Mental Capacity Act 2005: Small Payments Scheme

Baroness Berridge Excerpts

Thursday 2nd March 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, I cannot comment on how fund providers operate their relevant systems. The number of adults holding child trust funds who have become adults and lack capacity is quite small—it is thought to be around 1% to 2% percent—but it is none the less significant and the risk of abuse is quite prominent.

[Baroness Berridge (Con)]

My Lords, I have recently been alongside someone who had tried to become an appointee. Can my noble friend the Minister please talk to the DWP about its system to become an appointee for somebody, because it is not simple? Is there not then a case for basically not duplicating the processes? Once you get through the appointee hoops, which are considerable, should you not automatically get a deputyship—so you just have to do it once?

[Lord Bellamy (Con)]

My Lords, the Government are extremely reluctant at the moment to confuse two things. One is the processes by which the DWP works, and the other is the legal process by which an adult lacking capacity can have somebody else act on their behalf. That is a job for the Court of Protection. It is not just a question of child trust funds, although that is an important issue. This can go on throughout a child’s life, and it is quite likely that a child lacking capacity who reaches the age of 18 will continue to lack capacity for many years to come, and there will be important decisions to take. That really should be supervised by the Court of Protection and not by the DWP.

Prison Capacity

Baroness Berridge Excerpts

Tuesday 6th December 2022 Lords Chamber

[Lord Bellamy (Con)]

My Lords, in relation to specific costs, no, but in relation to the general question of whether we should improve and develop educational facilities in prison, particularly so that prisoners can read, yes, the Government entirely agree with that aspiration.

[Baroness Berridge (Con)]

My Lords, I serve on the Joint Committee on the Draft Mental Health Bill, which has been mentioned before. In a secure mental health hospital, there will be prisoners who are civilian patients as well as people who have been transferred from the prison estate. Hopefully, of course, they are treated and then are well enough to go back into the prison estate. However, do we have an issue here of people still being within secure mental health hospitals, where beds are scarce, because they cannot be moved back into the prison estate?

[Lord Bellamy (Con)]

We do have an issue, as my noble friend puts it, around managing mental health in the community and among prisoners. I hope the Mental Health Bill will help to address that. This is an ongoing problem of which the Government are well aware and to which we are working towards solutions.

Lammy Review

Baroness Berridge Excerpts

Monday 28th November 2022 Lords Chamber

[Lord Bellamy (Con)]

My Lords, certainly, judges are provided with domestic abuse training. The Equal Treatment Bench Book places particular emphasis on avoiding bias in sentencing and related outcomes. The judiciary, whose task it is to ensure absolute absence of bias, is well appraised of this problem and working on it.

[Baroness Berridge (Con)]

My Lords, I am currently serving on the Joint Committee scrutinising the draft Mental Health Bill. The Lammy Review made it clear that black and minority ethnic prisoners are more likely to have undiagnosed mental health issues, learning disabilities or autism. Will my noble friend the Minister confirm that the scheme of court liaison mental health practitioners being in all courts when people appear in front of them for the first time is going to be rolled out? Will priority be given to youth courts, as it is quite common for young offenders under 21 to have a patchy record in school, which is obviously one of the main places they would be diagnosed as having a learning disability or being autistic?

[Lord Bellamy (Con)]

I can give my noble friend the assurance that she seeks. Through the community sentence treatment requirements programme we are working with health agencies to improve access to mental health services for those who need them. In particular, liaison and diversion services are funded by the NHS and should now be present in all police custody suites and magistrates’ courts to provide early intervention for vulnerable people, acting as a point of referral and providing a prompt response to concerns raised by police, probation or youth offending teams. I hope that has addressed the question asked.

Coroners (Determination of Suicide) Bill [HL]

Baroness Berridge Excerpts

2nd reading
Friday 28th October 2022 Lords Chamber

[Baroness Berridge (Con)]

My Lords, I begin by thanking the right reverend Prelate for bringing his Private Member’s Bill for the third time before Parliament. If he believed in luck, I would say “third time lucky”. I am pleased to see that the Bill has been widened beyond gambling being recorded as a relevant causative factor in a death by suicide.

I wish to briefly address one of the reasons given previously by His Majesty’s Government as to why this sensible piece of legislation is not possible and one of the implications for our cultural understanding of suicide. His Majesty’s Government have said that if we introduce a statement of relevant causative factors for deaths by suicide then we would have to introduce it for all the causes a coroner might state for a death—namely, misadventure, unlawful killing, accident et cetera. However, suicide as a cause of death stands alone and needs to be treated separately, as it is the only cause of death that will be affected potentially by any introduction of assisted dying or assisted suicide legislation. No one would suggest that we would have assisted dying by way of misadventure or accident; sadly, I think we might end up with unlawful killing. Why would the Government not want to assist parliamentarians to have this evidence when next considering such legislation, which, I might add, I strongly oppose?

The right reverend Prelate outlined the comments from the coroner in the inquest into the tragic suicide of Molly Russell. I have high hopes for the Online Safety Bill and the duty of care it will create to ensure that, when on the internet, children and vulnerable adults do not have access to the type of material Molly viewed. However, any provision, if legalised, on assisted dying or assisted suicide would of course be on the internet, so legislation is also going to have to create a miraculous Chinese wall to ensure lawful assisted suicide information is kept away from other footage, such as that which Molly viewed.

We know from the work done, particularly by the right reverend Prelate, that we would need to potentially block from gambling sites, or prescribe limits on, links to any lawful assisted suicide website. I hope this brief description of this information on the internet outlines the difficulties we would have in this task. I think it might be impossible, but without the causes and factors behind suicides, as outlined in this Bill, it is definitely impossible.

Further, this data would enable more detailed analysis of the role of mental health in deaths by suicide. I am currently serving on the pre-legislative scrutiny committee of the draft mental health Bill. The current Mental Health Act sits on the hard-won moral tectonic plate that suicide is not criminal but to be prevented and not encouraged or aided. Under the Mental Health Act, even when you have capacity—a factor I think many people do not realise—the state can detain you when you are ill and can forcibly treat you to avoid you committing suicide. Recently, a healthy 23 year-old woman in Belgium chose to be euthanised although she was physically fit and well but was mentally unwell after being in the vicinity, although uninjured physically, of a terrorist incident. The data on causes of suicide that this Bill asks for will enable parliamentarians to consider, when looking at assisted suicide, whether it should be given on the basis of psychiatric illness alone. It is a controversial proposal.

The Government have always maintained that assisted dying or assisted suicide is a conscience issue for parliamentarians, but I would argue that not collecting this data is perilously close to the Government leaning in favour of such legislation. A recent peer-reviewed article by Dr Jones, in volume 11 of the Journal of Ethics in Mental Health, found that some assisted dying legislatures have seen increased non-assisted dying suicide rates. It is therefore essential for legislators to have such data to assess the risk of increasing the rates of suicide in England and Wales through the introduction of any such legislation.

It is a hard-won principle that the state should protect its citizens from harm, whether from foreign states, third-party actors, other citizens or themselves. I fear that we might tamper with this moral tectonic plate without the necessary data. So I hope that His Majesty’s Government will give the Bill the time in the other place that it needs to become law.

Magistrates

Baroness Berridge Excerpts

Thursday 7th July 2016 Lords Chamber

[Lord Faulks]

The noble Lord is right; it was as long ago as 2003 that this potential increase in sentence was statutorily allowed. A number of factors have been taken into account by successive Governments. He makes an important point about cost savings. He is quite right; it is, of course, much cheaper to use magistrates than go to the Crown Court and, if they have appropriate powers, it is more likely that magistrates will deal with the matter. We have to bear in mind—I think the noble Lord, Lord Beecham, directed his question towards this matter—the possible effect on the prison population and how magistrates will feel able, or want, to use any increase in powers. It is a difficult question.

[Baroness Berridge (Con)]

My Lords, my noble friend mentioned the incredibly high level of training and expertise that magistrates have. When looking at this Question in relation to today’s first Question, of course the overwhelming majority of motoring offences are also dealt with in the magistrates’ court. On training, will my noble friend the Minister please outline what plans the Government have to ensure that when driverless cars become a reality on our roads, with the potentially complex issues to do with the programming of those cars in the eventuality of an accident, we will still have the expertise in the magistrates’ courts to ensure that the overwhelming majority of such cases are tried in those courts?

[Lord Faulks]

My noble friend makes a good point. The senior presiding judge and HMCTS review the needs of the magistrates’ courts annually, including training for district judges and magistrates. All interested parties are consulted such as local Bench chairmen and local branches of the Magistrates’ Association. The training would include any new potential offences or situations identified through various routes. Clearly, they should include a new concept such as that to which my noble friend refers.

Court Proceedings: Written Transcripts

Baroness Berridge Excerpts

Tuesday 28th June 2016 Lords Chamber

Asked by

[Baroness Berridge]

To ask Her Majesty’s Government what steps they are taking to ensure that there is open justice, and in particular open access to transcripts of proceedings in open court, in the light of the availability of digital technology.

[The Minister of State, Ministry of Justice (Lord Faulks) (Con)]

My Lords, we recognise the importance of a transparent and open justice system. Transcripts of proceedings in open court are available on request, although safeguards are in place to protect vulnerable parties. Our reforms to courts and tribunals will make much better use of digital technology to ensure a more efficient, proportionate and accessible system for all.

[Baroness Berridge (Con)]

My Lords, I am grateful for my noble friend’s Answer, but on 27 April he stated that Her Majesty’s Government would make court proceedings more accessible and make it easier for the public to understand court proceedings. In April this year, I made a request via the Library for the sentencing remarks in a hearing in open court, and the cost per hour turned out to be £144 plus VAT. Will my noble friend undertake not only to use digital technology but to ensure that the Ministry of Justice gets value for money and that our courts are accessible? On investigation, it seems that numerous companies are operating to record proceedings in numerous parts of the country, so there also seems to be scope for economies of scale in this area.

[Lord Faulks]

I am grateful to my noble friend. She is quite right: she drew the ministry’s attention to her difficulties. There are a number of contracts in existence, and some of them have been extended at various times. The ministry is currently progressing a re-procurement of all court and tribunal transcription services, and new contracts are anticipated by the end of 2016. The cost of transcripts depends on the length of the hearing. There is a difference between sentencing remarks, by which we mean the remarks accompanying the judge actually passing sentence, and the sentencing hearing, which can be very much longer and cost something like £800 or £900 per day in the Crown Court and rather more in the High Court. If you can refine your search, it tends to be very much cheaper.

Lords Spiritual (Women) Bill

Baroness Berridge Excerpts

Thursday 12th February 2015 Lords Chamber

[Baroness Berridge (Con)]

My Lords, it is a relief to sit down to write a speech on this issue and think that just about everything has been said, so I shall be succinct but expand briefly on a point I have raised before. As I have lived in Stockport and fought in vain to represent it in the other place, I was particularly pleased to see that the first woman bishop to be appointed was the Bishop of Stockport.

I welcome this legislation as I wrote to this effect in The House Magazine many months ago outlining that whatever one’s view might be on church governance, the nation’s legislature is a different matter and women must be represented. I am grateful for the previous debates on this matter as they have enabled me to hear from my noble friend Lady Perry and others who have fought this battle for many years with compassion and grace. The next generation like me can sometimes forget how hard the going has been on an issue like this. This issue is also important due to the global nature of the Anglican communion and, of course, there are women bishops in many provinces already. I learnt from the right reverend Prelate the Bishop of Southwark that sometimes diocesan bishops are requested to travel overseas as somewhat of a representative of the Archbishop of Canterbury, such as his recent trip with the Holy See delegation to the Middle East. It would be such a powerful statement if on such occasions in the future the representative of the most reverend Primate is a woman.

However, you sometimes have to be careful about what you wish for as bringing in women could leave the major metropolitan centres of the north-west unrepresented for many years. The representative nature of the Bishops’ Benches is one of the things the Church of England prides itself on, so I hope that the fine tuning of the system to add Bishops to the Lords spiritual can be done in the same manner as the changes the House is gradually making before the whole Chamber is reformed. Is it really appropriate in the 21st century not to bring in automatically Birmingham and either Liverpool or Manchester over the diocese of Winchester which includes, merely legally at the moment, the Channel Islands, which are not part of the United Kingdom?

I turn now to the matter I wish to expand upon. The photograph of the bishops taken at the consecration of the Bishop of Stockport unfortunately raises a further issue for the Lords spiritual, which is the lack of racial diversity. In October 2015, it was a privilege to witness the most reverend Primate address 40,000 people at the ExCeL centre from the Redeemed Christian Church of God, a Nigerian-based denomination which is the fastest growing church in the UK. His apology and request for forgiveness for the past behaviour of some of the Anglican Church towards Britain’s black community was most moving. I hope it will lead to a true partnership and perhaps to leaders for the Anglican Church coming through joint initiatives with RCCG and Pastor Agu Irukwu, who I suspect the most reverend Primate would poach for the Anglican Church, given half a chance.

Is this issue of the lack of racial diversity unconnected to the matter I raised previously of the lack of diversity of educational and social background of diocesan leaders? Much of the racial diversity of our independent schools comes from overseas students who, of course, would be good to recruit, but surely not alone. Does this stone not need fully unturning and looking at? I am sorry to say that I was not entirely satisfied with the response of the most reverend Primate in a previous debate who said that when he has been involved in selection, background is never raised. As many noble Lords will have experienced, the issues are unconscious bias and barriers to entry. At the very least, they are worthy of investigation. Would the church not benefit from something like Vicar First mirroring Teach First for graduates? Not all the people I knew when I left university were able, through contacts, to raise a year or so’s support. Is the most reverend Primate satisfied that all the apprentices or volunteers that many churches have are on the London living wage as recommended by the Church of England? Of course, no one is asked outright what their dad did for a living or what type of school they went to. To use the analogy of racism again, I have had direct experience of people anglicising their names and suddenly finding that the same CV gets them a job interview. Both barriers to entry and unconscious bias are worthy of inquiry. I welcome the transparency that the Green proposals will bring, but without investigation, I remain to be convinced that the lack of social and educational diversity is not linked to the lack of racial diversity.

Finally, it may be time for us to stop speaking but not to down tools. The Anglican Church’s attitude to women is about more than allowing women bishops. It is so encouraging to see females in senior management roles in Lambeth Palace—Kay Brock is chief of staff, Jo Bailey Wells is chaplain and Ailsa Anderson is head of media, but it may be harder and take longer to change the culture within some parts of the Anglican Church. I hope to see that institution one day mirror the respect and value for my opinion displayed by the Lords spiritual. It is sometimes rather odd to be a younger person in a workplace such as this and to refer to your colleagues as bishops. I hope that attitude of respect and valuing opinion will find its way all the way down to the pews in the Anglican Church.

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”.”

Criminal Justice and Courts Bill

Baroness Berridge Excerpts

Monday 21st July 2014 Lords Chamber

[Baroness Howells of St Davids (Lab)]

My Lords, I had not meant to take part in this debate; I am neither a lawyer nor a judge. However, at one time in this Chamber today I felt I was being given the strong impression that only black boys carried knives in this country. I want to put on record that this is not so. In cases with which I have been involved in Greenwich, young men were killed with knives not because they had committed a crime but because they were black. I should like that to be put on the record.

[Baroness Berridge (Con)]

My Lords, I raised this matter at Second Reading and draw to the Committee’s attention the fact that the amendment was tabled by Nick de Bois, an Enfield MP, strongly supported by David Burrowes, another MP for the Enfield borough. It is a borough not unfamiliar with knife crime, which in some cases involves fatality. These are MPs who have direct experience and I hope that that ameliorates the suggestion that this provision is just a knee-jerk reaction. Knife crime has been an issue for Enfield for some time. It has also been drawn to the House’s attention by the Lord Chief Justice that we have a problem. Whether this is the correct solution is another matter but we have a problem with the carrying of knives by young people that is often seen as some kind of status symbol.

I remind your Lordships of what perhaps seems an obvious point. There have to be two convictions before this power comes into play. I have read of situations in the media in which people have carried penknives. One would have to possess these weapons,

“without lawful authority or reasonable excuse”.

This does not apply to anyone accidentally having a knife left over from pruning the roses or working on the farm at the weekend. These are people who are carrying knives without being able to provide an excuse. This power is supported by not only the former commissioner but the current Metropolitan Police Commissioner, who said:

“Where we are getting gang members or young people carrying knives and there is no excuse, then this is a serious matter for me”.

So we also have the Metropolitan Police saying that it wants additional powers in relation to knife crime. I have looked at the discretion given, and this is not a mandatory provision that necessarily would lead to injustice.

I should really like to highlight the issue of discrimination, and I strongly disagree with my noble friends on this. I raised this matter way back, in my maiden speech. There sometimes seems to be a disproportionately low response to victims of violent crime when they are not white. One must not forget that, in this situation, the figures from when I checked—I thank the Library—show that one is twice as likely in London to be a victim of knife crime if you are black. From my experience of speaking to community leaders, they are extremely concerned about the effect of this on their own communities. They are the victims of this, so it is flawed to suggest that the provision is discriminatory because of stop-and-search powers. I accept that elements of our criminal justice system have been discriminatory over the years and one can point to the discussion in the other place involving the Home Secretary, who has brought in a review of stop and search. Her Majesty’s Inspectorate of Constabulary has looked at this, and the Home Secretary had the support of Diane Abbott, of all people. We had grasped a nettle that had not been grasped for a long time.

This Government have also rid the ethnic-minority communities of the injustice of a DNA database that held innocent people’s DNA. These issues have been addressed and it ignores the effect on victims in minority communities if we refer only to the perpetrators.

[Baroness Walmsley (LD)]

My Lords, I had not intended to speak in this debate and will do so briefly. I have listened carefully to those who oppose my noble friend Lord Marks, and I am afraid that I am not convinced by them for two reasons. First, the cases that they cite are ones in which the judge would almost certainly have sent the person to prison anyway. When somebody carries a knife with serious intent and uses it, that is when people go to prison. We do not need the clause for that reason.

The other point has not been mentioned at all. The clause is supposed to be a deterrent, mainly for young people, to prevent them getting involved in carrying knives in the first place, which is a very laudable objective. However, let us remember the development of children’s brains. The majority of the development of children’s brains happens between birth and three years of age, but there is a boost during the teenage years. That is when risk taking comes in. If noble Lords consider that, they will realise that a deterrent such as this very small prison sentence—I quite agree with the noble and learned Lord, Lord Woolf, that it will do nothing but harm—will certainly not deter someone whose brain is telling them, “Now you can take risks, and you should”.

--- Later in debate ---

However, the important thing is to secure the criminalisation of this behaviour. Long gone are the days when we should regard physical harm as a necessary ingredient of an offence against the person. The degree to which malicious individuals can hurt innocent victims by publication on the internet of images of their most intimate moments is ample justification, I suggest, for our invoking the criminal law to prevent and punish such behaviour. I beg to move.

[Baroness Berridge]

My Lords, I rise to speak to Amendment 40 in this group. It seeks to introduce a new criminal but also sexual offence of posting on the internet what has been outlined as revenge pornography. This is one of those rare situations where I do not advise noble Lords to go on to the internet to look first-hand at these sites; they are truly appalling. As my noble friend Lord Marks has outlined, this is a growing problem that affects mainly women, particularly when naked or sexually explicit pictures or videos of them have been posted on the internet without their consent. Obviously these images are put online almost exclusively by ex-partners, and there is generally an intention—which is why our clause is drafted as it is—to sexually humiliate the former partner. Often the contact details of the victim as well as sexually abusive or malicious comments are added when the image is posted.

There are dedicated websites that are easily accessible; this is not a niche problem. The UK Safer Internet Centre, which is working in this area, has stated that some 20 to 30 websites in the United Kingdom are hosting this type of material. Apparently it has become a consumer product on pay-per-view. Many of the websites attract huge volumes of traffic, and the more often an image is looked at, the more likely it is that when you Google search your own name, the first thing that will come up in connection with your name is these images that have been posted, which is particularly degrading.

These are pictures that the victim may regret were taken in the first place, but, as my noble friend outlined, there would have been every expectation that they were private and would not be viewed, sometimes within days, by thousands of people on the internet, including perhaps work colleagues and friends at the school gate. Of course, the impact can be devastating. Victims have described that they feel like they have become a porn star without their knowledge or consent. There are also devastating impacts on employment prospects as well as on personal reputation and career.

This is another situation where the law has not quite kept pace with the internet. I am grateful for my noble friend’s contribution to the drafting of the proposed new clause, which is based on the offence of voyeurism. I hope that the Minister will take all of these proposed clauses away in order to consider what would be the most appropriate formulation. However, we would submit that this should be classified as a sexual offence. Currently, these matters do not fall within the ambit of the Protection from Harassment Act 1997 because they are not a course of conduct. They are also not caught by the Obscene Publications Act 1959 because the images are not always classified as being obscene.

It is important not only to make this behaviour criminal, but for the police to know that it is a criminal act in order that they can take action at police level and against the internet service providers. Once this is an offence, they will have a mechanism by which to remove these images, because many victims are complaining that without such clarity, they find that although they make submissions to the internet service providers again and again, the images are not being removed from these websites. Of course, the longer they remain posted, the greater the damage that is done to the victims.

At this point I wish to pay tribute to the very brave women who have put their head above the parapet and have spoken out in order to bring attention to this issue. I mention in particular Laura Higgins and the work of organisations such as the UK Safer Internet Centre. I am also pleased that Women’s Aid, Welsh Women’s Aid and Scottish Women’s Aid all support the amendment tabled by myself and my noble friend Lady Morris. Although this matter was not raised in the other place, honourable Members including my right honourable friend Maria Miller hosted an adjournment debate in June to bring it to the attention of Members of Parliament.

At the moment, Amendment 40 does not include any reference to penalties, but I hope that my noble friend will consider the similar offence of voyeurism, which carries with it a sentence of imprisonment of up to two years. We believe that this offence should attract the same scale of penalty. It is only by showing our abhorrence of the sexual abuse of these people that they will be able to secure justice.

This type of behaviour is becoming an ever more pressing problem, and other countries such as the United States and Israel have had to bring forward legislation to catch it. I believe that we should take this opportunity and I am grateful that the Minister is in listening mode in relation to this matter. I hope that that we can come up with an acceptable formulation of what the offence should be in order to offer these victims some protection.

[Baroness Grender (LD)]

My Lords, I apologise for having been unable to attend Second Reading. I will speak in particular in favour of Amendments 37, 38 and 39. To hear people talk about revenge porn, you would think it had only just been invented, but the divorce in 1963 of the Duke and Duchess of Argyll involving the infamous image of a headless man tells a different story. The dramatic difference is that of course today we have the ability to reproduce a picture a thousand times without the permission of the individual concerned. I will focus on one aspect of this, which is the motive to hurt or humiliate the individual.

I do not believe that on the whole the motivation is sexual gratification, as outlined in Amendment 40. Perhaps I may put before the Committee three case studies that will help to illustrate this. The first is of a lady who was with her partner for two years. They planned to buy a home together so it was a trusting relationship, but after it broke down, her ex published photos of her and labelled her as a “whore” and a “slut”. He even set up an identity pretending to be her and invited humiliation and insults. When she went to the police they were unable to help, and the website refused to remove the images, in spite of regular requests.

The second example is that of a woman whose images were posted on a website called myex.com. The images spiralled from website to website gathering views, comments, abuse and humiliation. While some porn sites actually responded to the woman’s specific requests to remove the images, myex.com did not. She currently remains terrified of family and work colleagues seeing the images. We need to be conscious of the fact that men can also be victims, although most are women. I cite the case of a 29 year-old man who exchanged images having been sent fake images by his girlfriend. His ex has shared them, particularly with his work colleagues.

These cases are ones that involve not naïve teenagers—although obviously I believe that they should be protected as well—but people who have been in trusting relationships where the trust has broken down. What has been done is something that we should clearly define as a crime. These people are our sisters, brothers, daughters and sons, and what they need is protection against these vile acts that are committed without their consent. The inflicting of pain and humiliation is the only motive, and the individual who publishes such images should know that when they do it, they are committing a crime. I hope that the Minister will reflect that when he considers a possible amendment to the Bill.

Assisted Dying Bill [HL]

Baroness Berridge Excerpts

Friday 18th July 2014 Lords Chamber

[Baroness Berridge (Con)]

My Lords, as the youngest Peer speaking today, I suppose that I should be the least concerned about a Bill dealing with death. However, I believe that it is mine and younger generations who could be most affected by the Bill. We will live out the effects of the erosion of the social norm that we not only dissuade suicide but positively protect people from taking their lives, whoever they are.

The suspect in the custody suite and the convicted criminal in prison are put on suicide watch if necessary. Paracetamol packets are now limited to 32 tablets, Beachy Head is patrolled and the Golden Gate Bridge will soon have a net. King Edgar criminalised attempting suicide—ironically, probably to have men to fight wars—but we want our population alive as we are all equally precious. I have read with interest the reasoning in Hansard in 1961. The law criminalises assistance at a time of someone’s greatest vulnerability: when contemplating taking one’s own life. Although suicide and prostitution are not appropriate to be crimes, assisting suicide and controlling prostitution for gain are. The criminal law is upholding societal values. You may walk past the man on the bridge who is about to jump, as you are not required to rescue him, but if you intervene you do so to preserve life.

Noble Lords need only go online to see how necessary this reasoning is, and how relevant it is to the challenges that today’s young people face. Tallulah Wilson’s mother stated that companies should,

“withdraw their advertising from those sites who continue to host inappropriate self-harming and suicide-promoting blogs to stop this poison spreading”.

Her 15 year-old daughter, caught in a toxic digital world, threw herself under a train. Jango.com offers “Suicidal Tendencies” music, and it is estimated that between one in 12 and one in 15 young people in the UK self-harm. I contacted the vicar of a busy Oxford church who has spent years dealing with students—there are 1,200 in his congregation—and said, “What about self-harm?”. His text reply was, “EPIDEMIC”.

We are so much more than autonomy. Even in our youth we are actually dependent and often weak and vulnerable. Society’s value of human dignity cannot be collapsed into mere autonomy, as the Bill seeks to do. “Are you not compassionate to these people’s suffering and their right to choose?”, you might ask me. Of course I am, but law is about more than a small group of individuals’ rights against the state. Herein lies the main weakness of our human rights law; it fails to take into account the rights of the rest of society. I am a supporter of the European convention. We may be heading towards the constitutional irony that even if there were a declaration of incompatibility, Parliament could leave the law unchanged and we might in fact find ourselves backed by the Strasbourg court rather than undermined.

Law creates culture and affects the values of future generations. The decision to give health professionals, of all people, a role in assisting suicide would inevitably send a message about suicide itself and cannot be vacuum-packed away from the rest of our society. We legislate for a real and deeply imperfect world, a world not of speculation but of Westbourne View and Mid Staffordshire hospital—a world where increasingly you are valuable only if you are productive, good-looking, rich or in the media regularly. However, we also legislate now for a virtual world that is often explored only by the young, and is often far scarier and far more difficult to police. The Bill undermines the societal value that we discourage suicide, and for this and other reasons I oppose it.