Victims’ and Offenders’ Rights

Tuesday 9th May 2023 Westminster Hall

17:58

[Valerie Vaz (Walsall South) (Lab)]

I beg to move,

That the House has considered victims’ and offenders’ rights in the criminal justice system.

It is a pleasure to serve with you as Chair, Mr Pritchard, and to open this debate. I thank Mr Speaker for granting it.

Mr Pritchard, I am sure you will know that every once in a while a case comes along that captures the reason we go into politics: to right a wrong that grabs our sense of justice—that makes us want to strive with all our might and use every single tool we have to ensure that justice is done. It might start with a case, but that case can go to the heart of the misapplication of Government policy, flawed decision making and the possible misapplication of the Human Rights Act, which in this case has left the victim/survivor with fewer rights and in a worse position than the offender. Highlighting case studies is always useful because policies can be changed as a result, and I hope there will be a review not just of the case I will discuss but of how Government policy is applied.

I will briefly set out the background. It was 26 June 2014. A young BAME woman who worked in a public-facing role in the public sector was trying to help a person get into work. It was the second time she had seen the person. She called him over, and as soon as he came to her desk he pulled her by the hair and stabbed her with an eight-inch knife. She said,

“I was covered in blood, hysterical losing consciousness until the police and ambulance were called; started to lose my sight and hearing; I thought I was dying.”

She was then taken to hospital, where she was in theatre for over two hours. She had 22 stitches in her neck and was told the wounds were 2 mm from her main artery. She also had three operations on her hand.

Added to the situation, there was a delay in the criminal justice system. It was reported that the police used to pick up the offender for being drunk and disorderly because he wanted food and shelter, which he would get from the police or in the cells. When he first came to this country, he had a septic abscess removed from his stomach, but later wanted to sue the hospital because he thought staff had removed his kidney; they had not, but he engaged solicitors to make a claim against the hospital.

The criminal justice system held the first hearing in the woman’s case on 2 October 2014. The offender did not enter a plea and wanted a medical assessment. On 14 November, the same thing happened: a psychiatrist asked for more time. On 12 December, no plea was entered and the hearing was adjourned until 6 February 2015. That date was moved to 20 January, when he entered a plea of not guilty. The trial was set for April, but the judge was so incensed by the delay that he brought it forward to the end of January, and there was a three-day hearing in which the victim gave evidence. The offender entered a plea of not guilty, but after a very short time the jury found him guilty of attempted murder. He showed no remorse and was sentenced to an indefinite hospital order, but despite the fact that the judge made an order on 15 May 2015 authorising the offender’s detention in hospital and restricting his discharge without limit of time, he was conditionally discharged by the mental health tribunal; worse—he would not be recalled even if he broke the conditions, because he had not come from prison.

I will briefly set out the offender’s immigration status. In 2004, he claimed asylum. It was refused. The appeal was allowed and he was recognised as a refugee in 2008. In April 2013, he was granted indefinite leave to remain. I have raised this case on a number of occasions with a series of Ministers, who have reaffirmed the Government’s policy that it is a stated objective to protect the public by removing foreign nationals who have committed criminal offences. In a letter to me, one Minister said that

“all restricted patients who are also foreign nationals must be considered for deportation before their restrictions are lifted.”

In 2018, the right hon. Member for Romsey and Southampton North (Caroline Nokes)—the then Minister, who I thank for all her help—met me, the survivor and the survivor’s family. She took proactive steps to look at ways to deport the offender, and wrote to us saying that he was being considered for deportation.

According to gov.uk,

“Government policy is to pursue deportation on grounds of criminality where the person…has been convicted in the UK or overseas of an offence which has caused serious harm”

I am sure you will agree, Mr Pritchard, that attempted murder is a serious harm. There is a prima facie case for deportation, so it is not clear why the letter of the right hon. Member for Romsey and Southampton North has not been followed. Remember—the victim was born and raised here and worked in the public sector, helping people—no matter who they were. One would have thought that she, too, has rights. But the trial was delayed, and, as the victim said, the offender was given access to a psychiatrist, benefits and a place to stay, while she had post-traumatic stress disorder and struggled to access support. In fact, she said that she had to pay for that support herself.

The latest letter from the Immigration Minister rubs salt in the wounds, as he says that the offender has rights under article 3 of the Human Rights Act, on the prohibition of torture or inhuman or degrading treatment —and that human rights here will affect human rights in other countries. I am sure there is case law in this regard, but we obviously do not have time to go into it. The letter set out no reasons, so it is difficult to see how the Minister came to that conclusion, which would mean that under Government policy no one can ever be deported anywhere, even to a third country. Is that the Government’s policy? In the case that I have mentioned, the offender cannot be deported to his original country because it is in flux, but the Home Office has never answered the question of whether we are the third country. So far this case has not followed Government policy. The offender has more rights than the victim under the Human Rights Act. Can the Minister tell us whether she has rights under article 2—the right to life, which is also an absolute right? The former Minister, the right hon. Member for Romsey and Southampton North, said that she would speak to the United Nations High Commissioner for Refugees so as to remove the offender’s status.

Effectively, the Government are saying that the offender, who has tried to remove someone’s right to life under article 2, will gain article 3 rights. Do the Government have a policy for foreign national offenders who have committed a serious offence such as attempted murder? Can they be deported under current Government policy? Are an offender’s rights under article 3 greater than those of a victim under article 2? Is the threshold for engaging article 3 so low that no other decision, under any other legislation or Government policy, can be given in this case? I hope, in the interests of justice, that there are grounds for review or, indeed, for ministerial discretion.

We have an offender who is free to move around and a victim who lives in fear. The offender currently has more rights than the victim. I know that ministerial responses can vary, but I consider the latest decision to be flawed. Will the Minister look at this case and at the implications of Government policy and of competing rights under articles 2 and 3? The Government may have to review their policy and say that no one can ever be deported because they have article 3 rights, even if those rights have not been engaged and alternative approaches could be taken. For instance, someone who has committed an offence could be deported to the first or second country.

There must be a way for justice to prevail in this case. The courts have decided on the case, but why do the Government consider the victim and her rights to be secondary to those of the offender? The victim—a survivor of attempted murder—is crying out for justice.

18:07

[The Minister of State, Ministry of Justice (Edward Argar)]

It is a pleasure to serve under your chairmanship, Mr Pritchard. I am grateful to the right hon. Member for Walsall South (Valerie Vaz) for securing this debate and for flagging some of the key issues yesterday. Although many of the issues she raises fall within Home Office policy areas and are not matters on which I have any authority, I will endeavour to answer as much as I can. If I am unable to do so, I undertake to ensure that the relevant Home Office Minister is given a copy of the transcript of the debate, with the right hon. Lady’s comments on the latest response she has received from the Immigration Minister highlighted, and asked to address any outstanding points in correspondence with her. I will, however, endeavour to address as many of her points as possible.

Let me begin by saying that, as the right hon. Lady has alluded to, behind every crime is a real person who has suffered harm, a real person picking up the pieces and living with the trauma of having survived that crime. We must always keep that in mind in our response to victims of crime. To quote the strategy that I brought forward as a Parliamentary Under-Secretary of State for Justice in 2018:

“The message from victims is clear: they want to be treated fairly, properly and with dignity. They want clear, timely and accurate information. They want the opportunity and the support to make their voice heard”

and their rights upheld. That is reflected in what the right hon. Lady has said about her constituent.

I believe that this Government have a strong track record on victims’ rights. The Government have fulfilled their commitment to introduce the Victims and Prisoners Bill. I do not wish to tempt fate, but I suspect that the right hon. Lady may well take advantage of the opportunities to debate it. If she is not on the Bill Committee, I suspect that she may well raise her points on Second Reading and Report. The Bill will enshrine the principles of the victims code in law, and require key criminal justice agencies to promote awareness of the code. That will send a clear signal about what victims can, and should, expect from the criminal justice system.

The right hon. Lady raised an important set of points centring on the specific, horrific and deeply saddening case of one of her constituents. I am grateful to her for sharing some of the background, and I offer my deepest sympathies. Although I cannot comment on the detail of that specific case, I will try to address some of her broader underlying points. As I said, I commit to ensuring that Home Office Ministers respond to any points to which I am unable to respond.

I will try to set out in broad terms the Government’s stance on foreign national offenders, the protection of human rights and mental health considerations to set the context for how some of these decisions are made. As the right hon. Lady said, the British public rightly expect that we put the rights of law-abiding citizens who are victims of crime above those of criminals. We are clear that foreign criminals should be deported from the UK wherever it is legal and possible to do so. As such, the removal of FNOs—if she will allow me to use the acronym—is a Government priority, with 13,000 deported between 2019 and 2022. My Department continues to work closely with the Home Office to increase that number.

Any foreign national who is convicted of a crime and given a prison sentence is considered for deportation at the earliest opportunity. FNOs can be removed from the UK via three main routes before the end of their prison sentence. Prisoner transfer agreements enable prisoners to be repatriated during their prison sentence, and they continue to serve that sentence in their home country. We have over 80 agreements in place with other countries. They also operate to bring British national offenders back to the UK. The early removal scheme and the tariff-expired removal scheme allow for FNOs to be removed before the end of their sentence, subject to a minimum time served. They are subsequently barred from re-entering the UK, and we are clear that any illicit entry will see them returned to prison.

Ideally, we would look to negotiate PTAs with all countries to allow all FNOs to serve their sentences in their home country. However, both the negotiation of new agreements and individual transfers require the agreement of the receiving country, and, as such, an appropriate and functioning Government with which to engage. That means it is not possible in all circumstances.

We are prioritising countries with the highest volume of FNOs. Our new PTA with Albania entered into force in May 2022, and we are working closely with the Albanian Government to speed up the removal of Albanian offenders, freeing up space in our prisons and reducing costs to the British taxpayer. In addition, we are looking to negotiate new prisoner transfer agreements with key EU member states and wider-world countries. We signed a new protocol to the Council of Europe convention on the transfer of sentenced persons in October 2021 to widen the scope of transferring prisoners without their consent.

We are now going further to ensure that FNOs cannot frustrate their removal process. Last year, under the Nationality and Borders Act 2022, we expanded the early removal scheme to allow foreign national offenders to be removed up to 12 months before the earliest release point of their sentence, instead of 9 months. Their sentences will be paused following their removal and reactivated if they ever return. We also introduced the priority removal notice, giving those liable a cut-off date by which they must inform the Home Office of any additional grounds for their protection and human rights claims to remain in the UK, with evidence. The Act also allows for disqualification from the receipt of a recovery and reflection period available to victims of modern slavery, for any FNO who receives a custodial sentence of 12 months or more.

We are using the Home Office’s Illegal Migration Bill, which is currently passing through the House of Lords, to take further action. The Bill proposes that the disqualification from protection for modern slavery victims applies to all FNOs who receive a custodial sentence of any length, and it requires the Home Secretary to declare as inadmissible asylum or human rights claims from countries designated as safe states. From what the right hon. Lady has said, I understand that many of those factors would not apply in the case of her constituent, but it is important to set out the context. My understanding is that the Home Office’s policy of transferring asylum seekers to Rwanda—a designated third country—is not applicable to FNOs in this context.

I will turn to some of the human rights considerations that the right hon. Lady alluded to. The Government are committed to protecting and respecting human rights and the rule of law at home and abroad. The UK is a state party to the European convention on human rights, and is responsible for securing for everyone within its jurisdiction the rights set out in it. I will turn to articles 2 and 3, as far as I can, in moment. However, the deportation policy is subject to several exceptions, including where it would be deemed a breach of a person’s rights under the ECHR or the UK’s international obligations under the refugee convention. Individuals can be returned to their country of origin only when the Home Office and, where applicable, the court deem it safe to do so. When someone is removed from the UK, although certain rights, such as article 8, are qualified and can be balanced against the rights of others in the public interest, such as the rights of the victims, some rights are absolute under the ECHR and the HRA, which sits behind it, and cannot be limited or balanced in such a way.

In line with our international obligations, under article 3 of the ECHR, which is an absolute right, the UK Government cannot legally remove any person to a country where they are found to be at serious risk of torture or inhumane or degrading treatment. The right hon. Lady will have to forgive me for not being able to give her a definitive answer to what constitutes a third country or a third party in that context. I will ask that Ministers in the Home Office respond to that detailed legal point, and I hope that they will do so expeditiously.

Articles 2 and 3 rights are absolute rights that, in this case, can be deemed to be potentially contradictory. My understanding is that the victim—the right hon. Lady’s constituent—has article 2 rights, as we all do, in this context. In the deportation case, the question would have been focused on the article 3 rights of the FNO because the deportation case relates to the foreign national offender. Legally, that is what would have had to be considered. As I said, the article 3 right is an absolute right, and because that individual was the focus of the deportation, and therefore the party to the deportation, that right in that case becomes the absolute right. It is not the victim who is the subject of the deportation proceedings; it is the FNO. If I recall correctly, the right hon. Lady has a legal background, so she will understand the complexities of that. It may—how shall I put it?—sit uncomfortably with her, but in that case, legally it would have to be matters relevant to the FNO that are relevant to the decision.

The right hon. Lady touched on mental health issues and how the Mental Health Act 1983 works in this context. It is important to note what must be taken into consideration when a person is detained in hospital, rather than prison. I understand from what she said that that is directly relevant to this very unfortunate case. Under the Mental Health Act, a court can make a hospital order as an alternative to a prison sentence if it considers that it is necessary to do so to protect the public from serious harm. The decision to discharge will be made only after the consideration of detailed evidence from clinicians, social supervisors, the MOJ, nursing staff and any other parties that will have a direct interest in the management of the patient in the future, and only if it is believed that the patient no longer requires treatment in hospital for their mental condition, and that they do not pose a risk to the public that cannot safely be managed in the community.

Although those protections are of course necessary for any decent country, we remain committed to protecting the rights of victims of crime. The Human Rights Act 1998, which was a significant achievement of the previous Labour Government—I am always willing to acknowledge where these things have been done—incorporates into UK law rights drawn from the ECHR that protect the rights of victims of crime in the UK.

The victims code—a statutory code of practice—includes an entitlement to be referred to services that support victims. Although it is not appropriate to deal with that on the Floor of this Chamber, that is within the MOJ’s responsibilities, so if the right hon. Lady wants to speak or write to me about her constituent’s experience of not getting the support they needed, I am happy to look that separately. The MOJ provides police and crime commissioners with annual grant funding to commission local practical, emotional and therapeutic support services for victims of all crime types.

The issues discussed today are of incredible import, and we have a strong focus on and proven record of putting victims at the heart of the criminal justice system. We do, however, remain bound by international law, where some of those rights and absolute rights may appear contradictory or in conflict with one another. There will always be complex and difficult cases where those two commitments meet.

In respect of the services that the constituent of the right hon. Member for Walsall did or did not receive, I am happy to pick that up with her separately to understand what happened. I appreciate that it does not change what happened, but it will enable me to look into it and hopefully to address some of those concerns. In respect of her point about a third country and the UK’s status in that context, that will be for the Home Office but I will ask that it addresses the point specifically, rather than generally, if it is able to. As I say, I have set out the broad context for the article 2 versus article 3 rights and why it would be the article 3 right that was applicable, because it was the FNO who was the subject of the deportation order. If she would like further detail on how that works in a letter from the relevant Minister at the Home Office, I am equally happy—she may nod assent or not at this point, given her legal background—to ask for that. [Interruption.] She is nodding assent, so I will ask again that that is included in more detail. Given her legal background, as I say, she may wish to interrogate that further, and I suspect she will.

I hope the right hon. Member will also convey my sympathies to her constituent for what was, on the basis of what she has been able to say, a horrific attack on someone doing their job—doing a job where they were seeking to help members of the public to improve their lives and get them the support they need. No one in any context should be subject to such a horrific attack. I hope the individual is recovering, in so far as she is able, from the trauma of being a survivor of such a crime, but where it crosses into Ministry of Justice policy I am happy to engage with the right hon. Lady and see if I am able to assist in any way.

Question put and agreed to.

18:22

Sitting suspended.