Criminal Justice Bill (Fifteenth sitting)

(Limited Text - Ministerial Extracts only)

Committee stage
Tuesday 30th January 2024 Public Bill Committees

[The Minister for Crime, Policing and Fire (Chris Philp)]

I beg to move, That the clause be read a Second time.

It is a pleasure to serve under your chairmanship, Ms Latham, as we commence our final day of line-by-line consideration of the Bill. [Interruption.] I see that colleagues are very enthusiastic about undertaking the last lap.

My hon. Friend the Member for Newbury, who would ordinarily have moved this Government new clause, has just arrived. With your permission, Ms Latham, might I hand over to her so that she can speak to it?

[The Chair]

Yes, but let me correct the Minister: it is Mrs Latham, not Ms Latham. Having been married nearly 56 years, I do not think “Ms” is right.

[Chris Philp]

I do apologise.

[The Parliamentary Under-Secretary of State for Justice (Laura Farris)]

I apologise to the Committee for being late—I had left something behind.

The new clause amends a number of existing criminal offences in the Sexual Offences Act 2003. Currently, it is an offence for a person intentionally to engage in sexual activity where, for the purposes of obtaining sexual gratification, they do so when a child is present and they know or believe that the child is aware that they are engaging in the sexual activity. There are similar offences that target such behaviour where the victim is an adult with a mental disorder.

We have listened carefully to those on the frontline, who have identified a small category of cases involving this type of behaviour where there was insufficient evidence that the perpetrator knew, believed or intended that the child, or the person with a mental disorder, was aware of the sexual activity, most typically because the child was asleep. The new clause will expand the criminal law so that successful prosecution does not depend on the alleged victim’s awareness of the sexual act or the defendant’s intent. It will capture cases where, for example, a defendant masturbates over a sleeping child for the purpose of sexual gratification and subsequently seeks to argue that they did not believe the child was aware of the activity and did not even intend that the child should be aware of the activity. The new clause therefore alters the mental elements of the offences.

I thank the National Police Chiefs’ Council, a number of individual police forces and the Crown Prosecution Service for bringing to the Government’s attention these troubling cases, which have informed our response and led us to conclude that we should amend the existing offences to protect vulnerable adults and children. The amended offences will retain the need for a link between the child’s presence or observation and the perpetrator’s sexual gratification. That requirement is critical because of the risk of over-criminalising those who engage in sexual activity with no malicious intent where a child may be present, such as parents sharing a bedroom.

We want to ensure that these behaviours are prosecuted, not just to bring offenders to justice but, importantly, to enable the management of offenders and to prevent further escalation where there is the potential for a more serious sexual offence against children or vulnerable adults.

[Alex Norris (Nottingham North) (Lab/Co-op)]

It is a pleasure to serve with you in the Chair, Mrs Latham, for the Committee’s final day.

The new clause is a welcome addition to the Bill. Clearly, experts have identified that the person B knowledge gap is really important and is creating risk with respect to those who seek gratification in this way. It is right that that loophole is closed. My only question for the Minister is about the sort of scale we are talking about. She mentioned a small number of cases. Do the Government have an estimate of the number of cases that the measure is likely to apply to?

[Laura Farris]

I do not have any indication of the number of cases, but we have heard from the police that there have been problems with getting a prosecution where they cannot prove intent.

Question put and agreed to.

New clause 46 accordingly read a Second time and added to the Bill.

New Clause 47

Maximum term of imprisonment for certain offences on summary conviction

“In the following provisions for “6 months” substitute “the general limit in a magistrates’ court”—

section 1(6)(a) of the Prevention of Social Housing Fraud Act 2013 (unlawful sub-letting: secure tenancies);

section 2(7)(a) of that Act (unlawful sub-letting: assured tenancies and secure contracts);

section 30(3)(b) of the Modern Slavery Act 2015 (breach of certain orders or requirements);

section 339(2)(a) of the Sentencing Act 2020 (breach of criminal behaviour order);

section 354(4)(a) of that Act (breach of sexual harm prevention order);

section 363(2)(a) of that Act (breach of restraining order).”—(Laura Farris.)

This new clause provides that the maximum term of imprisonment for certain offences, on summary conviction, is the general limit in a magistrates’ court.

Brought up, read the First and Second time, and added to the Bill.

New Clause 3

Removal of parental responsibility for men convicted of sexual offences against children

‘(1) After section 2 (parental responsibility for children) of the Children Act 1989, insert—

“2A Prisoners: suspension of parental responsibility

(1) This section applies where—

(a) a person (“A”) has been found guilty of a serious sexual offence involving or relating to a child or children; and

(b) A had parental responsibility for a child or children at the time at which the offence was committed.

(2) A ceases to have parental responsibility for all children, for a time specified by the sentencing court or until an application by A to the family court to reinstate parental responsibility has been approved.””—(Jess Phillips.)

Brought up, and read the First time.

--- Later in debate ---

[Alex Cunningham (Stockton North) (Lab)]

It is a pleasure to serve under your chairmanship this morning, Mrs Latham. I welcome the new clause tabled by my right hon. and learned Friend the Member for Camberwell and Peckham and outlined by my hon. Friend the Member for Birmingham, Yardley. New clause 3, as we have heard, seeks to remove the parental responsibility of people convicted of sexual offences against children and I welcome the tremendous cross-party support it has received. The new clause’s core aspect is the welfare of the child. I am one of those whose ambition in being elected to this place was to work for the benefit of young people, and the new clause does that.

The proposal would go some way to strengthening the law around the welfare of a child whose parent has been convicted of sexual offences against children. There are very limited cases where the court has allowed an application to terminate a person’s parental responsibility. They include a 1995 case in which the court terminated the parental responsibility, acquired by a parental responsibility agreement, of a father who had been sent to prison for causing serious injuries to his child.

In 2013, the court removed the parental responsibility of a father who had been imprisoned for sexual abuse of his child’s half-sisters. In a further case in 2013, the court terminated the parental responsibility of a father who was serving a prison sentence for a violent attack on the child’s mother. Finally, in a 2021 case, the court terminated the parental responsibility of a father who had a significant offending history, including sexual offences against children. In other words, this is already happening.

On Second Reading, I spoke about the need to amend the Bill so that offenders who have sexually harmed children and are sent to prison as a result lose the ability to control their own children from behind bars. That measure is long overdue and will ensure all children are safe from those dangerous predators, including their own parents. The key problem to address is: how can a man—it is usually a man—considered too dangerous to work with or be around other people’s children be allowed to have parental responsibility that effectively makes him responsible for all manner of decisions affecting their child’s life, but which may not be in the best interests of the child? Why should any child be subject to any form of control by a convicted sex offender who is unlikely to be part of their lives for years ahead, and possibly forever?

In response to a question on the proposed new clause, Dame Vera Baird told Committee members that she had reservations about the definition of a sexual offence in the context of the Bill as she felt it might be too wide. That said, I hope the Government will at least support the new clause in principle and perhaps return to the issue on Report so that we can take another step in the quest of all of us here to protect children. I look forward to the Minister’s response.

[Laura Farris]

The new clause seeks the automatic suspension of parental responsibility where a parent has been convicted of a serious sexual offence against a child. We understand fully the motivation in bringing the new clause. We have discussed it and I respect the remarks that have been made. I want to confine my remarks to the contours of the current system and where that fits in relation to Jade’s law, which the hon. Member for Birmingham, Yardley has already alluded to, and how that was introduced in the Victims and Prisoners Bill.

Starting with the current state of the law, the paramountcy principle is the cornerstone of the family justice system. There must be full consideration of the best interests of the child as a starting point. The hon. Member for Stockton North has just given an example of a number of cases where the parent had committed a very serious sexual offence and the family court acted accordingly to suspend parental responsibility.

[Jess Phillips]

Perhaps the Minister would like to see my email account, which has a folder specifically for the thousands of cases from the family court where the cornerstone is absolutely not the safety of the child. There are lots of cases where that does not happen—far more than the handful that have been referred to.

[Laura Farris]

I noted what the hon. Lady said in her opening remarks, but I will go through the legal landscape before I come to other issues. As I say, we are carefully considering the force of the new clause.

In cases in which a parent has been convicted of a child sexual offence, the family court has the power to strip out parental responsibility. That decision is made only after careful consideration of the best interests of the individual children, to ensure that their needs are the driver for action. Decisions about suspending or restricting parental responsibility have significant ramifications for children, which is why judges prefer to consider each case on its individual merits and make a decision that is specific to the best interests of that child.

We must not conflate suspending an individual’s parental responsibility with a punishment. It is a step that is taken to protect the child from harm, and because of that it must be taken when it is in the best interests of the child. The new clause, as drafted, makes no provision for the consideration of the best interests of the child. For that reason, we think it engages article 8 consideration under the European convention.

Members are of course aware that the Government recently tabled an amendment to the Victims and Prisoners Bill that will automatically suspend parental responsibility where a parent has been convicted of the murder or the manslaughter of the other parent. We wish to make clear that distinction. In many cases in which one parent has killed the other, the children involved will have no one left to exercise parental responsibility, apart from the killer of their other parent. In such circumstances, we think that it is right that whoever is left caring for the child, whether that be a grandparent or even the local authority, is spared the onus being on them to commence family proceedings to restrict the offender’s parental responsibility.

Where a parent has committed a serious offence other than murder or voluntary manslaughter, it is likely that there will be another parent able to exercise parental responsibility and apply to the family court.

[Jess Phillips]

Does the hon. Lady think it is okay for a woman who has been abused and had her husband convicted of paedophilia to pay £30,000 in order to keep her children safe?

[Laura Farris]

I thank the hon. Lady for her intervention. That case has caused concern, and we have been looking carefully at the legal aid position, which I will come on to.

As I was saying, where a parent has committed a serious offence other than murder or manslaughter, it is likely that there will be another parent able to exercise parental responsibility and make the application to the family court—I will come to legal aid in a moment—for the well-established method of restricting the offender’s parental responsibility.

Lord Meston, a family court judge who sits in the House of Lords, made a speech on the Victims and Prisoners Bill in which he warmly welcomed the inclusion of Jade’s law as a way of automatically restricting the rights of the other parent. I just say this in passing. He was invited to consider whether there should be the automatic suspension of parental responsibility if another kind of crime was committed. He said something that we have noted as part of our thinking:

“However, on reflection, I do not think that the Crown Court should be expected, as part of a sentencing exercise, to make automatic prohibited steps orders”

in different cases. He continued:

“The Crown Court will not have, and cannot be expected to have, a full appreciation of the family’s structure and dynamics, and of the circumstances of the children concerned, and will not have input from Cafcass.” Lords—[Official Report, House of Lords, 18 December 2023; Vol. 834, c. 2094.]

That is not determinative of our thinking, but it is the reflection of a family court judge who sits in the other place. That is what he said in relation to Jade’s law while, of course, welcoming it.

The automatic nature of the new clause would mean there would be no space for the court to consider the wishes of the other parent or the wishes of the children as to whether the matter should be brought to a family court.

[Jess Phillips]

The new clause clearly states that the other parent can apply to the court to have their wishes heard, but it is not the responsibility of a completely innocent mother, in most cases, to have to protect her child from a sex offender.

[Laura Farris]

I accept that the new clause gives the other parent the right to return to the family court, but effectively it could force a child to make applications to the family court to have their wishes considered.

[Jess Phillips]

How?

[Laura Farris]

Because there has to be an application for the reinstatement of parental responsibility. That is what the new clause states at proposed new section 2A(2).

[Jess Phillips]

The hon. Lady said that a child would have to make an application to the family court. How is that the case?

[Laura Farris]

The child would have to advance what their best interests are to the family court, if parental responsibility has already been suspended.

[Jess Phillips]

Children do not take cases.

[Laura Farris]

We have carefully considered the case in Cardiff. I want to make it clear that legal aid is available for a prohibited steps order and specific issue order in specific circumstances, subject to means and merits tests and evidence requirements relating to domestic abuse or the protection of children being met. Where the subject of an order has a relevant conviction for a child abuse offence, it is likely that the application would satisfy the relevant evidence and merits criteria. We are looking into why that was not the case for the lady in Cardiff.

[Jess Phillips]

Could I also open all the other cases with the Legal Aid Agency? The vast majority of people I encounter—there are thousands, and I have sat in the family court for hours—have not been able to access legal aid. Every one of them is a victim. Perhaps the Minister could look into that.

[Laura Farris]

That warrants a response, and the hon. Lady will get one.

My final point, to which the hon. Lady alluded in her opening remarks, when she said she hoped the provision might go wider, is that one of the conceptual difficulties with the new clause is that it would seek to remove parental responsibility in cases of serious child sexual abuse, but it is silent on, for example, child murder. Or what about perhaps a serious case of terrorism, where we could advance a plausible argument? We think there are issues around the scope of the new clause.

[Jess Phillips]

I could not agree more—the scope needs to be much wider—so will the Minister and the Government, by Report stage or in the Lords, finally act on the harms review by tabling amendments to the Bill that we can all be proud of?

[Laura Farris]

As I say, we are looking at the definitional issues. We are also looking carefully at the paramountcy principle, which underpins the way in which cases are approached in the family court. The new clause has a worthy aim. We have huge sympathy for families in these circumstances and want to do as much as possible to support them in getting the right outcome for their children. At present, we do not think the new clause is the right way to do that, and we urge the hon. Lady to withdraw it.

[Jess Phillips]

For nearly 10 years I have had Ministers stand in front of me and say, “We are a bit worried about” some legal word or other. How many children have died because of family court proceedings in the 10 years that we have been trying to raise the alarm? The family courts in our country will be the next Rotherham or Rochdale. State-sanctioned child abuse is going on and we all just turn a blind eye. The things that I have seen in courts are harrowing. I have watched children being removed from their loving mothers and placed fully in the care of paedophiles—proven child abusers. For me, we cannot casually sit here and pretend that that is okay.

Funnily enough, one of the people I started this campaign with, all those years ago, was the current Justice Secretary. Why is it taking so long to do something about the family courts in our country? They are actively dangerous, everybody knows it and nobody is doing anything about it. It is like the Post Office; I will not be one of those people who sat by and did nothing.

I will not press the new clause to a Division, because its scope is not wide enough and does not deal with half the harms that I see. If the Minister wants to take away the parental responsibility for children from terrorists she can knock herself out—I will support it. I will support any movement towards progress in the family court, because I have seen none. I look forward to the Government coming forward with an all-singing, all-dancing proposal that will make children safe. I beg to ask leave to withdraw the motion.

Motion, by leave, withdrawn.

--- Later in debate ---

[Alex Cunningham]

I will be brief. As the hon. Gentleman said, this is a distressing new clause, but the Opposition believe it is very much necessary. I was briefed on it last week by the right hon. Member for Tunbridge Wells, and I was really shocked by what he had to tell me about the murderer David Fuller. The facts have been outlined to the Committee today. Fuller was of course jailed for murder, but that someone could carry out the assaults that he did on dead people and not be prosecuted beggars belief. None of us can comprehend the distress caused to the families of the deceased people Fuller violated. It is important that we ensure that anyone who acts as he did is suitably punished.

I note that the hon. Member for South Basildon and East Thurrock does not intend to press the matter to a vote, but I hope the Minister will be sympathetic to his cause and that of the right hon. Member for Tunbridge Wells. I reiterate our support for the new clause and ask the Government to bring forward a new clause, perhaps on Report, to deal with this most horrendous crime.

[Laura Farris]

I thank my hon. Friend the Member for South Basildon and East Thurrock for his speech. I am grateful for the opportunity—

[The Chair]

Order. May I intervene? I have been passed a note to say that the mics in the room are for the audio recording of proceedings, not for amplification in the room, so Members should be advised to speak up if others are having difficulty hearing. I understand that when somebody has their back to the people they are speaking to, it is very difficult to hear, so would the Minister mind speaking up a little?

[Laura Farris]

Thank you, Mrs Latham. I am grateful for the opportunity to speak about the new clause. I hope people can hear me this time.

It is actually quite rare in this place that we find that there is a crime that is not reflected at all in the law. This is one of those examples. It follows the truly disgusting offending by David Fuller. I want to start by acknowledging the experience of his victims’ families and how distressing it has been for them. I thank my hon. Friend the Member for Chatham and Aylesford and my right hon. Friend the Member for Tunbridge Wells for their work on this matter.

The Government have been reviewing the sexual penetration of a corpse offence in section 70 of the Sexual Offences Act 2003, which currently carries a maximum penalty of two years’ imprisonment following conviction on indictment, and we agree that there is a gap in the law. Section 70 applies only to sexual penetration of a corpse, so any form of sexual touching falling short of penetration is not currently a criminal offence. The Government have therefore concluded that the criminal law should be expanded to include non-penetrative sexual activity with a corpse.

The Government have also concluded that the current statutory maximum does not adequately reflect the harm caused by an offence of this nature, and that it should be increased from two years’ to five years’ imprisonment. We therefore support my right hon. and hon. Friends’ laudable aims in tabling their new clause.

In the interests of completeness, I will set out why we cannot accept the new clause as drafted. It would not repeal section 70 of the Sexual Offences Act but would create a new offence, in proposed new section 70A, with a higher maximum penalty than the behaviour already covered by section 70. It would also introduce the concept of interference with a corpse. With respect, we say that is unnecessary, because touching is already defined in section 79(8), and we think that section can be expanded and read across to apply to victims in the circumstance we are discussing. Introducing a new concept of interference, which could arguably be interpreted differently, could lead to confusion in the prosecution of the offence, which we think is not necessary.

In addition, the offence in the new clause as drafted does not require the offender to know or be reckless to the fact that what is being interfered with is a dead body. We think the mental element of the offence is important so that we capture those who are genuinely committing a criminal offence.

Again, I thank all the Members who have spoken on this matter, particularly my right hon. Friend the Member for Tunbridge Wells and my hon. Friend the Member for Chatham and Aylesford who have been to see me. They continue to make efforts on behalf of their constituents who have been so badly affected by this uniquely disgusting and horrific crime. We support the intentions behind the new clause, and I look forward to working with hon. Friends to find a way to bring forward the necessary legislation in this Bill. With that reassurance, I urge my hon. Friend to withdraw his new clause.

[Stephen Metcalfe]

I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

New Clause 16

Complicity in joint enterprise cases

In section 8 (abettors in misdemeanors) of the Accessories and Abettors Act 1861, after “shall” insert—

“, by making a significant contribution to its commission,”.—(Peter Dowd.)

This new clause would clarify the definition of ‘joint enterprise’ (or secondary liability), so that an individual must make a “significant contribution” to an offence committed by another to be criminally liable.

Brought up, and read the First time.

--- Later in debate ---

[Alex Cunningham]

I begin by paying tribute to the work of my hon. Friend the Member for Bootle on the new clause, and the ongoing work of my hon. Friend the Member for Liverpool, Riverside (Kim Johnson), who we have already heard has introduced a private Member’s Bill to the House on the same issue. I am sure that Members across the Committee will share my admiration and respect for the campaigners from JENGbA, who have been tirelessly working on challenging injustices in joint enterprise convictions for well over a decade.

As we have just heard, the new clause mirrors the Joint Enterprise (Significant Contribution) Bill, which we hope will receive its Second Reading on Friday 2 February. I would prefer to see the Government making commitments on this matter, as it is a complex area of law and practice and any reforms will need careful consideration and monitoring to ensure that they are working, especially after the unexpected absence of change following the Jogee decision in 2016, which I will come back to later.

I am glad that the new clause has been tabled to enable a discussion in Committee, because the issue deserves more parliamentary time. Even though we have had many criminal justice Bills before this House in the past 10 years, all while alarms have been raised about continuing problems with joint enterprise law, Parliament has not engaged substantially with the issue for some time. During my tenure as shadow Justice Minister, I met the Centre for Crime and Justice Studies and the PCS, among others, and heard about ongoing challenges with joint enterprise convictions, despite the decision in Jogee and the very active collaboration between campaigners, legal practitioners and academics over the last decade. So I will be very interested to hear from the Minister about the work her Department has been doing in this area and, indeed, about any ongoing engagement it has had with campaigners, experts and practitioners who are collaborating on reform in this area.

The processes of prosecution and conviction in our criminal justice system should be fair, transparent and accountable, but joint enterprise law can be vague and confusing, and it can lead to apparently unjust outcomes. Some examples of individuals who are potentially at risk of being prosecuted under joint enterprise have been provided by Dr Felicity Gerry KC, who was the lead counsel in the case of Jogee. My hon. Friend the Member for Bootle has already outlined them to the Committee.

In 2016, when the Supreme Court ruled that the law of joint enterprise had taken a “wrong turn” for over 30 years, it restored the proper law of intention so that those who intended to commit or assist a crime, rather than those who might have foreseen it, could be properly convicted under joint enterprise law. These are all based on real cases, and as I have said, my hon. Friend has given the example of the taxi passenger getting out and becoming involved in a stabbing, or the woman who pulled somebody’s hair while trying to defend her boyfriend who may well have carried out a serious offence. Those individuals were charged under joint enterprise law, and they were at risk of extremely lengthy sentences, as if they were the primary offender, even when it is very difficult to discern how they contributed to the crime in question. Joint enterprise law has been used to convict young people who have not been present at the scene of the crime, and young people who listen to certain kinds of music, and there is a risk that such a trial focuses on character and culture, not contribution to a crime. My hon. Friend spoke about that in some detail. It is clear that joint enterprise law needs to be reformed in some way.

Last September, the CPS finally recorded and published a set of pilot data about joint enterprise cases, as a result of legal action by Liberty and JENGbA. While the results were shocking, they were, sadly, not surprising, as they confirmed much of what has been said by joint enterprise reformers for years. The data revealed that over half of those involved were aged under 25. Some 30% of the defendants in the cases were black, compared with the 4% of black people in the wider population, and black 18 to 24-year-olds were the largest demographic group identified in the pilot data. The data illustrated what we already knew about joint enterprise, which is that there is a serious racial disproportionality in its use.

The CPS pilot data suggests that black people are 16 times—I repeat, 16 times—more likely than white people to be prosecuted for homicide or attempted homicide under joint enterprise laws, which is a very significant divergence. I would be grateful to hear from the Minister the results of the data analysis, particularly about what she believes are the reasons behind the shocking disparities, given that the CPS has said that no conclusions about its decision making can be drawn from the pilot data. At the very least, we have to ask questions about the possibility that this level of divergence is at least in part caused by discriminatory practices in our criminal justice system. Looking at those figures, is the Minister confident that the framework for joint enterprise prosecutions is fit for purpose?

It has taken a number of years for the CPS to finally publish data on this important issue, but now that we have it, we must ensure that the Ministry of Justice is using that data to explore how it can best improve practice. I would also be grateful if the Minister could share any other plans for data collection and analysis in relation to the application of joint enterprise law, and anything she is aware of in the Ministry of Justice, the CPS or other Government body that is happening to progress this.

I was personally quite surprised at the scale of joint enterprise prosecutions, with the CPS data showing 680 defendants in 190 cases of homicide or attempted homicide across six of 14 CPS areas in just six months. That number is considerably higher than I would ever have anticipated. If the Minister has any thoughts on the number of prosecutions, I ask her to share them with the Committee. The high level of joint enterprise prosecutions demonstrates that at the very least it is an issue deserving of considerably more active consideration by parliamentarians and the Government.

Finally, I would be grateful if the Minister could speak to any discussions that she has had in her Department about the recent Fiaz case, in which the Court of Appeal suggested that a jury need not be specifically directed by the judge to consider the legal significance of a defendant’s contribution towards an offence. Dr Gerry has argued that the case highlights the need for additional legal clarity, as judges do not always direct juries to consider the significance of a defendant’s contribution toward an offence. Does the Minister also recognise the need for additional clarity in that area, and has her Department considered any means by which that may be achieved? It is an area with substantial cross-party recognition that more needs to be done to increase the fairness, transparency and accountability of prosecutions, and I look forward to hearing the Department’s position on the matter.

[Laura Farris]

I thank the hon. Member for Bootle for tabling new clause 16, which would amend section 8 of the Accessories and Abettors Act 1861 to provide that a person must have made a “significant contribution” to an offence committed as part of a joint enterprise to be indicted or punished as a principal offender. Its effect would be that the prosecution would have to identify the precise nature of the defendant’s role in aiding, abetting, procuring or counselling the commission of a crime committed in order to prove that the defendant had made a significant contribution—a threshold that need not currently be met.

Joint enterprise is a common law doctrine used in a variety of situations, most commonly to describe a situation in which two or more individuals have a common purpose to commit any criminal offence, or a secondary party encourages or assists the principal offender to commit an offence. It is a long-standing principle of criminal law that in either of those situations, both or all of the offenders may be held equally responsible and could be subject to the same penalty.

The hon. Member for Bootle has set out a number of examples, but I will start with a high-profile one. Members of the Committee may well recall the Victoria station attack in 2010, when a group of young men chased another young man over the ticket turnstile and down the escalator, where they set upon him. In the course of that attack, the young man was kicked in the head and torso repeatedly and was stabbed, and he died. At the end of it, the cause of death was multiple injuries, but it was impossible for the coroner to say who had struck the fatal blow with the knife or who had administered the fatal kick to the head. The whole group of assailants was put on trial; a number were convicted of murder and a number were convicted of manslaughter. That was classic joint enterprise, where they went with a common purpose to attack seriously an individual, and it could not be identified who had made the significant contribution, but the young man—the victim—was killed.

I say with great respect that R v. Jogee, which went before the Supreme Court in 2016 and to which the hon. Members for Stockton North and for Bootle both referred, was not an ordinary case. It was not even close to being an ordinary case. The Supreme Court reviewed 500 years of common-law jurisprudence on joint enterprise, and not only changed the law but issued really important guidance. I would like very briefly to talk the Committee through the framework that the Supreme Court applied, because it will help to explain why the Government will not accept new clause 16 today.

The Supreme Court said that it circumscribed the ambit of the offence and removed, as a matter of common law, the principle of parasitic accessory liability. To give an example that is sometimes given in case studies, if two people go to a farm with the purpose of stealing some farm machinery, and the farmer approaches them, and then person No. 1 pulls out a weapon and uses it on the farmer, that would not be decisive evidence that person No. 2 intended to kill or cause serious harm. That would previously have been the case under the principle of parasitic accessory liability, but the Supreme Court said that that went too far. In plain English, it said that joint enterprise cannot be inferred from the fact that it was foreseeable that a secondary offence would take place; there has to be an intention to assist. It said that the existence of foreseeability was something that the court should treat as evidence of intent, but was not necessarily decisive of it.

The judgment concluded by saying that joint enterprise essentially requires two elements. The first is a conduct element: the accessory must encourage or assist the crime committed by the principal. Secondly, the prosecution must show that the mental element existed, in other words that the accessory intended to encourage and assist the commission of the crime committed by the principal.

I have done a bit of a review of the case law—although I question whether it is helpful or unhelpful to go through case law during a Bill Committee in which nobody has the opportunity to read the case report—and am satisfied that there have been examples of case law since the Jogee case that show that approach being fairly applied. One example is of a group of young men who undertook a burglary on a care home. One person was tasked with searching the rooms before the others went in. In the course of events, one of the residents of the care home was brutally attacked. The young man who had done the search went in to try to stop it; he established that in court. He was convicted of burglary but not of the secondary attack, because that had not been his intention as part of the joint enterprise exercise.

--- Later in debate ---

[Jess Phillips]

Can the Minister tell me what protections are in place for the woman in the case that I outlined? She was considered to be an accessory to a crime. She was a victim of coercive and controlling behaviour, and the crime was a part of a pattern of domestic abuse.

[Laura Farris]

In that circumstance, the defence of duress would be available to the victim in the ordinary way.

[Jess Phillips]

Currently, that is absolutely not what is happening in our criminal courts. It is currently no defence for victims of domestic abuse in these cases to say, “I’m a victim of domestic abuse: that’s why I ended up here.” The Minister is saying that there is the defence of duress; I am saying that it never gets used. It does not stack up, and this is not happening in reality. She has spoken of her pride in the Government over coercive control. Does she think that there need to be specific elements, within this conversation about joint enterprise, to protect people who are coerced into such behaviours?

[Laura Farris]

We will come on to some amendments of that nature and I will deal with them in due course, but the defence of duress is a standard defence in the criminal context. [Interruption.] These are the criminal defences that get advanced.

In response to the hon. Member for Bootle, this is an area of the law that is intrinsically linked with other inchoate offences such as encouraging or assisting a crime. We think that it is too difficult to require the prosecution to prove a significant contribution; as we say, the very important case of Jogee has set clear parameters for both the conduct element and the mental element, which we think creates the correct framework of common law. For those reasons, the Government are unable to support the new clause, and we ask the hon. Member for Bootle to withdraw it.

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[Alex Cunningham]

I shall be brief. My hon. Friends the Members for Bootle and for Swansea East have addressed new clauses 17, 18 and 49, and I pay tribute to them and to my hon. Friend the Member for Merthyr Tydfil and Rhymney for the work they have done on road traffic incidents. All three new clauses illustrate the need for a sentencing review for serious road traffic offences, and Labour is committed to doing that alongside sentencing for other serious crimes across the system.

The Minister and the Committee heard the tragic accounts outlined by my hon. Friends, including that of a runaway car that killed a young child. Sadly, in that case, there could be no justice for the child or her family as no offence related to the circumstances of her death. Surely that cannot be right. I am sure the Minister agrees that we have a duty to act in all three areas outlined in the new clauses. Has she examined the impact of those measures on cost, particularly in relation to the additional cost of prison places? If she has not, will she consider doing so before Report and share that information with the Committee, so that we are better informed? If she cannot support the new clauses today, I would be obliged if she told us what action, if any, her Department is considering for such offences and whether the Government plan to address them in the Bill at a later stage, or perhaps during Committee of the whole House on the Sentencing Bill, which I believe is due within the next few weeks.

There can be no doubt that the new clauses would close loopholes in the law that currently prevent families of loved ones killed in tragic circumstances from achieving either justice or closure. I look forward to the Minister’s response.

[Laura Farris]

I thank the hon. Members for Bootle and for Swansea East for compellingly setting out the impact of various forms of driving offence that are raised in our surgeries. When we talk about driving offences, there is often a narrow focus on things such as drink-driving for which the penalties are serious; we do not talk enough about things such as causing death by dangerous driving, which can be unbelievably reckless and irresponsible and cause the most serious harms.

The hit and run that the hon. Member for Bootle so powerfully described was an extension of dangerous driving. Whether panic, cowardice or other offences that the perpetrator is concerned about come to the fore, such incidents are absolutely devastating for the families of the victim. I therefore pay tribute to those hon. Members for the way in which they presented the new clauses.

It was helpful to hear that the hon. Member for Bottle is not wedded to the language he has used in his new clause. I had some remarks to make about that, but I will not spend too much time on that because of his indication. I do not know whether this applies to the hon. Member for Bootle too, but I understand that the hon. Member for Merthyr Tydfil and Rhymney is having conversations with the Department for Transport. I hope the hon. Member for Bootle will allow time for those conversations to happen and for us to engage with them before the Bill comes back. With all that in mind, I will lay out the framework for how we deal with the hit and run issue and I will then come on to the other points and where the Government’s thinking lies at present.

--- Later in debate ---

[Mark Garnier (Wyre Forest) (Con)]

Quad bikes.

[Laura Farris]

Hon. Members will know what I mean: those things that are not cars. There is, therefore, quite a lot of classification. We have a two-part system.

[Mark Garnier]

I am slightly confused. I get all the stuff about not being insured and not needing a driving licence, but surely if a person clobbers somebody with a quad bike and causes them injury, there has to be some recourse?

[Laura Farris]

My hon. Friend is correct, but that would be a civil action for negligence, for which remedies would be available. We treat private land separately, but I think the was saying something rather different, about where private land becomes public land. When the index offence takes place, it relates to a motor vehicle on public land; we are not dealing with particularly difficult definitional issues. I undertake to take that point away; I had not understood it from the motion and the explanation of the hon. Member for Swansea East, so it might require some further thought. I hope conversations are happening in the Department for Transport, but I will ensure that that point is included in the Department’s thinking.

I point out, in the interest of completeness, that there is a broad definition of land that is defined as “private”. Some complications may exist around the classifications of private land, such as that used for military, commercial or other official purposes or land that is exempt from legal proceedings for offences committed there. There is a legal framework in place. Accidents on private land are covered by civil law and compensation—I talked about negligence in relation to a quad bike. In extreme cases such as gross negligence manslaughter or breaches of the Offences Against the Person Act 1861, the criminal law may be engaged too. With all that in mind, I urge hon. Members to withdraw the motion.

[Peter Dowd]

I hear what the Minister says, and I will withdraw the motion. It was a probing amendment in an attempt to give consideration to this issue, which affects so many people—our constituents—day in, day out; I gave the figures. As I said, I recuse myself from giving examples, because they are dreadfully distressing for people and I do not want to distress Members any more than I need to. I recused myself from giving examples, of which there are so many, but I hope the Minister hears the spirit of what I tried to say. It is not about people wanting vengeance; it is about getting an element of justice. I hope the Government will give serious consideration to these matters, because at some point they will come back.

I acknowledge and accept that this is not a transport Committee, but my proposals are within the scope of the Bill, so the Government have the power to pursue them if they wish. I ask the Ministers to take them away and think about them. I will be in touch with the Department for Transport, although, as I mentioned earlier, Departments are often packed out with work. None the less, this issue is of such import—it impacts on the lives of our constituents day in, day out—and we and the Government must consider it very carefully as early as practically possible. I beg to ask leave to withdraw the motion.

Motion, by leave, withdrawn.

New Clause 19

Use of another person’s dwelling place for criminal purposes: cuckooing

“(1) A person ‘P’ commits an offence if—

(a) P makes regular use of or takes up residence in a residential building lawfully occupied by another person ‘R’,

(b) P uses the residential building as a base for criminal activities including but not limited to—

(i) dealing, storing or taking unlawfully held controlled drugs,

(ii) facilitating sex work,

(iii) taking up residence without a lawful agreement with R in circumstances where R is under duress or otherwise being coerced or controlled, or

(iv) financially abusing R.

(2) For the purposes of this section—

(a) ‘building’ includes any structure or part of a structure (including a temporary or moveable structure), and

(b) a building is ‘residential’ if it is designed or adapted, before the time of entry, for use as a place to live.

(3) A person who commits an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding the general limit in a magistrates’ court or a fine (or both);

(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine (or both).”—(Alex Cunningham.)

This new clause would make cuckooing an offence. Cuckooing is where the home of a vulnerable person is taken over by a criminal in order to use it to deal, store or take drugs, facilitate sex work, as a place for them to live, or to financially abuse the occupier.

Brought up, and read the First time.

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[Jess Phillips]

I support the shadow Minister’s every word and point out, as he has done, the level of cross-party support for a change to this particular piece of law. In some way, I hope to outline some of the reasons why not many cases of cuckooing have been brought forward. I saw a case of a young woman, who was exploited from childhood into adulthood through the care system—and then in her own private property; men would come around to rape, sexually assault and sell her in her own property. People might, perfectly reasonably, say, “Why wouldn’t you call the police?” Well, there were kilos of cocaine and heroin left in her property, and she was absolutely convinced—nothing that I could convince her otherwise—that she would be criminalised if she called the police to her home. In other cases, there might be a cannabis farm in the ceiling, for example, and people are convinced that they will be criminalised.

Without doubt, there are more people in our prisons who have been victims of human trafficking than there are human traffickers. Certainly, for those charged under any of the crimes in the Modern Slavery Act, there will be many more people in our prisons who should actually have been saved by the provisions in that Act that say that criminalisation should not occur—yet it does, every single day; we continue to criminalise people in that manner, even when they are the victim of the crime. The vulnerable people in these cases know that, so they do not report the crimes.

We have had lots of discussions about finding weapons that are not just a kitchen knife in people’s houses. If authorities were to go into the home of a young woman who had been in the care system and had been difficult at times, and they found lots of drugs and weapons, do we honestly think that she would not be convicted of that crime? If we do, we are not living in reality at all. It is vital to have an understanding of what happens in these cuckooing cases. We need to recognise it to try to overcome some of the criminalisation, and the threat of criminalisation, that already exists.

I have met girls who have had photographs taken of them holding guns that have been used in fatal injuries, as a threat to them that they will be put up for that crime. When somebody has been groomed that well, they will believe it, no matter what I say—even if I say, “I will stand next to you in the courtroom and I will make sure this doesn’t happen.” It does happen. Recognising in law that this crime is specifically about taking over a home, and leaving incriminating evidence around the place, is really important in changing that.

[Chris Philp]

It is, as always, a pleasure to serve under your chairmanship, Mrs Latham. I thank the hon. Member for Stockton North for the thoughtful and considered way in which he moved the new clause. He and the hon. Member for Birmingham, Yardley both expressed sentiments about protecting vulnerable individuals from the practice known as cuckooing, and I will start by saying that the Government are just as concerned as they are. We are united in our shared desire to protect vulnerable people from the exploitation that they both described, so we are unanimous in our objectives in this area.

As the hon. Member for Stockton North said, most commonly the practice of cuckooing is associated with drug dealing, but it can be associated with other forms of criminality. I will raise a couple of points about his new clause. First, as it is currently drafted, there would be no requirement for there to be any coercion. For the proposed new offence to be made out, it would simply be sufficient for somebody—the perpetrator or alleged perpetrator—to occupy a residential building lawfully occupied by another, and then to commit a criminal offence.

The new offence of cuckooing would be made out even if there was no coercion and, in fact, even if it was done consensually. If the person who owned the house gave their free consent, without coercion, to the alleged perpetrator, the new offence proposed by the new clause would be committed. As I say, there is no requirement in the drafting for any form of coercion or even non-consent, whether or not there was coercion or exploitation. The way it is drafted goes beyond what I would expect in a cuckooing offence, where I imagine there would be some form of coercion, and non-consent by the person who owns the property.

[Alex Cunningham]

Subsection (1)(b)(iii) includes

“taking up residence without a lawful agreement with R in circumstances where R is under duress or otherwise being coerced or controlled”.

It does address coercion.

[Chris Philp]

With respect, those sub-limbs of paragraph (b) say “or”. It is only one of those requirements that needs to be met, not all of them. Although it is true that in the hon. Member’s drafting, subsection (1)(b)(iii) does require coercion or duress, the other sub-limbs—(i) and (ii) in particular—do not require duress. If that had been an “and”, it would be different. That would require all the conditions to be met, including criminality and duress. However, because the end of the line in sub-paragraph (iii) says “or”, that is only one possible sub-limb that can be met. The other sub-limbs, which the criminal offence includes but is not limited to, could be engaged as well. For example, if somebody was dealing drugs, that would engage paragraph (b)(i) even if there was no control or coercion. I think the Committee can see that because of that word “or”—

[The Chair]

Order.