protest—not for any particular thing; I act for clients who protest all sorts of things. My concern is that the police and potentially the Government will end up cherry-picking the kinds of protest that they consider to be valuable and the kinds that they consider to be problematic. That will ultimately be a political decision, not one based on public order. Ultimately, it does not matter whether it is a left-wing Government or a right-wing Government—they will have the ability to discriminate against groups that they do not agree with.
Marc Willers QC: You might have guessed that I am going to indicate that the Bill, particularly part 4, discriminates against Romani Gypsies and Irish Travellers, two ethnic minority groups with a traditional way of life, an integral part of which is living in caravans, and which also involves nomadism. The Bill will criminalise trespass at a time when many of those who resort to and reside on unauthorised encampments have nowhere else to go, the reason that being site provision, an elderly but enormous elephant in the room, has not been addressed since 1960, when the Government and Parliament of the day introduced the Caravan Sites and Control of Development Act 1960, which closed the commons.
A statutory duty was introduced in 1968 by Lord Eric Avebury, but that duty was subsequently repealed in 1994. I am afraid that the encouragement of private site provision has failed abysmally, and we still have a cohort of Romani Gypsies, Irish Travellers and, indeed, new travellers who do not have a lawful stopping place. Criminalising trespass and giving greater powers, which the police have roundly suggested they do not need, to occupiers of land for the police to enforce really puts another nail in the coffin of nomadism and makes such people’s lives extremely difficult. The disproportionate impact on Gypsies and Travellers is there for all to see.
Sarah Champion
Q
Adam Wagner: It widens the test for being able to impose conditions on a protest to encompass pretty much any protest that is noisy enough to cause intimidation, to harass, or to cause
“serious unease, alarm or distress”
or “serious disruption”. If you are a protest organiser, you will know that that could apply to any protest. You have to appreciate that the current section 12 of the Public Order Act 1986 allows for conditions only when a protest causes
“serious public disorder, serious damage to property or serious disruption to the life of the community.”
That is already pretty wide.
By making it about noise, you are effectively saying to the organiser that any protest could be caught by that description, so they will have to rely on the good will of the police and the Home Secretary, because the Home Secretary will have a regulation-making power not only to define any of the new terms that I have expressed, but to give examples. Organisers will have to rely on the police and the Home Secretary to decide that their protest is not worth putting conditions on. From a protester perspective, that puts you entirely in the hands of the police and the Home Secretary. That very problematic for somebody organising a protest, because a lot of people will think it is just not worth it, particularly when they are representing an unpopular cause or one that they consider to be controversial. Those are precisely the protests that are the most important, and the most important to protect.
Sarah Champion
Q
Adam Wagner: No; I have not, I am afraid.
The Chair
Is there anything you wanted to add, Mr Willers?
Marc Willers QC: Much the same can be said about proposed new section 60C of the Criminal Justice and Public Order Act 1994, in terms of its language. It seems to me that a lot of the language used is vague and uncertain. There is a reference to causing “significant distress” as one of the conditions that could lead to the criminalisation of an individual who refuses to leave a piece of land. That, in itself, brings inherent problems, because a private citizen could very easily invoke the power and leave a police officer with a fait accompli—in other words, they have no option but to arrest an individual who refuses to leave land in circumstances where the occupier says, “I am being caused significant distress by the very fact that this individual is parking on land that I occupy.”
That distress can be engendered or underpinned by the prejudice that Gypsies and Travellers face in our society today. It is a widespread and long-standing prejudice, dating back to the first time that Romani Gypsies came to these shores in the 1500s. I am afraid that it is fuelled by mainstream media and politicians. It is instilled in the minds of many members of the public, and it is bound to play a part. There may well be unwarranted and unjustified concerns on the part of the occupier, which could lead to the criminalisation of an individual who has nowhere else to go.
Mr Goodwill
Q
Marc Willers QC: It might be better for Mr Wagner to deal with that issue, given that I am dealing with part 4.
Adam Wagner: This is a recommendation by the Law Commission, as I am sure you are aware. My concern about codification is that it becomes a statutory tool in the armoury that might not previously have been used. I appreciate that the Law Commission recommended it. It does have benefits in terms of clarity and making the definition of public nuisance a statutory one, rather than coming out of common law and arguably being subject to not being clear.
I do worry that once it becomes a potential tool in the box, it will be used more. From the perspective of protest, and protecting the right to protest and freedom of assembly, it is just another tool in the armoury of public authorities to limit protest. Both Mr Willers and I deal with cases involving private injunctions against protesters and, in Mr Willers’ case, Gypsy and Traveller communities. You can see this proliferation in the courts of the use of any kind of method that will allow private companies and public authorities to restrict what is generally non-violent activity that does not cause much, if any, public order issue. You can see that being used. My concern is that it adds another potential bar to an already quite extensive collection of bars to public protest.
Marc Willers QC: I echo what Mr Wagner had to say. In the context of unauthorised encampments, there has been what has been described by the Court of Appeal—Lord Justice Coulson—as a feeding frenzy, in a case involving Bromley’s application for a wide injunction, effectively creating a no-go zone in Bromley, where Gypsies and Travellers would not be able to camp. That has been replicated up and down the country, in what has been described, as I said, as a feeding frenzy of litigation.
The Court of Appeal, in that context, concluded that the creation of such no-go zones offended the Equality Act 2010, the European convention on human rights and the protection of the right to respect for the traditional way of life of Gypsies and Travellers, and the enshrined right to roam. To bring it back to unauthorised encampments, in part 4 of the Bill the Government appear to be creating the no-go zones that the Court of Appeal has said in another context would fundamentally breach the rights that I have identified.
Mr Goodwill
Q
Marc Willers QC: The problem with part 4—it is speculation as to whether or not definitions will become crystallised in litigation—is that most Gypsies and Travellers will have left the site and be unable to challenge the decision by a police officer to arrest them, given the scenario that would play out under, for example, proposed new section 60C of the 1994 Act. A Gypsy or Traveller parking on a piece of land with their family, perhaps on the way down to Kent from somewhere up north, is not going to hang around when threatened with the seizure of their vehicle to argue that they should be entitled to remain on the land. Even if they did, they would probably not get legal aid with which to challenge the application of the section and their prosecution. In those circumstances, we are probably unlikely to see much, if any, judicial consideration of the vague terms in part 4.
Adam Wagner: If I may, I will add that
“serious unease, alarm or distress”
is not new to the law. You see that wording in the definition of criminal harassment and in other places. My concern is more about width than about clarity. I have dealt with numerous cases involving over-wide injunctions. There is quite a lot of case law about clarity versus width, and the point is that once this language is in the law relating to noise, it will be obvious to the courts that it is a very wide provision indeed and will rely to quite a large extent on the decision making of the police officers.
For example, if a protest decided to be completely silent, it would be difficult for the police to say that that protest was going to cause enough noise to cause serious unease. I imagine that the next Extinction Rebellion protest we see will be completely silent after this. But in seriousness, I think the court will just see that as very wide. What you have really got here is nothing to do with public order; it is about nuisance. It is about criminalising a certain kind of nuisance arising from what should be a protected activity—exercising political speech rights, under articles 10 and 11 of the European convention.
Sarah Jones
Q
Marc, it was put to us earlier that this is not about discrimination or attacking Gypsies or Travellers. It is about people who are engaged in significant criminal damage in places where they should not be. It would be helpful to have your response to that charge—Adam first.
Adam Wagner: I hear that. I will just quote Lord Justice Laws, who said:
“Rights worth having are unruly things. Demonstrations and protests are liable to be a nuisance. They are liable to be inconvenient and tiresome, or at least perceived as such by others who are out of sympathy with them.”
Protest has not changed; protest has always been a pain, a nuisance and liable to be inconvenient and tiresome. What has changed is that we have a Government who do not like certain protests—although that in itself has not changed either.
Extinction Rebellion is no different from any widespread protest movement—the civil rights movement in the 1960s, the environmental movement previously—but what is different is that it has managed to attract hundreds of thousands of people to its cause and is making real inroads on the public consciousness. That in itself is not a justification effectively to give the police powers to ban or impose conditions on any protest or, even more troublingly from my perspective, to give the Home Secretary—whose role is only to protect public order, not to protect particular opinions or to impose her, his or the Government’s opinion on any particular group—powers in effect to give examples of protests that she considers to be noisy, the ones that this legislation is targeting. You are getting yourself into a situation not where the public is better served, but where this essential part of democracy is going to be reduced down and chilled.
Sarah Jones
Thank you. Marc?
Marc Willers QC: The first thing to say is that those who are committing significant criminal damage can be prosecuted using existing legislation. If they are committing antisocial behaviour, existing legislation is in place. Indeed, the police made that point in their responses to the consultation on these proposed measures, and did so in spades. The response from the vast majority of the police forces was, “We do not need additional powers”, or, “We do need the existing powers under the Criminal Justice and Public Order Act 1994 to be strengthened.”
I have no hesitation in saying, fund the police properly and ensure that they prosecute those who commit criminal offences, whether they be Romany Gypsies, Irish Travellers or members of the settled population—everyone should be treated in the eyes of the law—but part 4 and the proposed provisions do not just affect those who are committing significant criminal damage; they affect each and every Gypsy and Traveller who is exercising their right, enshrined in our convention and under the European convention of human rights, to nomadism, to roam. We should not force them into a position in which they are only lawfully exercising that right when actually on the road—a road to nowhere.
The provision not only will force them into that situation, in which they are literally only within the law when they are moving along the road, but will give police the power to seize their homes, should they fall foul of the provisions. Should they camp on a piece of land and be asked to leave by an occupier who is prejudiced against them and would not want them to be there out of fear that they might commit some behaviour instilled in the mind by prejudice against Gypsies and Travellers, then as I said, it is a fait accompli for the police who are called in. They will have to arrest and almost certainly seize the caravans, that being the home. The individual and family might end up being destitute.
This is all at a time when there is insufficient transit and permanent sites for Gypsies and Travellers to live on. The proposed legislation ignores the rather elderly and enormous elephant in the room—the lack of site provision. That lack of site provision has continued unabated since the 1960s, as I said, when the commons were first closed.
Victoria Atkins
Q
Adam Wagner: Yes, of course.
Victoria Atkins
Q
Adam Wagner: I think I would be neutral on that. It is a very wide piece of legislation. Every time I read it, I am pretty surprised at how wide it is already. What I am pretty clear about is that section 12 does not need to be widened.
Victoria Atkins
Q
Adam Wagner: Well, potentially. The proof is often in the pudding. It depends on how the police use it and whether they are using it effectively. I have read the report from Her Majesty’s Inspectorate of Constabulary and Fire and Rescue Services. I speak to a lot of police, and my experience is that they know they have a wide suite of powers when it comes to protest. What they struggle with, if you look at what has happened over the covid regulations, is deciding when to use them and what is proportionate. These are very difficult policing situations, and they are not necessarily solved by imposing widespread conditions that may lead to legal challenges, which may be successful. Successful policing of protests ultimately comes down to working with the protesters and civil society—hearts and minds stuff from the police. You saw that with the Sarah Everard vigil, and you see that with Extinction Rebellion and Black Lives Matter. I do not think you can really enforce your way out of some of the disruption caused by protest. It is really about allowing voices to be heard and being careful.
Victoria Atkins
Q
Adam Wagner: Well, in part. The Public Order Act was used quite extensively over the course of the Extinction Rebellion protests, and Black Lives Matter was under the covid regulations last summer. That was the power that was used, and those are much more extensive. The covid regulations are far too extensive. We saw there the problems when the police are given too much power, because then they have to make what are not really public order decisions but substantive political decisions about which protests they do and do not allow. That is the danger. I do not think it is a right-wing or left-wing issue; any Government should be worried about protests being limited by political decisions, rather than public order decisions.
Victoria Atkins
Q
Adam Wagner: I think the objective test would assist the courts; I do not think it would assist police officers. Anything that limits these powers is better than not, but I just think the powers themselves are too wide for the reasons I have set out. I do not think that helps anything. From a policing perspective, applying all those tests is not going to be easy anyway. Really, this is about the width of the powers overall as a package, rather than the reasonable firmness test or anything like that.
Victoria Atkins
Q
Marc Willers QC: I do not think it would just be related to private lands—
Victoria Atkins
I accept that. There are provisions on common lands as well—you are quite right.
The Chair
I think we had better let Mr Willers answer as we are going to run completely out of time.
Marc Willers QC: It covers private and public land, and common land, and you are right that the conditions are “significant damage”, “significant disruption” and “significant distress”. My comments earlier were about the fact that significant damage and disruption can be covered by other legislation. The “significant distress” point was one I made in the context of the fact that the occupier may have their own impression of “significant distress”, or may suffer significant distress because of an inherent prejudice towards Gypsies and Travellers.
The Chair
I am really sorry Minister, but we are going to have to stop there because we are out of time allotted for this session. I thank you both for your evidence.
Examination of witness
Stephanie Roberts-Bibby gave evidence.
The Chair
I now call Stephanie Roberts-Bibby, acting CEO of the Youth Justice Board. Once again, we are down to 30 minutes, so we have to be tight—we have until 5.15 pm for this session. Stephanie, would you introduce yourself for the record, please?
Stephanie Roberts-Bibby: Good afternoon, everyone. My name is Stephanie Roberts-Bibby, and I am the interim chief executive officer for the Youth Justice Board. It is great to be here today to give evidence to you.
The Chair
I see that you are on an iPhone. Could I possibly ask you to flip it round so that you are in landscape?
Stephanie Roberts-Bibby: Is that better for you, Chair?
Bambos Charalambous
Q
Stephanie Roberts-Bibby: Absolutely. We would say that children who commit offences as children should be sentenced as children, and that, where possible, the court should take into account the age and maturity of the child at the time of the offence. I know that HMCTS has been working tirelessly—particularly at the moment with the covid pandemic—to make sure that children’s cases are held promptly and before their 18th birthdays.
Bambos Charalambous
Q
Stephanie Roberts-Bibby: We strongly believe that when the offence was committed as a child, that should be reflected in the length of the sentence, so they should be sentenced accordingly. We appreciate the logic for some of the tapering proposed in the Bill, but we feel that it fails to recognise that all children, who were under 18 at the time of the offence, had a distinct set of rights and vulnerabilities, and that the nature and length of time with which children and young people’s development takes place needs to be reflected. Indeed, evidence points firmly to brain development continuing up until the age of 25.
Siobhan Baillie
Q
Stephanie Roberts-Bibby: We wholeheartedly support the introduction of secure schools. We very much welcome the Government’s proposal to open the first secure school at Medway and we look forward to a further secure school as part of the Government’s commitment to an alternative to secure accommodation for children. We have been working closely with Oasis, which was announced as the provider of the first secure school. It is a very strong academy trust and will offer a different operating model from the secure environments that currently exist. While there is some great practice that takes place across the secure estate, we know from the data about the outcomes for children who have been in the current secure estate that those outcomes are poor and that further offending continues.
Siobhan Baillie
Q
Stephanie Roberts-Bibby: It is a concern that the market, as you would describe it, for providing a secure estate is quite limited. We would want to try to stimulate that market, to get the full range of providers that will be able to meet children’s needs. I think there is something about really understanding the complexity of children in the secure estate. These children are extremely vulnerable and, as a result, their behaviours can then be deemed as being extremely risky and posing a risk to others.
Our only concern about the delivery of the secure school is that link, at the moment, to the academy sector, particularly for children entering the youth justice system who have quite often been involved in practices whereby they have been off-rolled. For instance, we note the high levels—the prevalence—of exclusion of children. For example, we know from HMIP data that 89% of children at Feltham in 2018 had been excluded from school. We would be really keen to seek an assurance through the tendering process that academy trusts that are selected to open or run a secure school have the full range of skills, expertise, structures and ethos to support children to change in a secure setting.
Siobhan Baillie
Q
Stephanie Roberts-Bibby: Youth offending teams are critical in early intervention and prevention with children who may be on the cusp of offending. There are a whole range of sentencing options available, but before that point there are out-of-court disposals, which means that children can be engaged in a range of activities, interventions and indeed supervision that would help them to address their needs.
Regarding the latter, I think there is really something about us all committing to understand children’s development, some of the social and economic environments in which children are living, and some of the deprivation and the structural barriers that children in our communities are experiencing, particularly children from black and minority ethnic backgrounds, who we know are disproportionately represented across the youth justice system. So there are a range of options available from youth offending teams.
One of the challenges that we hear about from the sector is its capacity to work upstream. Often, that is a result of funding, although this year the youth offending teams have had an additional uplift in their grant to help with some of the challenges that they are currently experiencing.
Siobhan Baillie
Very tiny. I have a number of youth groups in my patch, as no doubt all MPs have, that are trusted by youngsters and that have been there and built the relationships. How do the Youth Justice Board and youth offending teams work with the grassroots youth organisations?
Stephanie Roberts-Bibby: If I start with our role as the Youth Justice Board, we work really closely with the voluntary and third-sector community. We have a regular stakeholder forum, where we come together with all of the voluntary sector to hear their voices and concerns, so that we can have effective oversight of the youth justice system.
At grassroots level, which you referred to with youth offending teams, local authorities can subcontract or co-commission services to the voluntary sector, although again we know that in latter years some of those organisations have not necessarily been able to sustain themselves. However, those services are really critical to understanding the context in which children are living: the services they need, and the services that are able to get alongside children and help them. We also have a youth-affiliated network in which we hear from children and hear their voices. They are often the go-to services when children are in crisis, are feeling vulnerable, or do not know what to do.
Alex Cunningham
Q
“In this Chapter—
“adult” means a person aged 16 or over”.
Given the wealth of evidence on maturity, do you think that the section and other provisions of the Bill that address sentencing 16 and 17-year-olds are appropriate?
Stephanie Roberts-Bibby: I go back to my original answer in which we are clear that the age in law for children is up to 18. We absolutely promote a child-first youth justice system which means that children up to the age of 18 should get treated as children, as they are in law. The evidence base in the debate about maturity strongly suggests that brain development continues until the age of 25, and indeed some evidence shows that it may extend to 28 for males in particular. We would absolutely continue to champion the idea that children should be sentenced as children until their 18th birthday.
Alex Cunningham
Q
“There is no evidence that the threat of harsher custodial sentences deters children from offending, no evidence that contributes towards rehabilitation or promoting long-term positive outcomes. Meanwhile, there is abundant evidence that imprisonment is extremely harmful to children and disrupts their healthy long-term development.”
How do you think the changes to youth sentencing proposed in the Bill will impact reoffending rates?
Stephanie Roberts-Bibby: A number of changes are presented, and I want to pick out some of those. We are broadly supportive of the proposals relating to youth rehabilitation orders. We are supportive of anything that prevents children from being drawn further into the youth justice system. That would include offering them greater support in the community, and making sure that they get their needs addressed. There is no evidence to show that punishment changes behaviour. What we know changes behaviour is pro-social identity, and giving children a positive image of themselves where they can build on their strengths, and aspire to contribute to our society and our economy. We are very clear that we would not want to see the Bill result in more children being pulled into the youth justice system, and indeed we would want to see children continuing to be referred into the services that rightly should be there to meet their needs and prevent them from offending, as we have seen in the last 20 years since the youth justice system was established.
Alex Cunningham
Q
Stephanie Roberts-Bibby: We really support the proposals and changes to remand. I will start with that point, if that is okay. We welcome the proposal that there be a statutory duty for the court to consider the child’s welfare and best interests when applying the prospect of custody test. We know that at the moment only a third of children in custody on remand go on to get a custodial sentence, which raises the issue of why so many children are being remanded in the first place. So we very much support the proposals around remand.
We particularly support the changes that would say that only a recent and significant history of a breach, or offending while on bail, would result in custodial remand. We recommend that those definitions be tightened or specified. We would recommend that “recent” refer to a six-week period, and “significant” refer to a situation where there is a potential to cause serious harm or injury. We are very supportive of measures that would reduce the number of children being drawn into the system, particularly into custody, so we support the recommendations around remand, but those measures in isolation will not reduce the number of children in custody. There still needs to be work in the community around appropriate accommodation for children, with holistic services that meet their needs. At the moment, there is a misalignment between the priorities of the criminal courts and available community provision for children’s social care accommodation.
We also think there is limited time to build an appropriate bail package. As we all know, there is more to do, although there is ongoing work around vulnerable children and reducing the likelihood of their being exploited.
We very much welcome the changes to the detention training orders, but some of them could result in an increase in the number of children in custody. It might be helpful if I talk through each of those changes. I am conscious of the time and that I am talking very fast, but I think those changes are quite significant. We welcome the fact that there will be more flexibility with their sentences, rather than the rigidity that we have now. However, there is a challenge that the fixed lengths mean that children may miss out on the opportunity to be enrolled in school, for training or for an apprenticeship.
We have some concerns that the findings of the impact assessment that the Government completed may mean that individuals making an early guilty plea may end up with longer sentences than they currently receive. While there would be no additional children’s sentence to detention training orders under this option, that would increase the capacity at any given point of the number of children in the secure estate. We have estimated that to be a potential 30 to 50 places, costing £5.3 million to £8.5 million per year.
Alex Cunningham
Q
Stephanie Roberts-Bibby: We would suggest that some of the changes may further disproportionately disadvantage black and mixed heritage boys—that is indicated in the impact assessment that is currently being completed. We would be very keen to work on some mitigating actions that might prevent those unintended consequences disproportionately affecting those children further.
Chris Philp
Q
Stephanie Roberts-Bibby: We would see the benefits very much related to the skills, experience and expertise that multi-academy trusts could bring into a secure school setting. As you may know, the secure estate is split into three different sections: secure training centres, secure children’s homes and young offenders institutions. The custodial element of those organisations is very strong and probably strongest in the YOIs and the STCs. The introduction of a very different model that accounts for children’s needs will not mean that they will not be secure; it will mean that they have a focus on education, mental health, and a trauma-informed approach to working with children who have complex needs, which is very much needed.
Chris Philp
Q
Stephanie Roberts-Bibby: Gosh. We could probably provide you with a significant amount of evidence on that and I would very much welcome the opportunity to do that in writing to the Committee.
We would suggest coming from the perspective of the child first and using the evidence base that has been developed recently, which focuses on children, their personal and social identity and their strengths, rather than being deficit-based. The evidence, which equally applies to adults, is that if you look for good and build on good, much more is achieved than if you tell people that they are no use and no good and cannot contribute to society.
We know that with children, the earlier we intervene, the better—early intervention and prevention, and targeting services upstream. That is a challenge for youth offending teams at the moment. They have statutory caseloads and trying to balance intervening earlier is really difficult. Some local authorities manage to do that better than others. There is a massive evidence base and we can share the evidence after the Committee today.
Chris Philp
Q
Stephanie Roberts-Bibby: We have been working really closely with the Ministry of Justice on the remand review. We are very keen to understand the data better and to have a look at the trends across the country. One of the things we would really welcome as, dare I say, an amendment to the Bill is for there to be a decision why bail is and is not granted. There is still a lack of evidence on what needs to change for more children to remain in the community, and we want to avoid perpetuating cycles of evidence.
You asked about what more we could do around the remand review. There is certainly something more we could do around trying to knit the system together better, through our heads of regions constantly having discussions with the sector around remand. We are doing quite a lot of work at the moment on developing alternative models for accommodation. We are working across London. We are investing in a pathfinder project to try to develop a different model for children, to prevent them being taken into the secure estate on remand.
Chris Philp
I think that covers everything I wanted to ask. Thank you for the work you are doing.
The Chair
If you do wish to furnish the Committee with further written evidence to support your comments, that would be most welcome. I think Mr Cunningham had a further question.
Alex Cunningham
Q
Stephanie Roberts-Bibby: As I understand it, the inspection framework for a secure school will be Ofsted, quite rightly, because it is a secure school rather than a prison. Of course, there is a role that HMIP might play in helping to share and disseminate best practice. As is the case when Ofsted does an inspection in the secure estate, HMIP is part of that broader inspection team. There is a role for it to share best practice as it sees and finds it.
Alex Cunningham
Q
Stephanie Roberts-Bibby: Some of the principal challenges come from the fact that services for children sit across everyone’s responsibility but no one’s responsibility. There is absolutely something about us continuing to reach out across the Government. We very much see joining services up as some of the leadership space that we are in and will continue to be in, so that children who are vulnerable to offending are seen and are not slipping through the gaps in service provision.
The Chair
If there are no further questions, I thank you very much for your evidence today.
Examination of Witness
Derek Sweeting QC gave evidence.
The Chair
Q
Derek Sweeting QC: I am Derek Sweeting QC, chair of the Bar Council of England and Wales.
Mr Goodwill
Q
Derek Sweeting QC: Two questions there. Would we support them? Yes, because open justice is a really important objective within the justice system. Will they work? There are obvious problems with managing hearings that are accessible over the internet, particularly in an age of social media when people know how to record things and take photographs and video online—that sort of thing. I think there are issues with how you police open justice and ensure that proceedings have the seriousness and gravity that they should have and that you do not get an abuse, particularly on social media, of the facility to be able to see things from afar. But generally I think it is a move in the right direction.
Mr Goodwill
Q
Derek Sweeting QC: Yes. I think at the moment there are already dangers around jurors doing things that they should not through the internet and social media. They are given a very specific warning and written information about what they can and cannot do while they are serving on a jury. I think all of this must be considered with a lot of care. There are bits of court proceedings that I think should not be directly under the gaze of the camera and so on. So there is a lot of room for working out what the protocols are and how things work best.
On the general point, there is plainly a risk that we will have more occasions on which there could be potential contempts of court, but I do not think we can go backwards; we just have to manage these things as we have done with every technological step forward that impacts on the justice system.
Mr Goodwill
Q
Derek Sweeting QC: Well, barristers never do that, of course. I think we are a long way off the American sort of proceedings that we sometimes see. That is perhaps slightly unfair to many American attorneys, who conduct their business with a lot of decorum, even under the gaze of the camera.
Mr Goodwill
Thank you. That was slightly tongue in cheek, although we do occasionally have barristers appearing at the Dispatch Box and I would not comment on their performance.
Bambos Charalambous
Q
Derek Sweeting QC: I think the first part of the question is: what technology have we got in place at the moment?
When the pandemic struck, and once we got back in particular to jury trials in the Crown court, we did see the roll-out of CVP—Cloud Video Platform—which very few of us knew was under development at the time. That was vital to allowing work to resume in many jurisdictions. We have also got a new system on the way, so the technology is improving all the time.
The second part of the question is really about how satisfactory is remote participation by the witness or others in court proceedings, and I think it really prompts the question, if we can do it, whether we should. That is the point—that fact that we can is not really a reason for necessarily doing it. I think it is absolutely clear that proceedings in future will probably involve a hybrid, with some witnesses attending remotely where that is appropriate. That has to be judicially managed. I think for some hearings it is pretty clear that everything could be done remotely, particularly administrative hearings. But in hearings that are serious in their nature because they will result in the final disposition of a case and so on, there is a much greater argument for ensuring that all of the participants and all of the evidence start on the basis that if evidence can be given in person, it should be. Thought should then be given to what is unnecessary to have in person and what could be dealt with remotely.
It is an area where we are finding our way. The Bar Council has just issued a statement with the Bars of the Republic of Ireland, Northern Ireland, Scotland, and of course England and Wales, which I represent, which actually makes that point. It says that there are many aspects of a remote hearing that are not satisfactory, in the sense that they are not as good as having everybody in the room—the old model, where you get two teams together with a referee and you have an adversarial contest. But that model anyway is something that we need to think about as we go forward.
There is plainly a use for more remote, but I think the profession would like some guidance as to what the parameters are for when we should be remote, what the starting position is and when it is appropriate, and only appropriate, to be in person.
Siobhan Baillie
Q
Derek Sweeting QC: The two types of conduct that you have just described are in themselves likely to be criminal offences, so there is nothing new about that. Has protest changed in its nature? I think we have certainly heard some evidence that, particularly with social media, the way in which protests can be arranged makes it much more difficult for them to be managed. I think there is some public concern about that. The measures contained in the Bill, particularly in relation to noise levels and serious disruption to and impact on persons in the vicinity, raise a legitimate question about whether it goes a bit too far, particularly in relation to what “significant” means and who has to take that decision on the ground. You ask whether things have changed, and I think you might look at this and say that almost every suffragette protest would have been caught by the proposed legislation.
Siobhan Baillie
Q
Derek Sweeting QC: I think it is a sensible measure. We welcome the fact that we have got a statutory maximum of 10 years. It was a Law Commission recommendation—clause 59 is what we are talking about. I think the only thing I would inject into the conversation around this is that the Law Commission report itself actually includes a defence of reasonableness, and that defence applies particularly to cases where the conduct is in an exercise of an article 10 or article 11 right to freedom of assembly or freedom of expression. Effectively, you might say that the Government seek to criminalise, on the basis of what the Law Commission’s report addressed, acts that the Law Commission itself thought would be caught by a reasonableness defence in relation to public protest and the exercise of important rights of freedom of expression or freedom of assembly.
Alex Cunningham
Q
Derek Sweeting QC: I think it changes things, rather than adds, doesn’t it? In relation to memorials, we will now find ourselves in the Crown court rather than the magistrates court. It is important to acknowledge that approaching the issue of damage to memorials only on the basis of value, for example, really underplays the quite significant sentiment that attaches to particular memorials and ought to be recognised. However, magistrates already have the power to imprison in relation to the existing offences that would apply. It seems a little unnecessary, I would have thought, to say that all these offences need to be covered by an offence that means they have to be dealt with in the Crown court, with all the extra cost and time that that would entail, particularly in a jurisdiction that already suffers from a significant backlog.
Alex Cunningham
Q
Derek Sweeting QC: I wonder whether the sledgehammer is being used for a nut here. I think you have to reflect public concern about attacks on memorials, but this may just flip the problem from something that perhaps does not provide enough in the way of sentencing options to a much more onerous and ponderous procedure to deal with something that can involve, for example, removing flowers from a memorial, which you would not have thought would be something that could not be dealt with by magistrates. One would anticipate a range of sentencing options within the summary jurisdiction and perhaps in the Crown court as well, but not the need to go off to the Crown court for all these offences.
Alex Cunningham
Q
Derek Sweeting QC: The answer is that we are probably likely to see longer sentences and more of them. I hope that does not sound too pessimistic, but that is the overall effect that you are asking me about. That is probably what we will see if the sentencing reforms are carried into effect, because to some extent they limit judicial discretion and extend the role of mandatory sentencing.
Alex Cunningham
Q
Derek Sweeting QC: You are adjusting the release point within a sentence that has already been passed by the court. I think there is an argument that it might make things more complex, but on the face of it, it seems to me to be something that may actually provide a little clarity within the existing sentencing regime.
Alex Cunningham
Q
Derek Sweeting QC: Which one are you referring to?
Alex Cunningham
The provision about the changes to automatic release and referral to the Parole Board.
Derek Sweeting QC: I am not sure that we have commented on that, actually.
Alex Cunningham
Q
Derek Sweeting QC: The concerns around that are really that it is sensible to try to reduce the complexity of this area—I think the ambition is to reduce down to two—but I think the attachment of conditions to both of the cautions that are left, as a requirement, is not necessarily helpful. It would be useful to have something that was a more general tool that the police could use, that would not turn up in criminal records later on and so on, and that would give the police the option effectively just to give what is now the simple caution.
Alex Cunningham
Q
Derek Sweeting QC: Yes. I think we have drawn attention to the fact that those are not in the Bill, so it would be sensible, we would have thought, to try to do that and to be a bit more ambitious around the youth justice points in the Bill.
Alex Cunningham
Q
Derek Sweeting QC: We do welcome, certainly, the British Sign Language proposal in the Bill. I think that, if anything, we were slightly surprised that there was not some consultation around it. There are jurisdictions in which this is a development and there is some learning about it; there is some practice as well. It involves, generally, two signers, so there is obviously a resource impact as well. This is not just about the interpretation of evidence; someone would go into the jury room when the jury retired. That is likely to require some additional training of signers, because it is a different role from just interpreting. Those are the sorts of things that we think might well have been covered by some consultation.
In fact, in a way, the opportunity was lost, by not consulting, to consider whether there are other categories of disability for which reasonable adjustments and accommodations might be made to enable people to serve on a jury, because it is an important civic duty and the wider the range of citizens who can undertake that duty, the better. So it is the right direction of travel, but we think the arrangements around it will obviously need some thought, some investment and some training for signers, and actually there might have been an opportunity to think a little larger about who else might benefit from similar adjustments or adjustments that are specific to their needs.
Alex Cunningham
Q
Derek Sweeting QC: I hope it is not the case; I think it is once in a lifetime, as far as I am concerned. If I did not make the position clearer earlier, that was because we were really dealing with the general question of remote participation. I think, in the case of remote juries, that is an area where we do have significant concerns, and I think we would oppose the measure that is proposed in the Bill. The reason for that I think you have touched on already: this is not a measure that has been needed over the course of the present pandemic. It is said, I think, to be effectively a just-in-case measure, an emergency measure, but it is wholly unclear what the circumstances would be in which the measure would be required or executed—put into effect. So I think we do have concerns about that.
Fundamentally altering the character of a jury trial by, as the Lord Chief put it, having the jury as spectators rather than participants, which is certainly the view he was expressing about what the impact of remote juries would be—changing it in that way is a very significant change to a very important part of our justice system, a bit of the justice system that really has public confidence, and that we know from the research really recognises diversity and does not produce outcomes that are unfair. I think we need to be very careful and cautious about making significant changes. I think, if we are going to have a measure, it should not be a measure on which we say, “Oh well, there might be a need for it at some point.” If the point arises, it would be much better to consider itin the circumstances of any future emergency, if it occurs. We certainly would not like to see remote juries deployed outside of emergency conditions. There does not seem to be any reason to do that. There is no research about that and no evaluation of the effect on outcomes of having a remote jury. Even in Scotland, where it has been trialled during the pandemic, with much larger juries of 15, it is yet to be evaluated.
We would suggest that it ought to be approached with a lot of caution. It is not a measure that is needed; we can wait until it is needed. Equally, as I think is acknowledged, the technology is only barely there. Again, we ought to wait until the technology can be factored into the mix to consider whether it is a good idea.
Alex Cunningham
Q
Derek Sweeting QC: Those who are vulnerable; young defendants and those who may find it difficult to follow proceedings if they are held remotely, who may need particular access to their counsel, which is much more difficult if you are dealing with things remotely. There is a raft of problems that you may encounter when you physically separate the defendant from the trial process.
Alex Cunningham
Q
Derek Sweeting QC: In the end, it will have to be managed judicially. I am not sure that we need to hem in the exercise of discretion in relation to that. There are already provisions in relation to what the judge must take into account when considering whether there should be remote participation. They are very difficult to apply to juries, by the way, but if they are followed, we will find that they involve a significant number of safeguards for the fair conduct of proceedings.
Victoria Atkins
Q
Derek Sweeting QC: Yes, I think my point was really about the suggestion that the statutory offence—these are the words—is to cover the same conduct as the existing common law offence of public nuisance but, yes, you are right that there is an offence of that sort in there.
Chris Philp
Q
Derek Sweeting QC: Two questions. Is it more convenient? Certainly, during the pandemic it has been important to have a method of holding hearings when we have to socially distance. Under the circumstances of the pandemic, it was vital. Remote hearings have enabled the family jurisdiction in particular to keep on working from the word go—it never stopped. Using technology in those circumstances in remote hearings was extremely helpful. It was certainly convenient during the pandemic.
Is it convenient for everyone? During the pandemic itself, we had some opposing views. Counsel certainly found it convenient, but one or two participants in family proceedings publicly said that they felt detachment from the proceeding. We have to recognise that there are reasons for being cautious about making the assumption that if it is convenient for legal professionals and judges, it is also necessarily a good experience for users. Certainly, there are whole categories of users for whom, if they cannot get to court or if they have mobility problems, the ability to have a hearing remotely is going to be valuable. Of course, we have been in a big laboratory, and we have tested a lot of these things in a way that we that we would not have been able to do in the decades before the pandemic. We need to take forward the best of remote and carry on using it.
Are there disadvantages? Yes, I think there are. There are experiences that we have all heard about, which are salutary and should make us be cautious about just assuming that we can always do things as well if we are doing them remotely.
Chris Philp
Q
Derek Sweeting QC: I am not sure that is right. The point that I was making is that the proposed amendment is to the mode of trial for a limited class of offences of criminal damage. That is the effect of the amendment. It removes the power for an offence involving a memorial to be tried in the magistrates court, however small the value of any damage. That was the point I was making earlier. I was really being asked whether that is a proportionate measure, and the point I was making is that there are some offences involving memorials where one would have thought that the magistrates’ powers are perfectly adequate, and it is not proportionate to require that matter to go to the Crown court.
Chris Philp
Q
Derek Sweeting QC: Well, there might be, but equally there might be cases where it is wholly unnecessary to go to the Crown court. Since the definition of “memorial” extends to moveable items, removing a bunch of flowers from a memorial amounts to the offence. It is difficult to see why that merits a trip to the Crown court. It is well within the magistrate’s existing sentencing.
Chris Philp
Q
Derek Sweeting QC: My understanding that a mode of trial change is being contemplated under part 2.
Chris Philp
Q
Derek Sweeting QC: There are obviously circumstances in which minimum sentences can be used. It is a matter for Parliament. You have to reflect on public disquiet and the need to make sure there is a sentencing regime that reflects the seriousness of offences. The general position is that if you have minimum mandatory sentences, you inevitably tie the hands of the judge to some extent. If you carry on extending that, you are making potentially significant inroads into judicial discretion. The lesson of sentencing is that cases generally need individual sentences because there are very complex differences between them. You were just making the point about judges having discretion to sentence according to the gravity and nature of the crime.
The Chair
Does anyone else have any further questions? I cannot see anyone. In that case, Mr Sweeting, thank you very much for your evidence to the Committee. I thank all witnesses who gave evidence today to the Committee. That brings us to the end of our oral evidence session for today. The Committee will meet again on Thursday to take further evidence. We will meet in this room at 11.30 am.
Ordered, That further consideration be now adjourned. —(Tom Pursglove.)