Criminal Justice and Courts Bill

Baroness Berridge Excerpts

Monday 20th October 2014 Lords Chamber

This House has traditionally taken an enlightened view of youth justice but this is not an enlightened clause. The inclusion of 16 and 17 year-olds within its application is entirely unenlightened; it is populist and counter to all the evidence. I beg to move.

[Baroness Berridge (Con)]

My Lords, I shall speak briefly on the amendment proposed by my noble friend Lord Marks. First, on a point of agreement, he will have seen that under Amendment 65 in my name and that of my noble friend Lady Browning it would of course be possible for the court to take into account the circumstances of the previous offence that was what I will call the “trigger” for this provision. Those circumstances could be taken into account.

With regard to the second point, we outlined in Committee that under new Section (6B) in Clause 27(4) there is a judicial discretion not to impose a mandatory sentence unless there are particular circumstances that relate to the offence, the offender or the previous offence and it would be unjust to do so in the circumstances. I would be interested to know the Minister’s opinion on whether the likely impact on the child of the offence would be included in the consideration of the welfare of the child, which is part of the other amendments that my noble friend and I have tabled.

In relation to a third point, the imposition of a mandatory requirement on young people aged 16 and 17—

[Lord Marks of Henley-on-Thames]

Before my noble friend gets on to her third point regarding 16 and 17 year-olds, may I just ask her whether she was saying in her previous remarks that if it is the case that the likely impact of the offence is not caught within the phrase,

“the circumstances of the offender”,

she will therefore support that amendment of mine?

[Baroness Berridge]

No. In relation to the likely impact, my point was whether that is considered under the requirement in the Children and Young Persons Act to take into account the welfare of the child.

With regard to 16 and 17 year-olds, it is already the position that they are covered under the mandatory sentencing provisions if they are convicted twice of the offence of threatening with a knife, so it would be inconsistent not to include 16 and 17 year-olds under these provisions where there will be mandatory provisions when you are twice convicted of the offence of the possession of a knife.

I understand that there is not a clear age of majority in this country, but when you can marry and join the Army at age 16, if you have been found in possession of a knife and convicted of that offence and then been found in possession of a knife again by the time you are 17, I do not think it is unduly harsh to say to those young people that a prison sentence is to be imposed unless the provisions of proposed new Section (6B) are found to apply by the judge.

Finally, in relation to the disproportionality issue for black and ethnic minority young people which I have mentioned previously in your Lordships’ House, it is clear that it is also the case that those young people are disproportionately the victims of knife crime. If one is going to plead disproportionality, one has to look not only at offenders but also at victims. The use of knives on young black people—particularly men—is an issue of grave concern in that community, so one has to look at both sides of that issue and not just at the disproportionality of offenders.

[Lord Carlile of Berriew]

My Lords, I speak in support of my noble friend Lord Marks and will make two points. First, over recent years, I have been involved in a lot of work and study about the treatment of young offenders, partly during the time I spent as president of the Howard League for Penal Reform and partly in preparing reports requested by others. One of the givens of studies of youth penalties—of youth sentencing—is that short sentences by and large are not beneficial: they are usually destructive. They destroy ties with education, they damage ties with family, and they remove ties with good friends as well as, of course, bad friends. This has been recognised by the Youth Justice Board. One of the reasons for the reduction in the number of children in custody, as mentioned by my noble friend Lord Marks, is that it has been seen by the courts that non-custodial dispositions, on the whole, are far more constructive.

That leads me to my second point, which is about judicial—or court—discretion. I do not want to dress this up too grandly, because most of the group we are talking about appear before a youth court in their own local areas, and there is much about youth courts that needs to be reformed. That said, whenever a case comes before a youth court, the court hears all the facts about the young person concerned. It hears the facts of the case; if the defence is properly prepared, it hears about the young person concerned and about everything that has happened in their past. Many of those children who appear before courts—there is no difference in this regard between 16 and 17 year-olds and the immediately younger age group—come from very deprived backgrounds. They usually have had very little attention paid to them and more than half of them have at least one mental health issue—some have multiple mental health issues—that needs to be addressed. To deprive an experienced court of the discretion to impose a non-custodial sentence when that might fly in the face of the merits as set out in the facts and reports before the court is really an astounding proposition. I challenge the Minister to produce any empirical evidence—any studies— showing that this is a proposal that is justified on the merits. I urge him to accept that it is an error of judgment to include 16 and 17 year-olds in this provision.

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Attempts were made to seek agreement across the House to the amendments in my name and that of my noble friend before we tabled them. As your Lordships know, I am not a lawyer and we had to seek assistance in tabling them. We hope that we have the legislation and the legalities right to tidy up a clause which we support but which cannot be left in the Bill in its current state. I hope that these amendments are helpful, allay some concerns and improve Clause 27.

[Baroness Berridge]

My Lords, although my noble friend Lady Browning states that she is not a lawyer, I think that she has outlined to your Lordships’ House in comprehensive detail the changes that are needed to ensure that this amendment, which was made in the other place, does not cause conflict with existing legislation.

[Lord Kennedy of Southwark]

My Lords, this group of amendments raises important issues, just as we saw with the previous group, concerning the possession of an offensive weapon or a bladed article.

I have the greatest respect for the noble Baronesses, Lady Browning and Lady Berridge. They make some very important points but I am not convinced by their arguments that what they seek is necessary. As I said previously, knife crime can have a devastating effect, not only on the person who is killed or seriously injured but on the life of the offender. In Committee, the noble Lord, Lord Blair of Boughton, told the House that he had to speak to many families whose loved ones had been murdered in such circumstances and saw at first hand the devastating effects of that. We have to get the balance right. For this group of amendments, my previous suggestion stands: we need to look at this whole area and review it after a couple of years. If the Government come back then and look at how the whole Act is operating, that is the best way forward.

I will listen very carefully to the reply by the noble Lord, Lord Faulks, especially with respect to increasing the scope to include people convicted of an offence under various military and Armed Forces Acts. Clearly the noble Baronesses have considered this very carefully. However, I am not convinced that to put in the Bill an amendment that a court must have regard to the duty under Section 44 is necessary. I am sure the Minister will respond to that as well.

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I am grateful, as I think my colleagues are, for the work that Julian Huppert and colleagues have done down at the other end of the corridor. Revenge porn is a serious crime. It has too often been hidden because the victims have been too humiliated to come forward. The government amendment will change all that, and I look forward to it coming into law and changing the face of revenge porn for ever.

[Baroness Berridge]

My Lords, I support the arguments made by my noble friends in relation to this matter. I am pleased to say that, unlike the previous amendment regarding knife crime, there has been agreement, particularly among the Back Benches and the government Benches, on the need to act. I pay tribute to my noble friend Lady Morris of Bolton, who joined me in amendments in Committee but is not able to be here today.

One point that I would make in addition to those that have already been outlined is that these images are not always taken with consent. The development of technology has meant that in situations unbeknown to someone, images are taken through hidden devices and mobile phones. So it might not even be an old Polaroid; people might be completely unaware that an image has been taken, and the first that they know of it is when their ex-partner releases it into the public domain, adding even greater trauma to what is an incredibly traumatic situation for any victim. Unfortunately, there has been the development of certain professional sites where people are making profit out of this situation.

I also join in welcoming the Government’s response in relation to this. I have never found a firm view at the Ministry of Justice on this matter; I have always found there to be an open door and a willingness to consider it. As has been outlined, technology has been leaping ahead in relation to this matter. I pay tribute to the work of organisations such as Women’s Aid and to my right honourable friend Maria Miller, who led a Back-Bench debate in the other place on this issue and has been campaigning vociferously in relation to it.

[Baroness Thornton]

My Lords, I am pleased to say that we on these Benches support these amendments. Some time ago my right honourable friend Yvette Cooper said that people who post intimate images of their former partners online in so-called revenge porn attacks, or who blackmail them with such images, should face new criminal charges, so of course we support the amendments.

The use of intimate, private sexual images as a weapon with which to embarrass, humiliate and degrade is a crime, and it is right that it should be recognised in law. The new offence is a positive step, although in itself it is not adequate to address the underlying societal attitudes and behaviours that create and legitimise sexual violence, abuse and harassment in all its forms, so a government commitment to addressing those issues is also vital. The noble Baroness, Lady Brinton, is quite right to raise the issue of young people and the importance of not criminalising them or, for example, having them put on the sex offender register at a very early age for doing the extremely stupid things that young people are sometimes prone to doing.

The Government’s amendments will ensure that this is enacted. However, we need to ask today how effective they will be. I therefore have a series of questions to put to the Minister and to the noble Lord, Lord Marks. Could the Minister explain why this offence was not made part of the Sexual Offences Act? Will convictions for this offence be recorded by the CPS as a sex offence—in other words, would the person convicted be on the sex offender register?

As it stands, depending on the interpretation of “distress”, the law will provide a remedy to a victim who is distressed, but not angry. Professors Rackley and McGlynn, who have been advising many Members of the House throughout the discussions about revenge porn and rape porn, explained that the focus of the law should be on the offender’s actions and the absence of consent, not on the victim’s response, and I think that is right. Does the distress element also place an unnecessary additional burden on the prosecution? Professors Rackley and McGlynn contend that the mental element of the offence should be the intentional act of posting private sexual images without consent, including for the purpose of financial gain. We have to ask whether the issue of distress could actually significantly limit the effectiveness of this offence.

There is concern about the restriction of the offence to identifiable images. It should be immaterial whether someone else recognises the person in the relevant image. The publishing of private sexual images without consent should be a criminal offence, whatever the motivation of the offender and whatever form the victim’s response takes. It is the absence of consent that is fundamental. Would the restriction of the offence to identifiable images result in unnecessarily complicated evidential debates in court?

I will speak briefly to my own Amendment 106. It seems to us that we need to monitor the effectiveness and the implementation of this new law. We believe that the proposals of Clause 31 do not fulfil the Prime Minister’s commitment to equate online restrictions with the BBFC’s guidelines. Although we recognise that legislation in this area is very complex, it needs to be recognised that the Government have not yet solved the problem. It is important that there is a commitment to review the provisions of this clause within a year or so to assess their effectiveness: the number of prosecutions brought, the number of convictions, et cetera. Following a review of the new provisions, if they have not proved effective, the Government should consider the wholesale review of the regulation of obscenity and pornography. This is to ensure that the law is fit for purpose in our technological age and to reorientate the law in this area away from disgust and distaste and toward a focus, perhaps, on cultural harm—a discussion that we have had in this House before. It is therefore important to put in the Bill that 18 months from enactment would be sufficient time to see what was happening to the new regime and that the principle should be that an independent review is conducted.

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Moved by

[Baroness Berridge]

100: Before Schedule 4, insert the following new Schedule—
SchedulePossessing an offensive weapon etc: consequential provisionMental Health Act 1983 (c. 20)1 In section 37(1A) of the Mental Health Act 1983 (powers of courts to order hospital admission or guardianship)—
(a) in paragraph (za), after “section” insert “1(2B) or”, and(b) in paragraph (aa), after “section” insert “139(6B), 139A(5B) or”.Criminal Justice Act 1988 (c. 33)2 In section 36(2)(b) of the Criminal Justice Act 1988 (reviews of sentencing)—
(a) in sub-paragraph (zi), after “section” insert “1(2B) or”, and(b) in sub-paragraph (ia), after “section” insert “139(6B), 139A(5B) or”.Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)3 The Powers of Criminal Courts (Sentencing) Act 2000 is amended as follows.
4 (1) Section 12 (absolute and conditional discharge) is amended as follows.
(2) In subsection (1), for the words from “section 110(2)” to “2006” substitute “a provision mentioned in subsection (1A)”.
(3) After that subsection insert—
“(1A) The provisions referred to in subsection (1) are—
(a) section 1(2B) or 1A(5) of the Prevention of Crime Act 1953;(b) section 51A(2) of the Firearms Act 1968;(c) section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988;(d) section 110(2) or 111(2) of this Act;(e) section 224A, 225(2) or 226(2) of the Criminal Justice Act 2003;(f) section 29(4) or (6) of the Violent Crime Reduction Act 2006.”5 In section 100(1A) (offenders under 18: detention and training orders), for paragraphs (a) and (b) substitute—
“(a) section 1(2B) or 1A(5) of the Prevention of Crime Act 1953 (minimum sentence for certain offences involving offensive weapons);(b) section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988 (minimum sentence for certain offences involving article with blade or point or offensive weapon).” 6 (1) Section 130 (compensation orders against convicted persons) is amended as follows.
(2) In subsection (2), for the words from “section 110(2)” to “2006” substitute “a provision mentioned in subsection (2ZA)”.
(3) After that subsection insert—
“(2ZA) The provisions referred to in subsection (2) are—
(a) section 1(2B) or 1A(5) of the Prevention of Crime Act 1953;(b) section 51A(2) of the Firearms Act 1968;(c) section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988;(d) section 110(2) or 111(2) of this Act;(e) section 224A, 225(2) or 226(2) of the Criminal Justice Act 2003;(f) section 29(4) or (6) of the Violent Crime Reduction Act 2006.”7 (1) Section 146 (driving disqualification for any offence) is amended as follows.
(2) In subsection (2), for the words from “section 110(2)” to “2006” substitute “a provision mentioned in subsection (2A)”.
(3) After that subsection insert—
“(2A) The provisions referred to in subsection (2) are—
(a) section 1(2B) or 1A(5) of the Prevention of Crime Act 1953;(b) section 51A(2) of the Firearms Act 1968;(c) section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988;(d) section 110(2) or 111(2) of this Act;(e) section 224A, 225(2) or 226(2) of the Criminal Justice Act 2003;(f) section 29(4) or (6) of the Violent Crime Reduction Act 2006.”8 In section 164(3) (further interpretive provisions)—
(a) in paragraph (aa), after “section” insert “1(2B) or”, and(b) in paragraph (ba), after “section” insert “139(6B), 139(5B) or”.Criminal Justice Act 2003 (c. 44)9 The Criminal Justice Act 2003 is amended as follows.
10 (1) Section 142 (purposes of sentencing: offenders aged 18 or over) is amended as follows.
(2) In subsection (2)(c), for the words from “section 1A(5)” to “detention for life for certain dangerous offenders)” substitute “a provision mentioned in subsection (2A)”.
(3) After that subsection insert—
“(2AA) The provisions referred to in subsection (2)(c) are—
(a) section 1(2B) or 1A(5) of the Prevention of Crime Act 1953 (minimum sentence for certain offences involving offensive weapons);(b) section 51A(2) of the Firearms Act 1968 (minimum sentence for certain firearms offences);(c) section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988 (minimum sentence for certain offences involving article with blade or point or offensive weapon);(d) section 110(2) or 111(2) of the Sentencing Act (minimum sentence for certain drug trafficking and burglary offences);(e) section 224A of this Act (life sentence for second listed offence for certain dangerous offenders);(f) section 225(2) or 226(2) of this Act (imprisonment or detention for life for certain dangerous offenders);(g) section 29(4) or (6) of the Violent Crime Reduction Act 2006 (minimum sentence in certain cases of using someone to mind a weapon).” 11 (1) Section 142A (purposes of sentencing: offenders under 18) is amended as follows.
(2) In subsection (4), for paragraph (b) substitute—
“(b) to an offence the sentence for which falls to be imposed under a provision mentioned in subsection (5), or”.(3) At the end insert—
“(5) The provisions referred to in subsection (4)(b) are—
(a) section 1(2B) or 1A(5) of the Prevention of Crime Act 1953 (minimum sentence for certain offences involving offensive weapons);(b) section 51A(2) of the Firearms Act 1968 (minimum sentence for certain firearms offences);(c) section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988 (minimum sentence for certain offences involving article with blade or point or offensive weapon);(d) section 226(2) of this Act (detention for life for certain dangerous offenders);(e) section 29(6) of the Violent Crime Reduction Act 2006 (minimum sentence in certain cases of using someone to mind a weapon).”12 (1) Section 144 (reduction in sentences for early guilty pleas) is amended as follows.
(2) In subsection (2), for the words from “an offence” to “nothing” substitute “an offender who—
(a) is convicted of an offence the sentence for which falls to be imposed under a provision mentioned in subsection (3), and(b) is aged 18 or over when convicted,nothing”.(3) In subsection (3)—
(a) for “section 1A(6)(a)” substitute “section 1(2B) or 1A(5)”, and(b) for “section 139AA(8)(a)” substitute “section 139(6B), 139A(5B) or 139AA(7)”.(4) In subsection (4), for the words from “an offence” to “nothing” substitute “an offender who—
(a) is convicted of an offence the sentence for which falls to be imposed under a provision mentioned in subsection (5), and(b) is aged 16 or 17 when convicted,nothing”.(5) In subsection (5)—
(a) for “section 1A(6)(b)” substitute “section 1(2B) or 1A(5)”, and(b) for “section 139AA(8)(b)” substitute “section 139(6B), 139A(5B) or 139AA(7)”.13 In section 150(2) (community order not available where sentence fixed by law etc), for paragraphs (a) and (b) substitute—
“(a) falls to be imposed under section 1(2B) or 1A(5) of the Prevention of Crime Act 1953 (minimum sentence for certain offences involving offensive weapons), or(b) falls to be imposed under section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988 (minimum sentence for certain offences involving article with blade or point or offensive weapon).”14 (1) Section 152 (general restrictions on imposing discretionary custodial sentence) is amended as follows.
(2) In subsection (1)(b), for the words from “section 1A(5)” to the end substitute “a provision mentioned in subsection (1A).”
(3) After that subsection insert—
“(1A) The provisions referred to in subsection (1)(b) are—
(a) section 1(2B) or 1A(5) of the Prevention of Crime Act 1953;(b) section 51A(2) of the Firearms Act 1968; (c) section 139(6B), 139A(5B) or 139AA(7) of the Criminal Justice Act 1988;(d) section 110(2) or 111(2) of the Sentencing Act;(e) section 224A, 225(2) or 226(2) of this Act;(f) section 29(4) or (6) of the Violent Crime Reduction Act 2006.”15 (1) Section 153 (length of discretionary custodial sentences: general provision) is amended as follows.
(2) In subsection (2), for the words from “section 1A(5)” to “this Act” substitute “the provisions listed in subsection (3)”.
(3) After that subsection insert—
“(3) The provisions referred to in subsection (2) are—
(a) sections 1(2B) and 1A(5) of the Prevention of Crime Act 1953;(b) section 51A(2) of the Firearms Act 1968;(c) sections 139(6B), 139A(5B) and 139AA(7) of the Criminal Justice Act 1988;(d) sections 110(2) and 111(2) of the Sentencing Act;(e) sections 226A(4) and 226B(2) of this Act;(f) section 29(4) or (6) of the Violent Crime Reduction Act 2006.”16 (1) Section 305(4) (interpretation of Part 12) is amended as follows.
(2) In paragraph (za)—
(a) for “subsection (5) of section 1A” substitute “section 1(2B) or 1A(5)”, and(b) for “that subsection” substitute “that provision”.(3) In paragraph (aa)—
(a) for “subsection (7) of section 139AA” substitute “section 139(6B), 139A(5B) or 139AA(7)”, and(b) for “that subsection” substitute “that provision”.Coroners and Justice Act 2009 (c. 25)17 (1) Section 125(6) of the Coroners and Justice Act 2009 (sentencing guidelines: duty of court) is amended as follows.
(2) In paragraph (ea)—
(a) for “section” substitute “sections 1(2B) and”, and(b) for “offence of threatening with offensive weapon in public” substitute “certain offences involving offensive weapons”.(3) In paragraph (fa)—
(a) for “section” substitute “sections 139(6B), 139A(5B) and”, and(b) for “offence of threatening with” substitute “certain offences involving”.”