(1 day, 8 hours ago)
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Lord Banner
“Amendment to the Sentencing Act 2020 to introduce public interest compensation orders(1) The Sentencing Act 2020 is amended as follows.(2) After section 133(b) (compensation orders), insert “, or(c) to make a payment to one or more relevant organisations for public interest or social purposes (“public interest compensation order”).(2) In this Chapter, “relevant organisation” means an organisation listed in Schedule 22A (Relevant organisations for public interest compensation orders).”.(3) After section 135 (making a compensation order), insert—“135A Public interest compensation orders(1) When convicting a person of a relevant offence, the court shall consider whether to issue a public interest compensation order, and what the terms of that order should be.(2) In this section “relevant offence” means an offence listed in Schedule 22B (Relevant offences for public interest compensation orders).(3) The Secretary of State may by order amend the relevant offences listed in Schedule 22B.(4) In determining whether to make a public interest compensation order against an offender, the amount to be paid under such an order, or to which relevant organisation(s) the payment(s) should be made, the court must, in addition to the factor in section 135(3), have regard to—(a) the rights of victims of human rights violations (inside or outside the United Kingdom) to receive effective reparation and remedy,(b) the fact that individuals who are not proven to be direct victims of the offender’s offence may nevertheless be victims of human rights violations to which the offender’s offence is related,(c) the broader impact of the offender’s offence on victims of human rights violations in the United Kingdom or in other countries,(d) where there is a large number of victims of human rights violations to which the offender’s offence is related, the urgency of victims’ needs (which may vary depending on the harms that they have suffered),(e) where the relevant offence is an offence under regulations imposed under the Sanctions and Anti-Money Laundering Act 2018, the purposes of the relevant regulations and any human rights violations arising in connection with conduct that these regulations seek to discourage, and (f) whether it would be appropriate to make another type of compensation order and, if so, whether the offender has sufficient means to pay both orders, as well as the need to prioritise compensation to direct victims of the offender’s offence.(5) If the court considers issuing a public interest compensation order, the court may (but is not required to) ask the Secretary of State to recommend the relevant organisation(s) to which the funds subject to the order should be paid and if the court makes such a request—(a) the Secretary of State shall, within 90 days (the “relevant period”), recommend to the court in writing one or more organisations to which the funds subject to the order should be paid (the “recommendation”) and in doing so, the Secretary of State must have regard to the same factors as under subsection (4) above(b) the court may issue a public interest compensation order after the earlier of—(i) the court having received a recommendation, and(ii) the relevant period having expired,(c) if a recommendation has been made within the relevant period, the court may take it into account in issuing a public interest compensation order but shall not be bound by it.(6) The court may direct that confiscated funds be paid to a relevant organisation subject to such conditions as it considers appropriate.(7) The Secretary of State may by order amend the organisations listed in Schedule 22A and the Secretary of State shall review the organisations listed in Schedule 22A at least annually.(8) If, under subsection (5) above, the Secretary of State recommends one or more organisations that are not listed in Schedule 22B, the organisation(s) recommended by the Secretary of State shall be considered relevant organisation(s) for the purposes of the public interest compensation order at issue.(9) For the purposes of this section, a court may issue a public interest compensation order regardless of whether there is a direct connection between the offender’s conduct and the harm suffered by the ultimate recipients or beneficiaries of the public interest compensation order.”.(4) After Schedule 22 (Amendments of the Sentencing Code and related amendments of other legislation), insert the following new Schedule—“Schedule 22ARelevant organisations for public interest compensation orders1 The following organisations—The Trust Fund for Victims, created by the Assembly of States Parties in accordance with article 79 of the Rome Statute of the International Criminal Court.The Register of Damage Caused by the Aggression of the Russian Federation against Ukraine, established within the framework of the Council of Europe by Resolution CM/Res(2023)3, or any successor body or attached fund.The United Nations Voluntary Fund for Victims of Torture, established by the United Nations General Assembly through resolution 36/151 of 16 December 1981.”.(5) After Schedule 22A (Relevant organisations for public interest compensation orders), insert the following new Schedule— “Schedule 22BRelevant offences for public interest compensation orders1 The following offences to the extent that they are offences under the law of England and Wales—Offences arising under regulations imposed under the Sanctions and Anti-Money Laundering Act 2018.”.”Member’s explanatory statement
This amendment seeks to amend the Sentencing Act 2020. It would allow the courts to award compensation orders not only to individuals but also for public interest or social purposes, thereby enabling the proceeds of confiscated criminal assets to be more readily used to compensate victims of offences under the UK’s sanctions legislation.
Lord Banner (Con)
My Lords, in moving Amendment 417 I will speak to the associated Amendment 419, both in my name and with named support across the Committee. The purpose of these amendments is to provide a clear and easy-to-use legal basis for those found guilty of sanctions breaches and other similar offences to pay compensation in the public interest to specified victims’ organisations listed in the proposed Schedule 22A and any other similar organisations added to that list through regulations.
There is a clear case for legislative intervention in this area. By way of overview, the existing law provides only a very narrow basis for using the proceeds of confiscated criminal assets to compensate victims, and only in straightforward cases. Victims are rarely allocated any share of the sums recovered. Amendments 417 and 419 would empower courts to award compensation for public interest or social purposes, addressing a significant gap in the law by enabling compensation in the more complex cases for which the existing law is ill suited—for example, supporting Ukrainians who are most impacted by breaches of the UK’s targeted sanctions against the Putin regime and its corrupt cronies.
Against that overview, I turn to the main features of the existing law to demonstrate why they do not go far enough. First, compensation orders under the Sentencing Act 2020 are designed to compensate direct victims of criminal conduct. Where a conviction has been secured, the court is empowered to order the offender to pay compensation for any personal injury, loss or damage arising from the offence in question. The courts have, however, held that these kinds of compensation orders are intended only for clear and simple cases, where there is an obvious direct victim and the amount of compensation can readily and easily be ascertained. Thus, for example, a builder may take a £15,000 deposit to complete building work for a home owner and fraudulently make no attempt to carry out the work. There is a clear victim and a clear loss: the home owner and the £15,000. The compensation order is well suited to handle that sort of case.
By contrast, a court is highly unlikely to be able to make a standard compensation order in a sanctions breach or similar case. Sanctions breaches are rarely clear and simple cases because, by the nature of the offence, the consequences are wide reaching, and they can violate the rights of a large number of people. Victims of the breach, or indeed the precise loss or damage suffered, will typically be very difficult to identify or quantify with the necessary precision required by the current law.
Courts are ill equipped to handle victim compensation in such cases, given the vast and multifaceted harms at issue and the indirect connection between the harms and the sanctions breach. The NGO Redress has advised that its experts are not aware of any single sanctions breach case in the UK in which the court has issued a compensation order for victims. I would be interested to know whether the Minister can provide us with any such examples. Such compensation orders are simply not suited to complex economic crime, such as sanctions offences.
The second area of the existing law is confiscation orders under the Proceeds of Crime Act 2002. In the event of a conviction, the court can order the confiscation of a portion of an offender’s assets, provided they have been found to have benefited from their criminal conduct. These confiscation orders are intended to deprive the defendant of the proceeds of the crime, rather than to compensate victims. The amounts confiscated are usually paid to the Government’s bank account and then sometimes shared across certain government departments and arm’s-length bodies. No amount is typically paid to victims, subject to very limited exceptions.
The third category of the existing law is forfeiture orders, also under the Proceeds of Crime Act 2002. In this respect, agencies such as the National Crime Agency, HMRC and the Serious Fraud Office, among others, can institute civil forfeiture proceedings in some situations, in which a court may issue a forfeiture order in respect of funds associated with unlawful conduct. Here too, however, the law is inadequate to deal with sanctions breaches. There is a statutory requirement for funds that have been forfeited under such an order to be paid, again, to the Government’s general bank account, with very limited exceptions relating to situations where someone can show that the amount belongs to them and that they were deprived of it by the offender’s unlawful conduct. Again, that is ill suited to the sanctions context.
Pulling this together, I suggest that, unless the law is changed, in the vast majority of cases judges will have no real ability to award compensation to the victims of sanctions and associated crimes. Not a penny will go to the very people most harmed by the criminal violation in question, not because they are undeserving or have not suffered a harm, but simply because there is a gap in the law that means their position cannot be addressed. This shortcoming is increasingly indefensible in the current world in which we live and will only grow as the UK rightly takes more sanctions enforcement action, most immediately in the context of Ukraine but also in any future cases.
Dealing with the context of Ukraine, the UK positions itself, quite admirably, as a global leader on Russian sanctions. Some 3,000 targets have been sanctioned to date. Yet, when it comes to enforcing these sanctions and penalising any breaches of them, it is the UK, not the victims, that retains the proceeds. Having dedicated unprecedented diplomatic and financial resources to seeking to bring an end to Putin’s war for the benefit of the Ukrainian people, it is striking that the courts have practically no legal basis to channel any of the proceeds of Russian sanctions breaches to Ukrainian victims, whom the sanctions programme is ultimately intended to protect.
I turn to alternatives. In correspondence between Redress and the Home Office, which I have seen, the Minister referred to other amendments proposed to the Bill to ensure that the uplifts to existing confiscation orders can similarly be redirected. However, these are subject to the same or similar limitations as the existing law. In particular, the limitation of the concepts of victim and loss being narrowly defined means that redress is not available for indirect victims. It is that gap that my Amendments 417 and 419 are intended to address.
In the light of that, I stress that my challenge to the Minister is a constructive one, because I want to put on the record the personal experience I have of the deeply conscientious engagement he has had on matters of Ukraine that I have raised with him. I thank him publicly for that, as I have done privately. Can he offer a cast-iron guarantee that the existing law, coupled with any proposed amendments the Government are putting forward, goes as far as Amendments 417 and 419, or does he accept that there is a gap? If he does, can he explain the justification for it? I beg to move.
Lord Alton of Liverpool (CB)
My Lords, it is a great pleasure to follow the noble Lord, Lord Banner. I have signed Amendments 417 and 419. The noble Lord has made a powerful, constructive and eloquent case for we should try to tackle the public interest compensation orders and deal with the gap that is left by confiscation orders, compensation orders and forfeiture, which he mentioned in his speech.
Baroness Goudie (Lab)
I support the noble Lord, Lord Banner, on Amendments 417 and 419. I will not repeat what I and my colleagues have said many times in this House. I am, however, most anxious about the compensation money that does not go to these countries and these people. We are told that it is in the Treasury in some cases; we ask about interest; and we have had a debate with, and letters from, the noble Lord, Lord Livermore. But these amendments could really change things, so that everybody would know where the interest is going, where the money for the victims is going, where it is held, how it is given, how it is sent, and who is in receipt of it. This is vital, because we can see what is happening in Ukraine, which will need much more support; and we know that this is happening in Russia and elsewhere.
Also, we work on the case of the DRC all the time; we know what is happening there and in other countries. It is vital that this be included in the Bill. It would make such a difference to so many people around the world, and it would deal with the perpetrators. So I hope the Government will look at this. Finally, I would like to thank Redress for all the support it has given to us, along with writing to the departments and so on.
Baroness D'Souza (CB)
My Lords, I had hoped to speak to this Bill on Second Reading, but was unable to do so; I hope noble Lords will allow me to jump in in Committee.
As has been pointed out elegantly by previous speakers, standard compensation orders are simply not suited to complex economic crimes such as sanctions offences. We now have these two amendments, which seek to ensure that victims are not excluded from receiving compensation simply because their harm is deemed too indirect or too complex for UK law to handle. We also know that it is highly likely that the UK will bring in yet more sanctions, particularly in the context of Russia and Ukraine. It is therefore timely to adjust our laws now.
In the comprehensive briefing that we all received from Redress, of which I am honoured to be a patron, it has been estimated that, at present, there are almost 3,000 targets of sanctions imposed by the UK Government, and more are likely to follow. However, as we have learned, at present the courts have almost no legal basis to channel any of the proceeds to Ukrainian victims, who the sanctions are intended to protect.
Achieving a way to compensate victims of Russian aggression from the criminal assets of oligarchs breaching UK sanctions will be perceived by the Ukrainians as a form of justice that is not to be sniffed at. These amendments would strengthen UK law by empowering courts to award compensation orders for
“public interest or social purposes”
by means of compensation forfeiture orders arising from criminal conduct under the UK’s sanction laws. I thoroughly support these amendments.
Lord Clement-Jones (LD)
My Lords, I will speak to Amendment 418. I also support Amendments 417 and 419, which were spoken to so well by the noble Lords, Lord Banner and Lord Alton, and the noble Baronesses, Lady Goudie and Lady D’Souza—powerful testimony. Collectively, these amendments provide a necessary pathway for turning the proceeds of international crime into a force for restorative justice.
Currently, when the Crown Court makes a confiscation order, the primary objective is to deprive a defendant of their benefit from crime. While we support this, a significant gap remains in how these recovered funds are used, particularly when the criminal conduct involves serious human rights violations, mass-atrocity crimes or grand corruption. At present, funds not directly owed to a specific claimant in the immediate proceedings often flow into the general consolidated fund.
The Minister, in his recent letter to the human rights organisation Redress—of which I know there are many supporters in the Chamber today—suggests that current mechanisms are sufficient. He argued that the UK already shares over 50% of proceeds recovered through international co-operation with other Governments. However, as Redress compellingly points out, state-level sharing is not the same as victim redress. When funds are returned to a foreign state, the level of support victims receive depends entirely on the political will and potential corruption risks within that recipient state. Victims of mass atrocities and grand corruption have a clear preference for reparations paid for by their abusers and enablers. It is a matter of human dignity, justice and their own healing journey.
Amendment 418 would give courts the discretion to direct a portion of these confiscated proceeds towards
“public interest or social purposes”.
This is not a mere accounting change but a mechanism to provide support, redress or therapeutic services to victims of international human rights violations who might otherwise have no procedural pathway to compensation. To ensure that these funds are managed with the highest level of integrity, my Amendment 418 would require the Secretary of State to establish a public purpose fund. This fund would be subject to strict regulations, operation and auditing. It would ensure that recovered sums are applied to defined social purposes before any remaining balance reverts to the state under Section 55(1) of the Proceeds of Crime Act, and it would require the court to calculate directives while respecting the duty to ensure full payment of any existing priority orders or compensation directives for direct victims.
Lord Kempsell (Con)
My Lords, I support Amendment 417, from the noble Lord, Lord Banner, to which I have attached my name. I think there is very little I can add to the technical, financial and legal arguments in support that have already been made from all sides of the Committee. I will simply confine myself to a diagonal point on the effectiveness of the UK sanctions regime, which is funded by taxpayers’ money. A huge amount of work and official time goes into ensuring that it is effectively implemented, but the funds and the proceeds remain largely in the UK. It would be a better return on the intention of that public time and effort if those funds ultimately reached victims. That is what the public expect when they support a sanctions regime.
I attach to that the recent debate over the effectiveness of sanctions in general. Surely the measures in these amendments would increase public confidence in the overall sanctions policy of the Government, if the public are able to see that victims themselves are truly the beneficiaries of funds sequestered by their use. I consider the current position to be a rationing of justice and, as Sophocles said, there is no justice if it is rationed.
Lord Garnier (Con)
My Lords, I thank my noble friend Lord Banner for introducing this series of amendments and congratulate those who supported him. This is an important public policy question that can, from time to time, raise its ugly head—although it is then ignored. I hope that, as my noble friend has so attractively argued for his amendments just now, we will gain some momentum.
I turn to a related but not exactly identical subject: compensation for overseas victims of crimes committed by British defendants. I raised that question during Second Reading of the Victims and Courts Bill on 16 December, just before Christmas. The Minister there, who is in her place—I think it is the noble Lord, Lord Hanson of Flint, who will kindly respond to this group, and I am, as always, grateful to him for bearing that burden—recognised that the question of compensation for overseas victims was a matter of some importance that she would think about. Indeed, she suggested that she might like to meet me to discuss it further. I am open to that invitation, as I am sure would be my noble friend Lord Banner.
My noble friend has opened up a discussion about a lacuna in our law, in that we fail adequately to compensate victims. The victims could be those who have suffered at the hands of the Russians or of those that we, the European Union or the United States have sanctioned. I say in parenthesis that part of my practice at the Bar involves sanctions law, so anything that legislates to increase the size of my practice is to be welcomed. More to the point, it seems to me that we have two parallel streams, which demonstrate that the way we treat victims is insufficient and inadequate.
I thank my noble friend for bringing this to the attention of the Committee and the Government more directly. I trust that, when the Minister comes to respond, he will do so positively. If he is unable to do so, I invite my noble friend to reintroduce his amendment to the Victims and Courts Bill when it comes back to us in Committee at some as yet unannounced date.
Lord Cameron of Lochiel (Con)
My Lords, I thank my noble friend Lord Banner and the noble Lord, Lord Clement-Jones, for their amendments in this group, and all noble Lords who spoke.
Amendments 417 and 419, tabled by my noble friend Lord Banner, would provide courts with the power to make public interest compensation orders during the sentencing of certain offences. He made a typically eloquent and compelling case for these amendments. He has consistently and powerfully campaigned, especially on Ukraine and the proceeds of sanctions, and I pay tribute to him for that.
Public interest compensation orders would grant the courts the ability to compel offenders to pay money to approved international or public interest bodies that support victims of serious human rights violations, such as torture or aggression. The courts would have to consider relevant factors, such as the broader human rights impact of the crime and the need to prioritise direct victims where relevant.
The amendment also lists relevant eligible recipient organisations with powers for the Secretary of State to update them, creating a structured mechanism for using the proceeds of sanctions-related crime in reparative funding for victims in the wider public interest. The amendment proposes a reasonable and practical process through which courts could divert illegally obtained funds to support victims, and I hope that the Government consider it very carefully. I look forward to the Minister’s response.
Amendment 418 in the name of the noble Lord, Lord Clement-Jones, similarly proposes a mechanism through which the courts could direct a portion of confiscated proceeds for public interest or social purposes. It is very similar in nature to Amendment 417; it differs slightly in that it specifically requires the courts to consider whether the crime in question
“involved serious human rights violations, mass atrocity crimes, or grand corruption”.
But like Amendment 417, it raises very important issues as well as a broader question: if we are to make public compensation orders, what crimes should they apply to? I look forward to the Minister’s thoughts on that matter too.
The Minister of State, Home Office (Lord Hanson of Flint) (Lab)
I thank the noble Lord, Lord Banner, for his amendments. He has had a wide level of support today from, among others, the noble Lords, Lord Kempsell, Lord Clement-Jones and Lord Alton of Liverpool, the noble Baroness, Lady D’Souza, the noble and learned Lord, Lord Garnier, and my noble friend Lady Goudie. They have all spoken well on this series of amendments. I will try to address the amendments, self-evidently, but I also say to the noble Lord, Lord Banner, in particular, that I know how committed he is to Ukraine. He has my support in addressing the viciousness of the Russian regime and the international crimes that it has committed by invading Ukraine. There are obviously a number of consequences to that, but the principles that he puts forward today could apply to a number of other regimes as well.
The amendments seek to amend the Sentencing Act 2020 and the Proceeds of Crime Act 2002 to enable courts to issue public interest compensation orders. These orders would be for public interest or social purposes to support those who may be impacted by offences under the Sanctions and Anti-Money Laundering Act 2018, including victims of human rights violations, as well as other offences added by the Secretary of State via secondary legislation. I recognise the intentions behind these amendments and affirm the Government’s support for victims of human rights abuses and our commitment to tackling economic crime.
On Amendment 417, courts already have the power to impose a compensation order on an offender, which would require them to make financial reparation to a direct victim of a specific offence for any resulting personal injury, loss or damage. Therefore, in seeking to amend the Sentencing Act to allow courts to award compensation orders for public interest or social purposes, there is a danger that it would undermine the current victim-centred approach of the legislation to date.
In passing, I say to the noble and learned Lord, Lord Garnier, that I know he is seeking a meeting with my noble friend Lady Levitt. It may be my fault that it has not happened, because of a diary clash, but we are agreeing to examine that, and either my noble friend’s office or mine will get back to him with regard to a meeting on those issues.
I recognise the critical importance of supporting victims of crime. As noble Lords will know, the victim surcharge is imposed on offenders by the court in the public interest to ensure that they hold some responsibility towards the cost of supporting victims and witnesses. The revenue raised from this surcharge is currently used to fund victim services through the victims and witnesses general fund, so the principle has been established.
The UK provides support for victims of human rights and sanctions violations worldwide. Noble Lords may wish to know that we have committed to provide £22 billion of funding to Ukraine. The Government are currently exploring further avenues—such as the extraordinary revenue acceleration loan to Ukraine—alongside our colleagues in the G7 and the EU. This has seen a $50 billion loan to Ukraine, which—this goes to the heart of the amendments tabled—is to be serviced and repaid by future profits generated from frozen Russian sovereign assets.
Lord Banner (Con)
I thank the Minister for his comments, and indeed all speakers. The force of the unanimity on this issue across the Committee is telling. I hope it is the beginning of the momentum that my noble and learned friend Lord Garnier called for.
With respect to a couple of points the Minister mentioned, the proposal would not distract from the existing law because it applies only to relevant offences, which are defined in the amendment as, essentially, sanctions and money laundering. The option of a public interest compensation order would not be available for the dodgy builder-type case that I outlined before. It would not, in fact, distract from direct victims but, in precisely those kinds of offences where the existing law is inapt, it would provide for a remedy for victims. It is true that this category is relatively narrowly defined, but it is precisely that category of offences where the law is currently deficient.
I therefore urge the Minister and officials to give this further consideration. If he is not sick of meeting me on Ukraine-related matters, I am very happy to meet him again to talk through how the wording could perhaps be tweaked to deal with some of the issues he has outlined. If we cannot reach agreement, I would be inclined to bring this back on Report, and/or in the context of the Victims and Courts Bill, as my noble friend mentioned. Against all that background, for now, I beg leave to withdraw the amendment.
“Duty to review treatment of childhood convictions and cautions(1) Within a year of the day on which this Act is passed, the Secretary of State must lay before Parliament a report on the management of childhood convictions and cautions.(2) The report must consider at least—(a) the prevention of automatic disclosure of childhood conditional cautions;(b) the prevention of adult treatment of offences committed by individuals who were minors at the time of the offences in question taking place;(c) the range of childhood convictions which are removed from standard and enhanced checks after five and a half years.(3) In considering the areas outlined in subsection (2), the report must consider the policy merits of reform of the existing management of childhood convictions and cautions, and which actions would be required in each case for reform to take place.”Member’s explanatory statement
This amendment would require the Secretary of State to publish a report reviewing how childhood convictions and cautions are handled within one year of this Act being passed.
Lord Marks of Henley-on-Thames (LD)
My Lords, in this group on childhood convictions, Amendment 420 in my name and that of my noble friend Lady Brinton seeks a general review and report on the management of childhood convictions and cautions. Later in the group, there are four specific amendments. Three are tabled by the noble Lord, Lord Ponsonby of Shulbrede, with all his wide experience of working as a magistrate, particularly in the youth court, and is also in the names of the noble Lords, Lord Spellar and Lord Hampton; the other is tabled by the noble Lord, Lord Carter of Haslemere. I support all four specific amendments. They are all consistent with our general proposition that we should be very careful before we mark people out with a criminal record for mistakes committed when they were children.
I am grateful for the briefing we have received from Unlock and Transform Justice. They make a number of helpful proposals for reform. Our amendment calls for a report to be commissioned and laid before Parliament within a year to enable Parliament to be fully informed on the issues and possible reforms in this difficult area —and it is a difficult area. We must not only consider the position of young people who acquire criminal records that may blight their futures but balance their position against the need to protect future employers and others who might be affected by repeat offences in the future, in particular vulnerable children, and society as a whole.
The position of children in England and Wales is exacerbated because we have a very young age of criminal responsibility—10 years old—with the result that, in this jurisdiction, children aged between 10 and 17 can be convicted of criminal offences. This compares with the Netherlands, Belgium, and Scotland, which raised the age of criminal responsibility in 2019, and with Germany, Spain, and Italy, where it is 14, along with many other countries. The UN Convention on the Rights of the Child requires states to set a minimum age of criminal responsibility without expressing what that should be, but the UN Committee on the Rights of the Child urges states to raise the age to 14.
The reasons why this matters are not confined to the unfairness of punishing children for crimes when they lack the maturity or responsibility to be held criminally responsible by state laws. The unfairness extends to exposing them to the long-term disadvantage of being scarred with criminal records acquired for childhood offences for longer than is necessary for the protection of the public and often well into their adulthood.
There is a wealth of evidence of the ages at which young people’s brains and cognition mature. Although it differs, the best evidence provides that full maturity is not reached until the early 20s and that full responsibility does not develop until the late teens at least. That matches the obvious and instinctively understood reality that children and young people are that much more likely to get into trouble than adults. Yet, we do not presently match our law on the acquisition, collation and disclosure of criminal records to that obvious reality.
There are many injustices. Children from disadvantaged backgrounds and minority communities are much more likely to acquire criminal records than children from more privileged backgrounds. There is a vicious circle in operation here. Disadvantaged children are overwhelmingly more likely to be in care, to be excluded from school and to develop personality disorders and other mental health issues. Those factors make them significantly more likely to commit offences and get into trouble with the law.
By saddling children with criminal records, we make their disadvantages worse in securing employment or training opportunities, and even in further education. Fines and community orders generally stay on a child’s record for two years on a basic check, and maybe for much longer if an enhanced check is sought, which it is likely to be for any work in a school, for example.
It is not just convictions, though, that damage children. Cautions in childhood can prevent children and young adults securing employment. A basic DBS check provided by the Disclosure and Barring Service, which it is open to any potential employer to seek, will disclose youth conditional cautions, which are intended to be an alternative to formal criminal proceedings. Such conditional cautions can be given to anyone aged between 10 and 17 and avoid the need for criminal proceedings. That is clearly a sensible strategy to provide an alternative criminal justice solution to avoid the need for proceedings and a formal conviction. However, the caution will stay on the child’s record on a basic DBS check for three months or until the conditions have been complied with, whichever is earlier. Even in that time, the caution is capable of being really damaging to that child’s prospects.
Then again, the effect of court backlogs has been, as we know, that convictions are delayed. Such delays may last from the date when a person charged with an offence was a child to a date long after that child’s 18th birthday, so they are then an adult. So, a person can commit an offence as a child and be convicted as an adult but, for the purposes of the Rehabilitation of Offenders Act, the date when the conviction becomes spent depends on the date of conviction rather than the date of the offence. So, through no fault of their own, children’s convictions for offences that ought to have been spent are unspent for far longer.
This is an area in serious need of review. We need wider consideration of all the issues concerning the treatment of criminal records acquired for childhood offences, including: whether and for how long children’s offences should stay on their records; how far the seriousness of the sentence passed should be the sole or even the main criterion for convictions becoming spent; what other criteria there should be; whether conditional cautions should be treated as giving rise to a criminal record; how far it should be open to children convicted of offences committed in childhood to apply for their records to be expunged—when, to whom and on what basis; and how far such offences should still be disclosed on standard and enhanced higher-level DBS checks.
These are serious issues affecting many lives that are currently blighted by a past that sticks with them, and they are important to society as a whole. I beg to move.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I open by thanking the noble Lord, Lord Marks, for so fully setting out his and the other amendments in this group. I agreed with his opening points, and I support all the amendments—I suspect all the speakers in this short debate will support them too. In a sense, they offer a range of possible changes, from a broad review to addressing specific anomalies, which the noble Lord did.
I am absolutely confident that our Lord Chancellor would be very sympathetic to these amendments. I know that he has said in recent speeches that he wants to look at criminal records, and those for young people in particular. That is an excellent starting point, and I hope that the Minister can reinforce that point when she comes to sum up.
Touching on the amendments in my name, I thank the noble Lord, Lord Hampton, the noble Baroness, Lady Sater, the noble and learned Lord, Lord Garnier, and my noble friend Lord Spellar, who will speak on these matters as well. My Amendment 476 seeks to prevent the automatic disclosure of childhood conditional cautions in a DBS check by amending the definition of a criminal conviction certificate in the Police Act 1997.
My Amendment 477, which was touched on by the noble Lord, Lord Marks, addresses a clear anomaly in the law as it stands. The amendment seeks to ensure that the criminal record for a juvenile is dated from the offence rather than the conviction date. As the noble Lord, Lord Marks, said, these could be really quite far apart, so the way the conviction is treated will be different, because the young adult will be convicted even though the offence was committed when he was a youth.
Amendment 478 seeks to ensure that custodial sentences, except for the most serious sentences, will be removed from an individual’s criminal record after five and a half years if the offence was committed before the age of 18.
Sitting here earlier today and at previous Committee sittings of this Bill, the noble Lord, Lord Young of Acton, drew something to my attention which I was not aware of involving non-crime hate incidents. He pointed out that, for youths, a non-crime hate incident is treated the same as for an adult, and that means a six-year retention of the information. That is another example of an anomaly, and I hope, when the Home Office comes to report on non-crime hate incidents, it can ensure that that is tied up with the Ministry of Justice considering the way youth convictions are looked at for DBS checks.
I also want to say something about Amendment 486D, in the name of the noble Lord, Lord Carter. That is specifically about transport-related convictions of young people. I support what he is going to say, I am sure, but I have to say that, as a youth magistrate for nearly 20 years, I cannot remember ever seeing a young person in court for evasion of a fare. If he has figures—he is nodding his head—I will listen to them with interest, because it is not my personal experience of what I saw in youth court. I tend to see much more serious cases, but nevertheless I will listen to and support what he says with interest.
The overarching point is that this is a difficult area. It is very easy to point out anomalies. I am sure that we have a very sympathetic Lord Chancellor, and I really hope that the Government seize this opportunity to address the overarching issue of the way we treat our young people, so that they are not held back when they go into the adult world and the world of work.
Lord Spellar (Lab)
My Lords, I support the amendments standing in the name of my noble friend Lord Ponsonby and the noble Lord, Lord Marks. I have been arguing for some years in the House of Commons that the DBS scheme has, frankly, run out of control. I can quote from June 2020, when I said to the then Prime Minister Boris Johnson that it was
“a major obstacle to people turning their lives around. It is inefficient, unfair and, frankly, discriminatory. The Lammy report dealt with this in some depth nearly two years ago, so we do not need any more … inquiries. We need action”.
Reference has been made to the impact in different parts of the country. In smaller police forces, not only are cases often not taken to court but cautions are not issued, and instead people are very informally told to mend their ways. In cities, it can often be very different, and this also still lies on the record. The then Prime Minister Boris Johnson said in his reply to me:
“Any MP will have had very hard cases caused by the DBS system”.—[Official Report, Commons, 24/6/20; col. 1309.]
I think there is a general recognition at the political level that this is a problem. I have to say from all my experience that there is deep inertial resistance inside the Civil Service to changing this, and I urge Ministers vigorously to overcome it, particularly given the report done by David Lammy, who was commissioned by the then Conservative Government to look into this area.
We also saw similar problems with the first elections for police and crime commissioners. Unwisely, a requirement was put in that someone should have no criminal conviction. We had a candidate who had to stand down as he had been convicted for possessing an offensive weapon when he was 13. We had another candidate who had committed a minor offence 22 years previously. These are people with long records of public service, and in no way should that have been held against them.
Whatever steps we take should also relate to proportionality and relevance. When I was a Transport Minister, there were proposals to introduce DBS checks at airports—I fully understood that—but if somebody had a conviction for an assault outside a nightclub in Southall on a Saturday night, I was not really worried if he was throwing my bags around in the luggage section. I would have been concerned if he had had a conviction for theft or for dealing in stolen goods. That also needs to be taken into account and be put right.
As a constituency Member of Parliament, I also had a woman who had been given a suspended sentence for an assault, age 18, in an argument with another girl over a partner. In her 40s, this was still preventing her. This does not just affect young people; it blights people right the way through their lives—and not just their lives but their children’s lives, as they are not able to provide support for them and have all the frustration of not developing their skills of life. It does not let people move on but also deprives the workforce of talent.
We are told sometimes that DBS checks and the ongoing system are fine, and that employers will look at them and take proportional action. They do not. Once a DBS check comes back with anything on the record, the fact is that people automatically get dropped. What is even more outrageous is that those same employers then go bleating to government, saying, “We can’t get workers here”, and so we have to bring them in from abroad. That was one factor that led to the huge surge of care workers being brought into this country in recent years—a considerable amount of exploitation and fraud accompanied it, by the way. At the same time, people were being kept off work, on benefits, not able to provide for themselves or their families.
My plea to the Committee is to support change and give people hope that they can turn their lives around, to take the opportunity to reinstate what I would argue were the principles of the Rehabilitation of Offenders Act when it was first brought forward, and to make some progress. We may need to make further changes in the future, but these amendments provide a very good start.
Lord Garnier (Con)
My Lords, I am very glad that I waited for the noble Lord, Lord Spellar, to contribute to the debate, as I agree with just about everything that he has said. Noble Lords may say that that is not terribly difficult, given that I have co-signed the amendments that he has signed. I share his view that —I am paraphrasing what he said and will probably get it wrong—reviews can sometimes go nowhere. Having listened to him and to the noble Lord, Lord Ponsonby, I am much attracted to our amendment.
Equally, having heard the noble Lord, Lord Marks, introducing his amendment, and having studied it a little more closely, I am attracted by his idea that the review should look into what I think we all admit is a quite complicated area, in public policy terms, of discussion. I am attracted to the proposal from the noble Lord, Lord Marks. If this amendment is accepted by the Government, we would have a report within a year of the Bill’s enactment—we could be talking about, say, June 2027, by the time the review has taken place and the Government have reported. Further, subsection (2) of the proposed new clause in Amendment 420 begins by saying:
“The report must consider at least”,
and then identifies three broad subject areas. It would be able to take on board the points that the noble Lords, Lord Ponsonby and Lord Spellar, have so far outlined.
A combination of these four separate proposals need to grip the Government’s attention, so that we can come back with a coherent, thought-through and workable set of policies that recognise the need for these two public interests to be borne in mind; that is to say, the protection of the public and employers and so forth, set against the need to allow youngsters who may have made some terrible mistakes to get on and live their lives.
I will finish with an anecdote. I used to make a habit of visiting prisons and so forth, when I was shadow Minister of Prisons—before the ark was set afloat. The adult male prison population was once largely aged between 21 and 30. It was an unscientific approach but I noticed that, since around the first decade of this century, the average age of the adult male prison population has risen, largely because of the conviction of historic sex offenders. People have been convicted in, say, the 2010s, in their 60s or 70s, for offences committed when they were youngsters, so the average age of the prison population has to some extent risen. It is a generalisation, and something that the review could look into, but, by and large, people grow out of criminal behaviour. Once they have found a partner and somewhere to live, and got a job—as long as they have not been ruined by Rehabilitation of Offenders Act antipathy—they will get on, earn a living and live their lives. The stupidity of their teenage years falls away behind them, and it should be allowed to stay there.
Lord Bailey of Paddington (Con)
My Lords, I support these amendments. As is my way, I must sound a note of caution for one group of people. I know that many noble Lords have a problem with our very low age of criminal responsibility, but it affords a level of protection to young children being groomed for gangs. We need to bear that in mind.
I have great sympathy for these amendments. The noble Lord, Lord Spellar, spoke about the Lammy review. I was on the Lammy review. I ran a job club for over 12 years, and many of the young men I dealt with were unable to seek employment because of what we used to call a blip when they were younger that was still appearing on their DBS. That small blip often drove them to much more serious crime, because they were older and needed to raise more money.
We should do a review, because it is a complicated area, but there are two things to focus on. First, returning to my theme, the single biggest driver of crime is the idea that you have got away with it. If we are going to remove some of the consequences, we need to think clearly and carefully about how that will be perceived by people who are involved in criminal activity—particularly if they are young and do not have all the experiences to risk-assess their own behaviour. We must bear that in mind, because, inadvertently we might be encouraging them to approach criminal behaviour. The myth on the street will be that when you are 18, it is wiped out anyway. We might argue about the nuance of what we are prepared to wipe out or not, but that will not be the conversation on a dark night in the park when the boys are planning their next manoeuvre. It is important that we bear that in mind.
Secondly, there are people in gangs whose sole job is to recruit young people. One of the big things they say to those young people is, “You are too young to go to court”. We have to be careful about making that true, or at least appear to be true. Removing these spent convictions would be such a powerful thing to help people move on, and I support it, but let us think very carefully about how we talk about it, where we draw the lines, how we explain it and how it is enacted in reality rather than just in concept as we sit in this Chamber.
Baroness Sater (Con)
My Lords, I will speak briefly to all these amendments, particularly Amendments 476, 477 and 478. These amendments highlight how the system of criminal record disclosure, particularly as it relates to children, is complex and very confusing. I am an advocate for criminal record reform, having been a youth magistrate for over 20 years and having been on the Youth Justice Board. Those roles have consistently demonstrated to me how decisions made in childhood, often in relation to relatively minor offences, can have consequences that extend well into adult life, as we have heard this evening.
As noble Lords will know, I recently tabled an amendment to the Sentencing Bill to address the anomaly in youth sentencing whereby the first court appearance, rather than the date of the offence, determines whether a young person is treated as an adult. I am therefore very conscious of the unfair impact these technicalities beyond a child’s control can have on their future.
Although we have had success in reducing the number of children in custody because we wanted to keep young people out of prison, we have at the same time increased the threshold of seriousness of offending in these disposals of conditional cautions over a number of years.
I know that the Justice Secretary has recently acknowledged publicly that aspects of the criminal records and disclosure system are in need of reform. Rehabilitation is about giving people a chance to change, and, where appropriate, we should work to ensure that childhood mistakes do not turn into lifelong punishments, giving them the opportunity to get on with their lives.
I am also attracted to the amendment from the noble Lord, Lord Marks, to which my noble and learned friend Lord Garnier referred. It is very important that the Minister view these amendments on childhood as an opportunity to reflect on a broader review of criminal records and the DBS disclosure system, which might now be appropriate.
These amendments highlight just how complex the system has become. Ensuring that the system is fairer, while keeping in mind the importance of rehabilitation and protection to the public, would, in my view, be a worthwhile objective.
Lord Hampton (CB)
My Lords, I rise to speak briefly to Amendments 476, 477 and 478 tabled by the noble Lord, Lord Ponsonby, to which I have added my name. I am also sympathetic to the other amendments in this group and declare, as ever, that I am a schoolteacher in Hackney. I would also like to acknowledge the help of Transform Justice.
I rather innocently assumed that one of the cornerstones of the justice system in this country is rehabilitation, but this does not seem to be the case with our young people. As we have heard, every year in England and Wales there are 13,000 convictions of children aged 10 to 17, who are disproportionately from poor backgrounds, minoritised communities, in care or excluded from school. Those convicted acquire criminal records which only add to their disadvantage.
Some of these criminal records remain through life. A child charged for affray for a playground fight would have to disclose that for ever on a standard and enhanced DBS check. Also, currently, as we have heard, a criminal record is acquired on conviction rather than according to the date of the offence itself. This means that many people commit offences as children but acquire an adult criminal record because, through no fault of their own, the hearing at which they are convicted happens after their 18th birthday. This situation has got worse because of the recent delays in the court system. This is patently absurd.
As the noble Lord, Lord Marks of Henley-on-Thames, has said, brains do not mature until people are well into their twenties. Also, research has shown that teenagers take more risks when they have an audience. As I see in the playground every week, children are immature and often reckless, not seeing the consequences of their actions.
Our criminal records should allow for rehabilitation in order to allow young people to move on from childhood mistakes. These amendments would mean that young people should be able to be free of their childhood offences at a specific interval after they have finished their sentence, so they do not have to explain old and no longer relevant childhood offences to potential employers—even if they manage to get as far as an interview. We are not talking about the most serious crimes here.
For everyone else, these amendments would mean that childhood offences should automatically be taken off the records five and a half years after conviction. We also propose that a conditional caution, when accepted by a child, should not appear on the records. We propose that those whose conviction is delayed until after their 18th birthday should not acquire an adult criminal record.
With the number of NEETs approaching 1 million, we should be doing everything we can to remove barriers to employment and let rehabilitation of the young be truly part of the justice system.
Lord Carter of Haslemere (CB)
My Lords, I am going to speak to Amendment 486D, and I support all the other amendments in this group. I am very grateful to the noble Lord, Lord Marks, for his compelling introduction, and for the other powerful speeches. You may wonder why I have tabled this very specific amendment. The best way I can relate it is to tell a brief story. I was truly shocked when a friend drew my attention to an incident involving his teenage daughter a few years ago, but which, I believe, affects many of our young people, receives very little publicity and ruins many lives.
My friend’s daughter had arrived at a railway station to find that the ticket machines were not working and there was a long queue for the ticket office. Desperate to catch a train to get her vaccinations for charitable work abroad, she foolishly jumped on a train without a ticket.
When she got out at her destination, she offered to pay at the barrier. The inspector told her to get a ticket at the ticket office. However, there was a long queue, so, knowing that she would not have time to do that, she went to the machines, but she found that she could not get a machine ticket for a journey from the station where she had left to the station she had arrived at.
Very naively, she thought she would therefore get the ticket after her appointment for vaccinations, and she left the station in a state of some panic. It was then that she was approached by the ticket inspector and told she was to be prosecuted under Section 5(3)(a) of the Regulation of Railways Act 1889 for travelling without paying the fare with intent to avoid payment. It was the first time she had ever done something like this. Her ticket would have cost £3.20. That is less than a cappuccino coffee.
I discovered that, if convicted, she might not only face a fine of up to £1,000 or imprisonment for up to three months, but her conviction would be recorded on the Police National Database and future potential employers would see it after a basic criminal records search for up to six years and for up to 11 years, I believe, after an enhanced check. Through just one moment’s teenage lack of judgment, her prospects of obtaining a job and a career would be blighted during a crucial period when most young people are trying to get on the career ladder—all for a £3.20 fare.
Acting as a friend, I had many exchanges of correspondence with the rail company, all to no avail. The upshot was that I ended up joining her and her desperately worried parents at the local magistrates’ court for her hearing, where I intended to plead the mitigating circumstances of her case. To my horror, I discovered she was one of dozens of other children and young people queuing up that morning, charged with exactly the same offence, which was a regular occurrence at that magistrates’ court, I found. It was nothing unusual. I managed to persuade the train company to drop her case if she paid a fine, but thousands of other young people are not so lucky.
This was a young teenage woman who was on an important journey in connection with unpaid charitable work abroad. Her heart was in exactly the right place. On the spur of the moment, she panicked and thought she might miss her train. She had tried to pay the fare at the train barriers when she arrived, so she emphatically did not intend to avoid it. Of course—and I emphasise this—she thoroughly deserved the fine, but did she really deserve the likely prospect of being unable to obtain a decent job for the next six to 11 years, all for a one-off, first-time offence relating to a £3.20 train ticket? She was no serial offender.
The charity FairChecks has demonstrated that, with a criminal record, young people can be locked out of future employment opportunities and even voluntary work. Research shows that at least 30% of employers automatically exclude a candidate with an unspent conviction. But the facts show that, as we have heard, young peoples’ brains are still developing, which makes them more impulsive and less able fully to understand the consequences of their actions. It is therefore crucial that they be given the opportunity to move on from their mistakes without carrying the weight of those childhood errors during early adulthood. In all honesty, might not many of us say, “There but for the grace of God go our children”?
My amendment would give our children a second chance if they are found without a valid ticket on the railways. They would still be liable for a penalty fare or a fine but, provided it was a first offence, their lives would not be ruined by being given a disclosable criminal record. I emphasise that my amendment would not apply if they were caught a second time. In those circumstances, they would not have learned from their mistakes and potential employers would have just cause in wanting to know they were dishonest.
Baroness Brinton (LD)
My Lords, I have signed my noble friend Lord Marks’s Amendment 420 and thank him for his excellent explanation. I am also reminded that our noble friend Lord Dholakia has campaigned for decades for a review of the way in which society deals with children in the criminal justice system. His principal concern, and the subject of a number of Private Members’ Bills, was on increasing the age of criminal responsibility, and we will address that specific issue in the next couple of Committee days. He also expressed some concerns about the treatment that children and young people who had entered the criminal justice system would face later on.
Reference has been made to David Lammy’s review. I also remind the Committee about Iain Duncan Smith’s report for the Centre for Social Justice in 2012, in which he said:
“There is now a significant body of research evidence indicating that early adolescence (under 13-14 years of age) is a period of marked neurodevelopmental immaturity, during which children’s capacity is not equivalent to that of an older adolescent or adult. Such findings cast doubt on the culpability and competency of early adolescents to participate in the criminal process and this raises the question of whether the current MACR”—
minimum age of criminal responsibility—“at ten, is appropriate”. I think that also reflects on cautions and convictions for that age group, although I recognise that my noble friend’s amendment goes right up to the end of childhood.
All the amendments in front of us look at how convictions and cautions are handled and how they are disclosed. Mention has already been made of the organisation FairChecks. It has called for a major review of the criminal records disclosure system. Interestingly, it produced the same evidence as Iain Duncan Smith about the capacity of people of this age to understand and take responsibility for their actions. As has already been mentioned, young people hoping to move on suddenly discover that in trying to get work or a promotion they have to disclose their criminal records, and too often, on top of the almost inevitable rejection letters, their shame emerges once again, destroying their chance of creating a new life once they have served their time.
FairChecks proposes that there should be an automatic disclosure of a caution in criminal records, the slate should be wiped clean for childhood offences and we should stop forcing people to reveal short and suspended prison sentences for ever. But, it says—as has every other speaker so far today—safeguards must remain in place for more serious offenders in order to protect the public. At the same time, it would give individuals the chance to move beyond their childhood criminal record so they could get work and forge a new life as an adult, and the first steps towards that would be a review. I hope the Minister will look favourably on Amendment 420.
Lord Cameron of Lochiel (Con)
My Lords, I thank the noble Lord, Lord Marks of Henley-on-Thames, for his Amendment 420. In general, of course, these Benches abide by the notion that policy and practice should be guided by the feedback of evidence and outcomes, and the amendment would support that objective with regard to childhood convictions and cautions. I believe the data that currently exists on this would have to be thoroughly analysed to determine whether the measure is necessary, and I hope the Minister can shed some light on that existing evidence in her response.
We have great sympathy with the general thrust of Amendments 476 to 478. I have some reservations about Amendment 476, in that we have already removed the automatic disclosure of youth cautions on DBS certificates and I am unsure whether that should be extended now to the more serious youth conditional cautions, which of course include duties alongside the original caution. But I completely understand the principle behind Amendment 477, in the name of the same noble Lords, and why the legislation as currently drafted may lead to individuals being treated as adults when they commit an offence as a juvenile—all the more so given the backlog that the courts are currently suffering and delays in the court system, as the noble Lord, Lord Hampton, pointed out. Likewise, I see the rationale behind Amendment 478, which seeks to ensure that custodial sentences received by youths are removed from their criminal records after five and a half years.
On Amendment 486D in the name of the noble Lord, Lord Carter of Haslemere, as others have said, children of course make mistakes, and there is a spectrum of offences, where avoiding a fare payment and travelling without a ticket is certainly on the less severe end. There is plainly a case that, as first-time offences, these do not warrant a criminal conviction certificate being issued.
My only point in conclusion is to echo what my noble friend Lord Bailey of Paddington said: we have to be a little careful not to increase the incentives for petty crime. As he pointed out, that can perhaps lead—especially with regard to criminal gangs—to a potential for danger. With that said, I look forward to the Minister’s response.
The Parliamentary Under-Secretary of State, Ministry of Justice (Baroness Levitt) (Lab)
My Lords, I thank the noble Lords, Lord Marks of Henley-on-Thames and Lord Carter of Haslemere, and my noble friend Lord Ponsonby of Shulbrede for tabling Amendments 420, 476 to 478 and 486D. They form a formidable trio in terms of not just their expertise but the respect that they rightly command in your Lordships’ House.
A number of noble Lords have raised the question of the age of criminal responsibility. I hope I will be forgiven for not addressing that now; I know for certain that we will be addressing it at least twice in the days and weeks to come.
The Government acknowledge the principle that underpins these amendments—namely, that having a criminal record will have a significant impact on children and that such a record can, in some circumstances, follow them into later life as adults, again with profound consequences. That said, as I think all noble Lords agreed, it is critical that our criminal records disclosure regime strikes the right balance. On the one hand, we want to support people who have committed criminal offences, either some time ago or when they were very young, to be able to move on with their lives. But there is also a need for appropriate risk management in the public interest, as well as to safeguard the most vulnerable.
I will deal first with Amendments 420 and 476 to 478. The existing regime helps employers make informed recruitment decisions through the disclosure of appropriate and relevant information. This will mean that some serious offences, even when committed as a child, will always need to be disclosed, particularly where a person is applying to work with children or vulnerable adults. As some of your Lordships will be aware, in his recent independent review of the criminal courts, Sir Brian Leveson recommended that the Government review the Rehabilitation of Offenders Act 1974. In the Statement I made to your Lordships’ House on 2 December, I said that we will consider opportunities to simplify the criminal records regime to ensure that it is both clear and proportionate, particularly in relation to childhood offences.
I would be very happy to meet with any of your Lordships over the coming weeks to discuss this in more detail. It is of the utmost importance to the Government that we work together to ensure that we get this right. Like the noble Baroness, Lady Brinton, I was very struck by the observations made by the noble Lord, Lord Bailey of Paddington, that this is not always as straightforward as it might appear, hence the need to make sure that we do this carefully, in a structured and thoughtful way. As I said, I would be delighted to see any of your Lordships. Given the offer made by my noble friend Lord Hanson in the previous group, the noble and learned Lord, Lord Garnier, and I may be seeing rather more of each other than perhaps he had intended—but it is always a pleasure on my part.
Turning to Amendment 486D, I am very surprised to hear what the noble Lord, Lord Carter, says because the Government’s view echoes what my noble friend Lord Ponsonby said: children are generally treated leniently when fare evasion occurs. This offence is most commonly dealt with by transport staff, so usually no question arises of a child acquiring a criminal record for fare evasion and similar offences. The police usually become involved only in cases of a refusal to pay for a ticket, for repeat offences or because of some other complicating factor. Even when the police become involved, this does not usually result in a prosecution taking place because the Code for Crown Prosecutors requires prosecutors to consider, as a specific public interest factor tending against prosecution, where a child is young or where it is a first offence.
Police officers can give out-of-court disposals, which allow them to respond to low-level offending proportionately and effectively. These out-of-court disposals, of which there are a variety, provide opportunities for children to make reparation and restoration to victims, and to be diverted into courses or services which can help to change their offending behaviour. Most types of out-of-court disposals are not automatically disclosed on criminal record certificates.
The Government believe that it would be very unusual for a child or young person to get a criminal conviction for this type of offence but, were that to happen, the disclosure time limits under the Rehabilitation of Offenders Act are very different from those that affect adults. Rehabilitation periods for children are typically half the length of those for an adult. For example, if a court were to impose a fine for fare evasion, there would usually be a requirement that the child disclose their conviction for only six months, as opposed to the case of an adult, who would have to disclose it for a year.
For all these reasons, under the existing legislation, the Government’s view is that there is a very small chance of a child who is a first-time offender getting a criminal record for a fare evasion offence in the first place, and an equally small chance of such a conviction following them into adult life. I will, however, make inquiries and write to the noble Lord giving such statistics as I am able to find.
Lord Carter of Haslemere (CB)
I am extremely grateful. To some extent mine is a probing amendment—I need more facts and evidence around this—but the Minister referred to the Code for Crown Prosecutors. The cases I spoke about were prosecuted by the train operating company. I am not really convinced that it had even heard of the Code for Crown Prosecutors; judging from all the correspondence I had with it, I do not think it had, to be honest. I believe there is something there to be investigated more closely, because I saw the evidence with my own eyes.
Baroness Levitt (Lab)
I do not think that I can improve on what I have said. I will make inquiries into the statistical evidence that we hold and write to the noble Lord.
I reiterate that I am very happy to meet any of your Lordships, including, of course, the noble Lord, Lord Carter, ahead of Report to discuss these issues in more detail. In the meantime, I hope that the noble Lord will be content to withdraw his amendment.
Lord Marks of Henley-on-Thames (LD)
My Lords, I am very grateful for the support that I have had from across the Committee, and for the very detailed and helpful response from the Minister. I will gladly take up her invitation to have a discussion. It is important that the Government intend to review this area, at least in part. If we can commission a review of the sort that I have suggested, I would be very pleased to help with that. On that basis, I am happy to withdraw my amendment.
Lord Cameron of Lochiel
“Child cruelty offences: notification and offender management requirements(1) A person (“relevant offender”) is subject to the notification requirements of subsections (2) and (3) for the period set out in subsection (4) if the relevant offender is convicted of an offence listed in subsection (6). (2) A relevant offender must notify to the police within the three days of the time of their conviction or their release from custody, and annually thereafter, providing —(a) the relevant offender’s date of birth,(b) their national insurance number,(c) their name on the notification date and, where using one or more other names on that date, each of those names,(d) their place of residence on the date of notification,((e) the address of any other premises in the United Kingdom at which, at the time the notification is given, they regularly reside or stay, and(f) any information that may be prescribed in regulations by the Secretary of State.(3) A relevant offender must notify to the police, within the period of three days beginning with the event occurring, about—(a) their use of a name which has not been notified to the police under subsection (2);(b) a change to their place or residence;(c) any other prescribed change of circumstances as defined in regulations made under this section.(4) The dates of discharge from notification requirements under this section are the same as those set out in Section 88B of the Sexual Offences Act 2003.(5) The information required by subsections (2) and (3), once received, must be—(a) monitored regularly by the police and probation service, and(b) retained for the purposes of offender management.(6) The relevant offences are—(a) causing or allowing the death of a child or vulnerable adult, or allowing them to suffer serious harm (section 5 of the Domestic Violence, Crime and Victims Act 2004);(b) child cruelty, neglect and violence (section 1 of the Children and Young Persons Act 1933);(c) infanticide (section 1 of the Infanticide Act 1938);(d) exposing children whereby life is endangered (section 27 of the Offences Against the Person Act 1861);(e) an offence under sections 4, 18, 20, 21, 22, 23 or 47 of the Offences Against the Person Act 1860, if the victim is under the age of 16;(f) an offence under any of the following provisions of the Female Genital Mutilation Act 2003—(i) female genital mutilation (section 1);(ii) assisting a girl to mutilate her own genitalia (section 2);(iii) assisting a non-UK person to mutilate overseas a girl’s genitalia (section 3);(g) cruelty to children (section 1 of the Children and Young Persons Act 1933).”Member’s explanatory statement
This new clause would create notification requirements for people convicted of child cruelty, analogous to the Sex Offenders Register. Their information and personal details would be kept on record by the police for the purposes of offender management, with the aim of reducing the risk to children from future offences.
Lord Cameron of Lochiel (Con)
My Lords, I am pleased to move Amendment 420A. Although it is in my name, it is a product of tireless campaigning from my honourable friend Helen Grant MP. I thank her for her long-standing commitment to this issue. It is thanks to her unwavering commitment that we are one step closer to making a child cruelty register a reality.
I thank the Government for their ongoing communication with us on this important topic and their assurances that they would like to implement a policy that supports a child cruelty register. When this amendment was tabled during the passage of the Sentencing Bill in your Lordships’ House, government officials requested that it be reserved for Home Office legislation, rather than that of the Ministry of Justice. That is why I am moving this amendment today.
This proposed register would be very similar in kind to the register for convicted child sex offenders, for whom notification requirements already exist. It would ensure that those convicted of cruelty to vulnerable children must notify the police of their home address and other relevant details following their release from prison. The register would act as a safeguard by providing the police with the oversight needed to manage offenders and reduce the risk to children. It would mean that those who commit cruelty to children in a non-sexual manner cannot simply disappear back into the community.
These provisions already exist for sex offenders, and we see no reason why they should not similarly pertain to those convicted of child cruelty. Although the offence is different, its effects are detrimentally serious in nature. Child cruelty is a heinous crime that can have a lifelong impact on victims and affects the most vulnerable individuals in society.
Common sense requires that those who commit crimes such as allowing the death of a child, neglect of a child, violence towards a child, infanticide or female genital mutilation should not be able to slip under the radar in local communities once their custodial sentence is spent. There should be a centralised mechanism for the police to know where these people live. This is particularly so given that, in the vast majority of child cruelty cases, the offender has parental responsibility for the victim. They are therefore likely to have connections to the child’s guardian, who, in many cases, will be a family member.
There is a clear gap in the child protection systems that unnecessarily endangers children. The child protection system must exist to free children from the conditions of cruelty towards them, but it must also contain preventive measures to ensure that children are not placed in such appalling situations. Child cruelty offences have doubled in the past few years; now more than ever, it is important to act swiftly to curb this rise. Given the Government’s previously stated support for this measure, I hope that the Minister will be equally able to offer her support today.
Baroness Brinton (LD)
My Lords, my colleagues in the Commons very much supported Helen Grant in her campaign for this amendment. I pay particular tribute to Jess Brown-Fuller MP. It is very helpful that it has been directed to this Bill, and we on these Benches are very pleased that the Opposition have laid the amendment to this Bill.
It is getting late, and I will not speak for very long. The only other people we need to credit are Tony Hudgell and his parents. After being taken away from his birth parents, he has lived for many years with his foster parents, who he describes as his parents. He has endured 23 operations after injuries that resulted in him losing both legs when he was a toddler. That is the sort of cruelty—although unusually bad in this case—that the amendment is intended to address. For all the reasons that the noble Lord, Lord Cameron, outlined, we absolutely support the progress of this amendment, and we hope that the Government will look favourably on it.
Baroness Levitt (Lab)
My Lords, notification requirements received attention during the passage of the Government’s Sentencing Bill. I am grateful to the noble Lord, Lord Davies of Gower, for ensuring this important matter remains firmly on our agenda. I join the noble Lord, Lord Cameron of Lochiel, and the noble Baroness, Lady Brinton, in paying tribute to Helen Grant MP and to Paula Hudgell, both of whose tireless campaigning has done so much to advance the protection of children. As my noble friend Lord Timpson set out in Committee on the Sentencing Bill, this Government are committed to safeguarding children and ensuring robust measures are in place to protect them from those who seek to cause them harm. We are working hard to consider the best way to manage such offenders effectively.
We are unable to support the amendment at present, as further work is needed to determine the most effective way to strengthen offender management. We need to consider fully all aspects of implementation when it comes to adding notification requirements to a new cohort of offenders, particularly in light of the Government’s recently published violence against women and girls strategy, which sets out significant reforms to offender management.
It is right that we take the time to understand the potential impact of these proposals. One of the issues is that adding notification requirements to a new cohort of offenders would involve significant costs for policing. For example, notification duties such as taking biometric data, verifying personal details, recording changes, conducting compliance visits and managing ViSOR data must all be absorbed into the general workload of the police. One of the tasks for the Government is to reflect that this could mean shifting resource from other important areas of police work.
I can reassure noble Lords, however, that since December, Home Office and Justice Ministers have met regularly to discuss options in this space and have held initial discussions with national policing representatives. So, I can add my reassurances to those already given by my noble friend Lord Timpson: Ministers will continue to pursue this issue with vigour. With these reassurances, I hope that at this stage the noble Lord will feel able to withdraw his amendment.
Lord Cameron of Lochiel (Con)
My Lords, I am grateful both to the noble Baroness, Lady Brinton, and to the Minister for their contributions. I think we can all agree that child protection should be a priority for any Government and that we must ensure that any gaps in the law are plugged with immediate effect.
This amendment, unlike many in this Bill, is not about creating a new category of offender or about an expansion of the criminal law; it simply reflects and seeks to fix the troubling reality that individuals who commit acts of cruelty or violence or neglect do not have a monitoring regime upon leaving custody. That is what we believe needs to be corrected. We already accept, as a matter of principle, that where an offence demonstrates a clear and ongoing risk to children, the state has a responsibility to ensure appropriate oversight in the community, and that is why notification requirements exist for child sex offenders. This amendment merely extends the same logic to offences that, while different in nature, can be as devastating in their consequences and no less indicative of future risk.
I am grateful to the Government for acknowledging the need and the advantages of this amendment both inside and outside of this Chamber. I am grateful for the Minister’s words of support tonight, and I understand the point she made about considering this properly, but the rise in child cruelty offences demands action rather than any kind of delay. Every year that passes without a mechanism of this kind leaves children unnecessarily exposed to harm. Therefore, I want to give, with the greatest of respect, notice to the Minister that unless there is an amendment from the Government on Report that supports the substance of this amendment, it is likely that I would want to bring it back. I re-emphasise my gratitude for the Government’s co-operation on this point, but for present purposes I beg leave to withdraw the amendment.
Baroness Doocey
“Removal of Chief Constables(1) The Police Reform and Social Responsibility Act 2011 is amended as follows.(2) In section 38 (Appointment, suspension and removal of chief constables), after subsection (4) insert—“(4A) Before exercising the power under subsection (3), the police and crime commissioner must consult with His Majesty’s Inspectorate of Constabulary and Fire and Rescue Services, or relevant successor inspectorate.”.”Member’s explanatory statement
This amendment requires a Police and Crime Commissioner to consult with His Majesty’s Inspectorate of Constabulary and Fire and Rescue Services before calling upon a Chief Constable to resign or retire.
Baroness Doocey (LD)
My Lords, Amendment 421 is now a hot topic. The West Midlands Police chief constable has resigned, and the Government are pledging to restore the Home Secretary’s power to dismiss chiefs who “fail their communities”. Last week’s events bring the motivation behind this amendment into sharp focus, underlining the need to shield operational policing from political interference.
Contrary to some recent reporting, police and crime commissioners are not required by law to consult the police inspectorate before sacking a chief constable. Although they are expected to seek its advice, it is not a statutory duty. Amendment 421 would put that safeguard clearly into primary legislation, requiring HMICFRS to be consulted before a chief constable is removed.
When PCCs were created, they were given the power to hire and fire the chief officer, but concentrating that power in one pair of hands has had damaging consequences. Across England and Wales, around a quarter of forces now lose their chief constable every year—an astonishing level of churn for such a senior role. That is both wasteful of talent and destabilising for forces. Too often, these departures are driven not by incompetence or misconduct but by political disagreement, with some PCCs permanently in election mode and prioritising their own political agenda rather than responding impartially to the real policing challenges on the ground.
We must never reach a point where a chief constable fears upsetting the Home Secretary, or where any politician can bully a police leader to serve their own political ends. That would take us dangerously close to the American model of political control over policing. In the British tradition, officers swear allegiance to the Crown, not to any politician, and they are expected to act independently without fear or favour. It is a model that has stood the test of time, commands public confidence and deserves to be preserved. Although PCCs have used the formal Section 38 removal process only twice, several more have threatened to invoke proceedings, usually starting with suspension. In all these cases, this has resulted in the chief constable choosing to retire or resign rather than fight a public battle they are unlikely to win.
The Government now propose to move responsibility from PCCs to elected mayors, with council leaders taking the lead elsewhere through new policing and crime boards. On these Benches, we fear that this simply repeats the same mistakes in a different guise. The mayoral route in particular concentrates even more power in a single individual, often elected on a low turnout and with limited day-to-day scrutiny. What replaces PCCs must be better, not just different, and for the Liberal Democrats that means local police boards drawn from councillors and community representatives. Moving powers from one underscrutinised politician to another is not a solution.
Amendment 438EC would allow the Home Secretary to instruct a PCC to begin the dismissal process, effectively giving central government the power to fire chief constables. No individual, whether a PCC, mayor, council leader or Home Secretary, should hold unilateral power to dismiss a chief constable. Dismissal must remain possible where justified, but only through a fair and transparent process, with mandatory independent scrutiny.
That is the role of HMICFRS—to provide an external check, ensuring that decisions are based on competence, conduct and the public interest, not political convenience. I welcome the fact that the Home Secretary sought the inspectorate’s view in the West Midlands case, but that essential safeguard is missing from Amendment 438EC, which allows appointment of a person outside government or policing with too much scope for political influence, and only after the Home Secretary has already decided, making the process look uncomfortably like a rubber stamp. That is what Amendment 421 is designed to prevent.
Lord Cameron of Lochiel (Con)
My Lords, as the noble Baroness, Lady Doocey, said, if ever there was a pertinent time to debate this matter, it is now. The mechanism by which chief constables can be removed has faced significant scrutiny, given the very controversial actions taken by West Midlands Police in the Maccabi Tel Aviv scandal. I pay tribute to my honourable friend Nick Timothy MP for his tenacity in pursuing the truth of that matter. I think it is now axiomatic that the former chief constable of West Midlands Police failed in his professional duties, and it is welcome that he has now accepted that his position is no longer tenable and has announced his retirement. It is against this backdrop that we discuss the amendments in this group.
On Amendment 421, I am of course aware of the Government’s indication that they will abolish PCCs in due course; that is important context to this amendment. For the time being, of course, they remain in place. I am not entirely convinced about the necessity of Amendment 421. With the Maccabi Tel Aviv affair, it was evident for quite some time that the PCC for the West Midlands should have dismissed the chief constable. As it happens, he did not, but I am not sure that consulting His Majesty’s Inspectorate of Constabulary and Fire & Rescue Services beforehand would have had any bearing on the PCC’s decision. Furthermore, if the PCC was required by statute to consult the inspectorate, would that not have provided further delays to any decision?
Amendment 438EC seeks to grant the Home Secretary the power to remove chief constables. In her Statement to the other place on the 14 January, the Home Secretary said that until 2011, the Home Secretary had the authority to dismiss a chief constable, but the power was removed by the previous Conservative Government. On the face of it, that is correct. The Police Reform and Social Responsibility Act 2011 repealed the direct power of the Home Secretary to remove the chief constable of a police force, and Section 38 of that Act grants the power of dismissal to the PCC of the police area. However, the Home Secretary has the power to give directions in relation to police forces and local policing bodies under Sections 40 and 40A of the Police Act 1996. If, for instance, it was clear that West Midlands Police was failing to discharge its functions in an effective manner, the appropriate measure to remedy that failure would have been the removal of the chief constable. Therefore, according to those sections, the Secretary of State has perhaps an indirect ability to remove chief constables.
In her Statement to the other place, the Home Secretary also said that the Government are going to reintroduce the Home Secretary’s power to dismiss chief constables and that this will be part of the Government’s upcoming White Paper on wider police reform, with legislation to follow. Does the Minister have a timeline for when the police reform White Paper might be published, and, if he does not have precise date, can he give us an indication of its rough progress? Will any change in the law be brought forward in time for Report on this Bill, or will we have to wait until the next Session for another policing Bill?
Lord Hanson of Flint (Lab)
I am grateful to the noble Baroness, Lady Doocey, for her amendment, which concerns the process by which police and crime commissioners may call on a chief constable to resign or retire. As the noble Lord, Lord Cameron of Lochiel, has mentioned, the Government’s intention is to replace police and crime commissioners with a mayoral model or, in some cases in which the mayoral model is inappropriate, with a policing board made up of local councillors, and that will be brought forward in due course. Further details will be set out again in the policing White Paper. The noble Lord, Lord Cameron of Lochiel, asked me when that would be produced. I say again to him the time-honoured phrase of “shortly”, but by shortly I do mean shortly; I hope he will not have too long to wait for the report be published as a White Paper. Self-evidently, it is a very complex document with lots of discussion items in it. Again, any legislative proposals in it will be brought forward when parliamentary time allows. I am not trying to short-change him, but we will give that detail in the near future.
As the noble Baroness has explained, the purpose of her amendment is to ensure that, before taking steps to dismiss a chief constable, a police and crime commissioner must first seek the views of HMICFRS. I agree that this is a desirable approach, and I am pleased to tell your Lordships that this is already in place as a requirement. The noble Baroness should know, and I hope that it is helpful to her, that under Section 38(3) of the Police Reform and Social Responsibility Act 2011, PCCs may call upon the relevant chief constable to resign or retire. Before exercising this power, and under regulation 11A of the Police Regulations 2003, police and crime commissioners are required to seek the views of HM inspectorate in writing and provide them to the chief constable and the relevant police and crime panel, alongside their rationale for why the PCC is proposing to call for retirement or resignation. I appreciate that it is a confusing landscape to have regulations under the Act and under police regulations. However, the position currently is there in black and white, and what her amendment seeks to do is already enshrined in law.
The noble Lord, Lord Walney, is not in his place so I will not say too much now, if anything, about Amendment 438EC. However, because it was raised by the noble Lord, Lord Cameron of Lochiel, I want to place on record for the Committee the fact that the Home Secretary has already announced the Government’s intention to reintroduce the Home Secretary’s power to remove chief constables. It has been a difficult few weeks in the West Midlands and, following the changes that were mentioned by the noble Lord, Lord Cameron of Lochiel, it has highlighted the absence of such a power allowing the Home Secretary to act. We believe that action is needed, and I can assure your Lordships that this is high on the Government’s agenda. The White Paper is due in very short order. It will set out exactly the Government’s intentions in this regard and will be followed by legislation as soon as parliamentary time allows, because we need to make changes on a range of matters, not least the abolition of PCCs. I look forward to debating this with noble Lords across the House. However, if the noble Baroness accepts that, difficult though they are to find, the regulations and the requirement are there, I hope she will be able to withdraw her amendment for the moment. I look forward to further discussion when the other matters come before the House at some future point.
Baroness Doocey (LD)
In view of what the Minister has just said, I beg leave to withdraw the amendment.
Baroness O'Loan
“Police disciplinary proceedings: use of force(1) Schedule 2 of the The Police (Conduct) Regulations 2020 (S.I. 2020/4) (standards of professional behaviour) is amended as follows.(2) In the heading “Use of Force”, at end insert—“Where a police officer uses force on the basis of an honestly held but mistaken belief, they can rely on that belief as justification for the use of force only if the mistake was an objectively reasonable one to have made.”.”Member's explanatory statement
This amendment seeks to (1) codify the decision in W(80) UKSC 24, that in police disciplinary proceedings involving use of force, an officer may rely on a mistaken belief only if that belief was both honestly held and objectively reasonable, and (2) and enable parliamentary consideration of the appropriate test in this context.
Baroness O'Loan (CB)
My Lords, Amendment 422 relates to the test used to determine whether an officer acted in breach of discipline when he or she used force in self-defence. We come late to this, but it is a very important issue. Currently, the test used in police disciplinary law is the civil law test. Under the current law, an officer must hold an honest belief that they or others are in immediate danger, must use only proportionate and necessary force, and, critically, where their belief is mistaken, their mistake must have been an objectively reasonable one.
The amendment is necessary because, following the police accountability rapid review report, published in October 2025, a recommendation was made to change the legal test to the criminal test. This would allow officers to rely on an honestly held but mistaken belief, even if it was unreasonable. The Government have said they will implement this change through a statutory instrument without public consultation. At this stage, I thank Justince and Inquest for their research on this matter.
The criminal law test, which the Government propose, would allow officers to rely on a mistaken belief, even if it was unreasonable, so long as it was honestly held. I fully understand that officers are under great pressure when faced with possible or actual violence. Split-second decisions must be made on the ground in the immediate context. That is why it is critical that officers are properly trained and managed. However, it is not a good reason to move from the civil to the criminal law test.
This determination arose from a criminal law test where the Supreme Court made a decision in the W80 case, where an officer shot a man. When misconduct proceedings were brought, he claimed he had done so in self-defence. The IOPC recommended to the MPS that the officer should face misconduct proceedings, the MPS declined to initiate those proceedings, and the IOPC wrote to the MPS directing disciplinary proceedings. That decision was challenged by judicial review. The Divisional Court allowed the appellant’s claim. The IOPC appealed to the Court of Appeal, and the appeal was allowed. On further appeal to the Supreme Court, the decision of the Court of Appeal was upheld. In dismissing the appeal, the Supreme Court judges commented:
“This is an area of the law of vital importance to the public and to the police. It is essential that the public and the police should be informed in straightforward terms of the law which applies. We hope that it will now be possible to recast legislation and guidance so as to achieve this result”.
This amendment is not about criminal law, and it is not about whether an officer should be prosecuted for the use of force. It seeks only to provide the clarity that the Supreme Court advocated.
The criminal law test is simply not appropriate for disciplinary proceedings. Applying it would undermine public confidence in the police disciplinary process, weaken accountability and make meaningful scrutiny of police use of force far more difficult. The Home Office’s statutory guidance makes it clear that the disciplinary framework is intended to encourage a culture of learning and development for individuals in the organisation. This focus on learning and development is part of what makes disciplinary procedures distinct from criminal procedures. Misconduct processes are an important and excellent opportunity for forces to identify mistakes, learn from them and prevent recurrence.
The Supreme Court in W80 made clear that the criminal law test conflicts with the fundamental principle of the disciplinary process, which is
“to contribute to learning and development for the individual officer concerned or for the organisation as to the reasonableness of mistakes”.
If the objective reasonableness of an officer’s mistaken belief is no longer relevant, unreasonable beliefs, however dangerous and widespread, may never be identified. Allowing unreasonable but honestly held beliefs to serve as a defence would strip away the incentive to examine, understand and remedy the factors that led officers to hold those beliefs in the first place. For public safety it is essential that unreasonable mistakes and the conditions that enabled them are identified and addressed.
Moreover, the introduction of the criminal law test would risk allowing honestly held beliefs based on prejudice or stereotyping, however unreasonable, to provide a defence following police use of force. Police use of force is continually increasing, with over 812,000 recorded uses in 2024-25, an increase of 9% on the previous year. Police complaints about use of force rarely lead to investigation by the IOPC, because most complaints are referred back to the officer’s force for investigation. Fewer still result in disciplinary proceedings, and hence the opportunity to identify training or management deficiencies to enable institutional learning and improvement is not there.
Lord Carter of Haslemere (CB)
My Lords, my Amendment 423 would implement a recommendation of the Judicial Committee of the House of Lords in the judgment in the Lee Clegg case in the 1990s. Briefly, the facts of that case were that, on 30 September 1990, Private Lee Clegg was on patrol in west Belfast, when a passenger in a stolen car was shot and killed. Lee Clegg was charged with murder, and his defence was that he fired in self-defence. He was convicted of murder on the grounds that he used disproportionate force.
On an appeal, the Judicial Committee of the House of Lords had to decide whether a soldier on duty in defence of the civil power—in a similar position, therefore, to police firearm officers—who kills a person and who would be entitled to rely on self-defence but for the excessive use of force, is guilty of murder or manslaughter. A manslaughter verdict would have meant a change in the law. Lord Lloyd of Berwick said that the arguments in favour of such a change were very persuasive. Quoting from the Court of Appeal, he said:
“There is one obvious and striking difference between Private Clegg and other persons found guilty of murder. The great majority of persons found guilty of murder, whether they are terrorists or domestic murderers, kill from an evil and wicked motive. But when Private Clegg set out on patrol on the night of 30 September 1990 he did so to assist in the maintenance of law and order and we have no doubt that as he commenced the patrol he had no intention of unlawfully killing or wounding anyone. However, he was suddenly faced with a car driving through an army checkpoint and, being armed with a high velocity rifle to enable him to combat the threat of terrorism, he decided to fire the … shot from his rifle in circumstances which cannot be justified”.
Lord Lloyd continued:
“It is right that Private Clegg should be convicted in respect of the unlawful killing … and that he should receive a just punishment for committing an offence which ended a young life and caused great sorrow to her parents and relatives and friends. But this court considers, and we believe that many other fair-minded citizens would share this view, that the law would be much fairer if it had been open to the trial judge to have convicted Private Clegg of the lesser crime of manslaughter on the ground that he did not kill … from an evil motive but because his duties as a soldier”
meant he had a high-velocity rifle, and
“he reacted wrongly to a situation which suddenly confronted him in the course of his duties … we consider that a law which would permit a conviction for manslaughter would reflect more clearly the nature of the offence which he had committed”.
However, Lord Lloyd ruled it was inappropriate for the courts to change the law, and it was for Parliament to do so.
Here we are, 30 years on, with that opportunity, and the issue has never been more important, given the analogous position of police firearms officers. Since 2010, British police have shot dead 30 people—an average of two a year. Most recently, we have seen the prosecution last year for murder in the case of Sergeant Martyn Blake. Police officers are being deterred from volunteering for firearms training and the National Police Chiefs’ Council says police forces across England and Wales are grappling with a significant shortage of firearms officers, exacerbated by the lack of legal protections afforded to armed officers, particularly regarding criminal and misconduct hearings. The move to anonymity in criminal proceedings is welcome but not enough.
Parliament enacted legislation in 2008, the Criminal Justice and Immigration Act, which set out the law of self-defence in Section 76. This provides that the question whether the degree of force used by D—the defendant—was reasonable in the circumstances is to be decided by reference to the circumstances as the defendant believed them to be, but, crucially, the degree of force used by the defendant is not to be regarded as having been reasonable in the circumstances if it was disproportionate. Therefore, the upshot is that a police officer cannot rely on self-defence to a murder charge if he used disproportionate force. This is unlike in the case of householders who, since the Crime and Courts Act 2013, will now generally have a defence if the force was disproportionate, but not if it was grossly disproportionate.
This confirms my belief that there is a lacuna that needs to be addressed, just as the House of Lords said in the appeal in the case of Lee Clegg. I should add a brief postscript here to the Lee Clegg case, since I believe he was subsequently acquitted on the grounds of new evidence.
On 23 October 2024, the then Home Secretary made a Statement on the Martyn Blake case. She said that
“the current system for holding police officers to account is not commanding the confidence of either the public or the police”,
and that although the public are entitled
“to expect that when officers exceed the lawful use of their powers … there will be … robust processes in place to hold them to account”,
she continued:
“Police officers who act with integrity and bravery to keep us safe each day need to know they have strong public support. If officers lack the confidence to use their powers … public safety is put at risk”.—[Official Report, Commons, 23/10/24; col. 300.]
My amendment seeks to strike this balance by implementing the recommendation of the House of Lords in the Lee Clegg case all those years ago. If passed, it would not, as in the householder’s case, result in an officer’s acquittal, since I do not think that can be justified in the case of trained firearms officers. There needs to be accountability and a criminal penalty. The House of Lords in Clegg seemed to agree, since it recommended manslaughter, not acquittal, for such cases. I will be very interested to hear the views of the Government on this long-standing issue.
Lord Jackson of Peterborough (Con)
My Lords, I support the excellent amendment from the noble Lord, Lord Carter of Haslemere. Firearms officers provide a valuable and necessary service, and are an important part of UK policing. They do a very difficult and dangerous job and deserve our thanks. The current climate is not conducive to good policing and does not support our officers. This amendment is a positive one which will help them.
This is a topical amendment. Several days ago, the Independent Office for Police Conduct ruled on the case of Sean Fitzgerald being shot during a raid by West Midlands Police. He was holding a black mobile phone, which the officer who shot him believed was a gun.
This ruling was the conclusion of a long, complex investigation that included experts whose reconstruction corroborated the officer’s testimony that the phone could have been mistaken for a gun. The director of the IOPC said:
“The determination over whether the officer should face disciplinary proceedings largely came down to a split-second decision in what was a dynamic, fast-moving, armed police operation”.
This was a tragic accident, but it highlights the fact that firearms officers have to make very difficult, instantaneous decisions that can result in life or death. They have to quickly make a call on what is the safest option for themselves, their fellow officers and the public. In order for them to make the best judgments for themselves and for the public, they need to be confident that they will be supported in making that endeavour.
It is striking that in a piece in the Daily Telegraph, former firearms officer Sergeant Harry Tangye said that his and his fellow officers’ main fear was not being shot themselves; it was facing the investigation that would happen after they discharged their weapon while doing their job. The case of the shooting of Chris Kaba demonstrates this. In response to how the officer was treated, up to 300 Metropolitan Police officers stepped back from firearms roles, and the Army had to be put on standby to support the Met.
Firearms officers go through intensive training, including in how to respond in high-pressure situations. These are dedicated people with a strong desire to protect the public and serve their communities. Tangye said:
“But each time an AFO attends a scene, they face an uncomfortable truth: if I get this wrong I could be jailed. In my 30-year career I never once met an officer who wanted to ‘bag’ a scalp; no-one who hoped for the chance to use their gun to bring down a criminal. Most of us weren’t even keen on firearms at all. If you were a weapons enthusiast, you would be viewed with great suspicion by your force and probably removed”.
Authorised firearms officers, or AFOs, he said,
“shouldn’t have to do their jobs in fear of being jailed, or in fear of their careers, their lives, being ruined”.
The Police Federation also shares these concerns: that firearm officers,
“even when they follow the tactics and training they have received, will face significant struggles and hardships over what are usually split-second decisions taken by them in dangerous and fast-moving situations”.
Firearms officers need to be protected in primary legislation to make sure it is certain that they will be treated fairly when they have to make a very difficult decision. This amendment from the noble Lord is not a “get out of jail free” card; it still holds them to account for their actions. It means that officers who do their job properly, who make a decision that would be impossible for most people in this Chamber to comprehend, are protected under the law, and on that basis, I strongly support the amendment.
Lord Hogan-Howe (CB)
My Lords, I will speak to my Amendment 423A and will talk a little about the two other amendments.
In England and Wales, police firearms officers have intentionally discharged conventional weapons at people around 120 times over the last 20 years, between 2006 and 2026, so that is a discharge of a weapon at a person about six times a year. This figure represents less than 0.05% of all authorised firearms operations during that period.
In 2024-25—in just one year, the latest—there were 17,249 firearms operations. During that 20-year period, as the noble Lord, Lord Carter, said, the police shot dead on average around three people a year, each one a tragedy. There is no way that any officer should celebrate what happened, nor the families, of course, or all the people who are hurt by these terrible things. At the same time, the police injured a further two people a year.
This is not a trigger-happy group of people. They are the only people in this country who can go forward to deal with criminals or situations where a person is armed or similarly dangerous. They are a unique group of around 5,500 people in England and Wales who protect the population of 60 million of us and our visitors, and on our behalf they go forward.
They then expect, as I think we all do, that they will be held accountable. They do not expect immunity in the criminal or any court, but they do have a reasonable expectation that the system will understand the challenges they face, as the noble Lord, Lord Jackson, mentioned. In that fraction of a second, they have to make their decision on whether to shoot.
They suffer from the further challenge that they are only human beings with all our human strengths and frailties. Despite the fact that they are selected from still a reasonably large group of police officers who apply—not all who put themselves forward are selected—and then go through some rigorous training, at the end of the day they remain a human being, with all our frailties, fears and, at times, courage.
Lord Hogan-Howe (CB)
I did not say that the noble Baroness did. My point is that after a public inquiry, where it was found that W80 had lawfully killed Jermaine Baker in 2015, and a series of further hearings that led eventually to the Supreme Court, W80 appeared before a gross misconduct hearing by an independent body—nothing to do with the police; it was ordered by the IOPC—and was found to have no case to answer. It was not found that there was an arguable case, or that there was mitigation. There was no case to answer, 10 years later. It had been through the Court of Appeal and the Supreme Court, and nobody had noticed that there was no case to answer.
One of the central problems in these cases is that they are rare. Every time an officer waits years to be cleared, there is an outcry asking why they were charged in the first place or why it took so long to resolve. Every Government affected by this has said, “We will review it, and improve”. In fact, the noble Lord, Lord Jackson, has just mentioned the latest example of that.
My broad point is that all the reviews in the world have produced absolutely nothing. Nothing has changed. I have given two examples but there are many more, where people have been waiting 10 years for something to be shown to be not a criminal offence. I am afraid that the reviews have not produced anything, which has led to me tabling this amendment.
The officers are under a triple jeopardy. First, the IOPC considers whether there is a criminal offence or an offence of misconduct. That can take around 18 months. If there is a claim of a criminal offence, that is considered by the CPS, which probably takes another year. In the event that there is a criminal charge, the officer will go to court. During this period, the inquest into the person’s death will have been suspended. If there has been no charge, the inquest, usually with a jury, will be resumed. Those juries can find, and have found, that there was an unlawful killing, which then must be reconsidered by the CPS, usually leading to a criminal charge to go through a criminal court and then back through the IOPC. It has been hard to establish the facts, but by my calculation there have been around five officers charged with murder following cases over the last 20 years, each leading to a finding of not guilty at a Crown Court. The people who seem to be able to appreciate this issue, and deal with it with some wisdom, are called jurors.
My amendment is designed to give some comfort to firearms officers that their case will have to reach a higher bar before a prosecution can be started. It is modelled, as the noble Lord, Lord Carter, has mentioned—he is the one who pointed this out to me—on the householder defence to murder that already exists in criminal law. If a householder is attacked in their home and, in the process of defending themselves, kills the intruder, there is a higher legal threshold to pass before a prosecution for murder can follow. All I am asking is for the same to apply to a firearms officer.
I have talked to the Attorney-General about this. He reminded me that lawyers generally have concerns about this because it creates a unique group, a group of people who are treated differently by the criminal law, but I have two points in response to that general principle. First, householders are already a unique group. The criminal law has decided that they are a unique group and that is okay, but that it would not be all right for police firearms officers, who—I argue—are also a unique group. Why can we not add one more group? This was decided by Parliament on the advice of lawyers. What is different about this group? More importantly, for the reasons that I have given, they are a unique group. They the only people in society who use a firearm to prevent a crime, save a life or make an arrest. We say that no one can carry a firearm for that purpose, even if they are a legal firearm owner.
Lord Hogan-Howe (CB)
I end with this. I know that it is late. All our firearms officers are volunteers. They cannot be ordered to carry a gun. Unlike in the USA, it is not a condition of service. We rely on their honour and willingness to come forward and take on these roles. There is evidence that this is not happening in the numbers we need. There are not many noble Lords in the Chamber, but I ask those who are here whether they would do it. Could they do it? Would they take that responsibility, facing the inevitable inquiries that would follow? It involves not only the officer but their family.
Lord Katz (Lab)
If the noble Lord could conclude his remarks, that would be helpful for everyone.
Lord Hogan-Howe (CB)
There are just too many times when officers are faced with the challenge, which is unfair. The solution I propose is that we should treat firearms officers fairly and differently. I am not a lawyer. The Government may be able to come up with a better proposal, but the position that we have at the moment is untenable and something that I am not prepared to let rest. I ask for support from the Government in some respect.
My final point is that I support, to some extent, the proposal of the noble Lords, Lord Carter and Lord Jackson. My concern is that it might lead to more people being charged more often, and I am arguing that they should be charged less often for doing their job.
Lord Jackson of Peterborough (Con)
My Lords, forgive me, if I can beg your indulgence. In order for there not to be any confusion, I neglected to advise the Committee that my brother is a serving Metropolitan Police officer. I should have mentioned that earlier.
Baroness Doocey (LD)
My Lords, these three amendments raise a difficult but important question: how should the law treat the use of lethal force by authorised firearms officers so as to protect both the public and those officers who act in good faith in dangerous situations?
Amendment 422 would make it clear in the Police (Conduct) Regulations that when an officer uses force based on a mistaken belief, that belief must be both honestly held and objectively reasonable. This reflects the Supreme Court’s decision in W80 and would give bereaved families, and communities that often feel over-policed, greater clarity and confidence in the system.
Amendment 423A would update Section 76 of the 2008 Act so that force used by an authorised firearms officer could never be treated as reasonable if it was grossly disproportionate to the situation as they saw it. That would set a clear upper limit on what can count as lawful force, drawing a boundary beyond which self-defence cannot reach, however real the threat appears.
From these Benches, we understand the intentions behind both amendments: the first writes the W80 test into disciplinary rules; the second provides clearer statutory guidance in firearms cases.
Amendment 423 goes further. It proposes that if an authorised firearms officer kills someone while acting under an honest but mistaken belief that the force used was necessary and reasonable, the conviction should be manslaughter rather than murder. We are concerned that this would, in effect, create a special route from murder to manslaughter for authorised firearms officers, one not available to others who also face life-and-death decisions.
When police use potentially unlawful lethal force, there must be full investigation, prosecution where appropriate, and robust disciplinary proceedings. The central question, then, is whether these amendments strike the right balance between public accountability and fair protection for officers who must make split-second decisions in life-threatening situations.
Lord Cameron of Lochiel (Con)
My Lords, Amendment 422 in the name of the noble Baroness, Lady O’Loan, has had a detailed introduction, and I would like to abbreviate my remarks as a result.
The issue under consideration in that case was whether, in police disciplinary proceedings, a police officer could have a finding of misconduct against them if their use of force was found to be honest and mistaken but unreasonable. Ultimately, the Supreme Court ruled that the appropriate test was the civil law test and that an honest but mistaken belief that the use of force is necessary is justification for that use of force only if the belief is objectively reasonable.
Amendment 422 would place that judgment into statute. Regardless of the merits or otherwise of the Supreme Court’s ruling on whether the criminal or civil test should be applicable, I am not convinced that it needs to be codified into statute, because there now exists relevant case law at the highest level which can be applied by the IOPC and the courts in the future. It is not clear to me what benefit there would be in placing this into the regulations.
I would like to concentrate my remarks on Amendment 423 in the name of the noble Lord, Lord Carter of Haslemere, because I want to express my strong support for it. I believe firmly that we must support our armed police officers who regularly put themselves in danger. This amendment presents an opportunity to do that. It would create a defence to a charge of murder for authorised firearms officers who used lethal force in the honest but mistaken belief that such force was necessary and reasonable and convert a conviction for murder into manslaughter.
Lord Hogan-Howe (CB)
This is one of my major objections to the amendment that the noble Lord, Lord Carter, proposes. Can the noble Lord explain to me why a firearms officer would feel more supported by a discretionary life sentence, which is what would be available for the charge of manslaughter, compared with a mandatory sentence of life for murder? I am not sure I would.
Lord Cameron of Lochiel (Con)
The point I was making is that the prospect of a murder conviction may have an effect on an officer if they feared that an error that they made may result in a murder charge. On the noble Lord’s own amendment, as I said, I listened with sympathy to it, and I await the Government’s response on it and, indeed, all the amendments in this group.
Baroness Levitt (Lab)
My Lords, as we have heard during this short but important debate, these amendments all relate to the same matter of principle—namely, the legal standard by which an authorised firearms officer should be judged on the thankfully rare occasions when they discharge a firearm.
The Government pay tribute to our armed officers. Theirs is a difficult, dangerous and stressful job. They do it to keep us all safe, and we have a great deal for which to thank them. Of course we recognise that they often find themselves in exceptionally difficult circumstances, having to make life and death decisions in an instant. That said, there is the matter of public confidence in the police. I do not think that any of your Lordships would disagree that confidence in the police is of equal importance. I would not be doing justice to this debate if I did not recognise and mark the fact that some of our citizens feel great anxiety about the accountability of firearms officers. In the past, when there have been high-profile fatal shootings by the police, this anxiety has boiled over into anger and social unrest.
The Government’s job is to balance these factors. We must ensure that the law offers protection to our brave police officers while at the same time providing reassurance to our fellow citizens that, if officers do fire their weapons, their conduct will be rigorously scrutinised. It is only right that the public should have confidence that any officer whose actions fall below the high standards we rightly expect will be held to account in the public interest.
Our conclusion is that we should not create a two-tier justice system where police officers who kill or injure in the course of their duties are judged by a more lenient standard than applies to the rest of the population. Our reason is this: we are confident that the criminal law which covers self-defence, defence of others and the use of force in the prevention of crime already provides sufficient protection for police officers. Because of the lateness of the hour, I am not going to go through the details of this, which I had intended to do, but will move straight to the amendments.
Amendment 423, in the name of the noble Lord, Lord Carter of Haslemere, would change the law so that an authorised firearms officer who acts with disproportionate—in other words, unreasonable—force would still be guilty of an offence, but it would be manslaughter, not murder.
I want to say a few words about what the law says about how a jury must consider whether the amount of force used by the officer was reasonable, sometimes described as proportionate. While this is an objective test, if the jury is told that what the officer did in the heat of the moment, when fine judgments are difficult, was no more than they genuinely believed was necessary, even if they were mistaken in that belief, that would be strong evidence that what they did was reasonable. If the jury also considers that the officer may have done no more than was reasonable in the light of what they believed to be happening, they are not guilty of anything. In other words, the law provides a full defence.
It is unclear whether Amendment 423 is intended to replace this full defence with a partial one, or whether, as I think is the case, it is intended to work alongside it in some way. If the noble Lord’s intention is to create a partial defence, then what he is saying is that officers who use unreasonable or excessive force should be held to a different standard from the rest of the population. We cannot accept this because the Government believe that to do so would fundamentally damage confidence in the police and in the justice system.
I turn to Amendment 423A in the name of the noble Lord, Lord Hogan-Howe, which seeks to amend Section 76 of the Criminal Justice and Immigration Act 2008. As your Lordships have heard, Section 76 deals with householder cases. The noble Lord’s amendment seeks to make authorised firearms officers subject to the same standard as the householder confronted by an intruder. The amendment attempts to raise the threshold for when force becomes unreasonable from disproportionate to grossly disproportionate for firearms officers. In effect, this means that firearms officers could rely on the defences of self-defence, preventing crime or making a lawful arrest if they used force that was disproportionate in the circumstances, provided it was not grossly disproportionate.
For the reasons I have already given, the Government are of the strong belief that it would be wrong in principle to authorise the police to use excessive force and that this would be extremely damaging to public confidence. In any event, we do not think there is a proper comparison to be made between householders facing an unexpected intruder and trained firearms officers. The threshold was raised in householder cases to recognise the exceptional nature of being unexpectedly confronted by an intruder in one’s home. The unique stress and shock of a home invasion justifies greater legal protection, allowing a higher level of force than in other self-defence contexts. The same logic does not apply to firearms officers, who are trained and equipped to use lethal force and are deployed only in the most high-risk situations. They are subject to strict command, control and training protocols to ensure that lethal force is used only when necessary and in accordance with the current legal framework.
I turn finally to Amendment 422, in the name of the noble Baroness, Lady O’Loan. As the noble Baroness has explained during the debate, her amendment deals not with criminal trials but with police conduct hearings. The previous Home Secretary commissioned Timothy Godwin and Sir Adrian Fulford to carry out an independent police accountability rapid review because it was recognised that there was ongoing complexity and confusion, and that there were concerns that this was having an impact on recruitment and retention of these essential and much valued officers. Sir Adrian and Mr Godwin examined the matter thoroughly and heard evidence from a wide range of stakeholders. Their conclusions and recommendations, published in October 2025, were clear that the Government should change the legal test for use of force in police misconduct cases from the civil to the criminal law test.
The reviewers found that police officers need confidence and greater consistency in the disciplinary system and that this would improve fairness and public confidence. The Government have taken on board that recommendation and we are in the process of making the necessary changes to The Police (Conduct) Regulations 2020. Our intention is that these changes will come into force in the spring. We accept that the amendment is well intended, but I hope that the noble Baroness will understand why the Government cannot support it and, for the reasons I have given, I invite her to withdraw her amendment.
Baroness O'Loan (CB)
My Lords, I thank the Minister and everyone who has spoken. There is a major issue of public trust in policing which has yet to be fully explored, but for the moment I beg leave to withdraw the amendment.