Victims and Prisoners Bill

Baroness Brinton Excerpts

Committee stage
Wednesday 24th January 2024 Lords Chamber

Moved by

[Baroness Brinton]

1: Clause 1, page 1, line 7, at end insert—
“(aa) witnessing criminal conduct,(ab) having subsequent responsibility for care because of criminal conduct,(ac) experiencing vicarious harm due to criminal conduct”Member’s explanatory statement
This amendment aims to extend the definition of a victim under Part 1 to include people who support and provide care for victims of serious sexual and violent crimes.

[Baroness Brinton (LD)]

My Lords, as we start this Bill, from these Benches we are pleased to see that the first part of it relates to victims. Even though we want to improve the Bill, I thank the Minister for the meetings and dialogue we have had so far and look forward to more as the Bill progresses.

Amendment 1, in my name, starts this group on the definition of a victim. I thank Restitute, the lived-experience CIC, which supports third-party victims of crime—whether they are the parents, carers, partners, siblings or loved ones of people who have survived sexual abuse, sexual violence or other serious crimes including domestic violence and stalking. It specialises in building the service that its members wish they had received, and which professional service providers often do not spot, nor have the resources to be able to provide: namely, crisis support in the short term and, above all, someone to help them and their loved one, who is the direct victim, to navigate the new world of professionals they encounter during their case.

Why is this important? Unless you have been the victim of such a crime, you cannot understand how it affects those who care for you. Most professionals would not recognise that your loved ones may also be victims of vicarious harm due to the crime. More than that, parents may have to give up work, partners need time off and children have poor educational outcomes. Families that have previously had two incomes often see that cut in half at a stroke. Carers are not entitled to any therapeutic or emotional support. The impact on their health and well-being is devastating. That is before we even face the problems related to family breakdown.

Most of Part 1 of the Bill focuses on the rights of the direct victim of the crime, and the services that they will encounter afterwards. One of the worst examples is the impact of child sexual abuse on victims/survivors, including on non-perpetrator family members. The impacts on mothers, for example, can mirror the experience of their child. Social services can also force them to make rapid and difficult decisions at the exact moment they are coming to terms with the abuse that their child has suffered. Healthcare and the criminal justice system often do not recognise that the impact goes beyond the direct victim.

This can include siblings who are children themselves but who, under the Bill, would not be able to access any support under the victims’ code. The siblings of abused children may have feelings that they have let down their sibling because they could not prevent the incident, or may be fearful that in the future it may happen to them. These children also see distressed adult carers struggling to navigate the system, which currently does not recognise them as victims either. Without support these families struggle, and it becomes harder for all of them to recover from the incident.

Amendment 1 extends the definition of a victim of crime to include someone who is

“witnessing criminal conduct … having subsequent responsibility for care because of criminal conduct … experiencing vicarious harm due to criminal conduct”.

I have also added my name to Amendment 2, tabled by the noble Baroness, Lady Finlay of Llandaff, which would ensure that bereaved victims of homicide abroad are given the same support as victims of homicide within the UK. These victims not only face the extreme distress of losing their loved one in a horrible way but have to deal with the criminal justice systems of foreign jurisdictions.

Many years ago, my sister worked for Thomson Holidays. Her role was to deal with the immediate aftermath of death—including homicide—of her holiday- makers. Once the families had returned home, for many, having to deal with an overseas criminal justice system was even more bemusing, and they felt very isolated. We know that just being the family survivor of a homicide is hard enough.

I also support the other amendments in this group, all of which raise key questions about the definition of a victim of crime or try to establish how victims can get parity of treatment at their review—as in Amendment 8—whether they are victims of a perpetrator serving a custodial sentence or a perpetrator being detained under the Mental Health Act 1983. Amendment 3 adds in a person being killed by a family member such as a dangerous driver. Amendment 4 adds serious anti-social behaviour. Amendment 12 takes us into the debate on the content and context of the victims’ code, and states which services must be involved in decisions regarding leave or discharge for the perpetrator. Currently, the victim is far too often the last person to hear that the perpetrator has been released. That is unforgivable. Amendment 19 would ensure that victims have information to understand the justice system and relevant state agencies.

The Government will have gathered that noble Lords across your Lordships’ House believe that the definitions in Clauses 1 and 2 are too narrow and will exclude certain people who are seriously affected but not defined as a victim. I look forward to the Minister’s response. In the meantime, I beg to move Amendment 1.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, Amendment 3 acknowledges that the definition of victim in the Bill is quite broad, and that will mean, I hope, that as many victims as possible are supported by the victims’ code and related services. However, I want to probe the Government as to whether they intended the definition of victim to be so broad as to include the close family of a person who died as a direct result of their own criminal conduct; for example, by dangerous driving or possessing and consuming illegal drugs.

Clause 1(2) defines a victim as including

“where the death of a close family member of the person was the direct result of criminal conduct”.

This appears to include where the deceased caused their own death by their own criminal conduct. This broadness is underlined by Clause 1(5), which makes it “immaterial” whether anyone has reported the criminal conduct, or if anyone has been charged with, or convicted of, an offence.

The family of someone who dies as a result of consuming illegal drugs are victims of the Government’s ideological war on drugs. The Government refuse to treat drug use as a health issue and to implement a safe, regulated market of drugs that would take the multi-billion pound drugs trade out of the hands of criminal gangs.

Can the Minister please clarify whether it is the Government’s intention that family members of people who die as a result of their own criminal conduct will be supported by the victims’ code and the associated support services provided to victims?

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[Lord Bellamy (Con)]

I am grateful to the noble Lord for that intervention and entirely accept the point he makes about the variability across the country. Although this evening we are not on Clause 6 and supplementary Clause 11, for example, or Clause 10, about code awareness and reviewing compliance by criminal justice bodies, one of the main drivers of the Bill is to raise the standard of victim support equally across the country; to publish league tables; to have the data; to put pressure, if you like, by almost shame and stigma on those that are not performing as well as they should so that it is publicly known; and, in extreme cases, to give directions that they need to improve and so forth.

The steps we need to think about are how we make the various parts of the legislation consistent and operational, what role the code plays in anti-social behaviour when it is criminal conduct, as it often will be, and how we operationalise the way in which particular police forces and other agencies offer consistent services across the country. That is my thought on this point.

[Baroness Brinton (LD)]

On this particular point about anti-social behaviour, Louise Lotz was a friend of mine. The problem was that her local police force did nothing about the earlier stages of anti-social behaviour. One of the things that this amendment is trying to achieve is that police forces just watch the pattern of anti-social behaviour; if they see it going up, their response should also start to change. I wonder whether the Minister will take that into account. I look forward to joining any meeting about that as well.

[Lord Bellamy (Con)]

I certainly take that into account. I again think that we collectively need to understand a little more about what the Criminal Justice Bill progressing through the other place is doing about this, because the problem of anti-social behaviour is that it exists and is not being controlled. That Bill is trying to address that problem. Here we are dealing with the victims, which in some ways is the end result, rather than the fact that it is happening in the first place, so tackling it and what is happening in the first place is probably a very important aspect that we need to understand further. I take all these points, and I think we should take it further collectively as soon as we can.

Then we come to the difficult issue of homicide abroad. I hope that nobody infers that the Government do not have enormous sympathy for those who suffer these very difficult situations, but I respectfully suggest that a crime of homicide committed abroad is in a slightly different category, as far as the victims’ code is concerned, from a crime of homicide committed in this country. Clearly, the various rights under the code —for example, the right to make a victim statement—as well as the nature of the offence, what the criminal processes are and so forth are rather different if we are talking about a crime that has been committed in South America or somewhere outside this country. The responsibility for looking after victims of homicide abroad falls primarily on the Foreign, Commonwealth and Development Office, which offers support through the homicide service. Noble Lords may well say that it is not adequate support or enough support.

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[Baroness Brinton (LD)]

I am very grateful to the Minister for his detailed responses to all noble Lords who have spoken in this debate on a range of different issues, even though they are all part of the concern about some of the holes in the system. I thank him for offering some meetings, which I think is extremely useful, because as I think he will have heard from the debate, we all have a reasonable amount of knowledge and not necessarily the same knowledge.

On his comments on my Amendment 1, I absolutely accept that my proposed new paragraph (aa), inserting “witnessing criminal conduct”, might already be covered earlier in Clause 1. Proposed new paragraphs (ab) and (ac) are not covered at all. They are the direct consequences for a family member or person close to somebody who has had a very traumatic experience. They would have their life changed in all the ways that I described. I would also welcome a meeting on that to discuss how the Minister believes that it is already covered, because as far as I can see, it is not.

I want to make a more general point about the Bill. The Minister, uniquely, has his four As for what we should seek to achieve—the victims being aware, access, accountability by those providing services, and it being affordable. One of the points that the noble Baroness, Lady Finlay, made is that costs may not actually be so great, providing that the first, second and third categories are completely fulfilled. That is an area where—as we have said to him in private meetings already—there will be cost savings. Not all of them will be to the Home Office or the justice system, but there will be substantial savings in healthcare and in social services, particularly where children are involved, if the victims’ code is on a statutory footing and applied across the board. He is right that changing the culture is vital. The problem is that if you do not give public organisations targets, they do not work to them, and the real problem we have here is that there is no onus on the services to make sure that those are provided for. With that, I beg to leave withdraw my amendment.

Amendment 1 withdrawn.

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[Lord Hampton (CB)]

My Lords, I shall speak to Amendment 7 in the name of the noble Baroness, Lady Hamwee, to which I have added my name digitally. We start on the thorny subject, to which I think we will return, of children. I declare my interest as a secondary school teacher in Hackney.

I am delighted to have my noble friend Lord Meston with me, because he can say it far better than I can when we are trying to persuade the Government that children should be defined separately as victims. I will speak more about that in the sixth group of amendments.

I join the noble Baroness, Lady Sanderson, in saying that we need a definition of victim, which is not contained in Keeping Children Safe in Education—there seem to be variations on that—and we need to deal with the children of victims of modern slavery. I support all the amendments in this group.

[Baroness Brinton (LD)]

My Lords, on these Benches we add our thanks to the Children’s Commissioner for her very helpful round table and briefing notes. We also thank Hestia. I thank other noble Lords for their amendments, which specify children in the definition of a victim. The noble Lord, Lord Ponsonby, and my noble friends Lady Hamwee and Lady Benjamin made strong arguments to include who victims of abuse and criminal exploitation are, as well as those who are victims of modern slavery or human trafficking.

The amendment in the name of the noble Lord, Lord Hunt of Kings Heath, is a salutary reminder that children can be damaged by verbal harm. Intense and repeated verbal abuse is damaging. That is somewhat different from the point the noble Baroness, Lady Fox, was trying to make, which was about young people having arguments about matters of principle and offence; that is not what we are talking about.

Some years ago, I lived next door to a family who used the most extraordinary bad language to their toddler, time after time. The example I can just about repeat in your Lordships’ House was his name, which was “Paul, you little bleeder”. It went on, from worse to worse. As he grew up, we heard his own language mirroring that of his parents. One of the reasons that the noble Lord, Lord Hunt of Kings Heath, is right to propose this is that a child like that needs help and support from other agencies, as do his parents. It can be within a house, or it can be separate, but it is very different from the argument the noble Baroness, Lady Fox, was trying to make, and I hope she would accept that.

In a later group, probably next week, we will come to a group with much more detail about the protection required for child victims. All these amendments would ensure that definitions at the start of the Bill recognise that child victims have as many needs as adults. Agencies need to remind themselves that child victims may not always present in the same way as an adult and may not always need the same services as an adult. As the right reverend Prelate the Bishop of Manchester said, the lessons of Rochdale show that too many agencies do not always see children as victims. There, I am afraid that the police and some other agencies saw them as perpetrators. That is absolutely unacceptable.

I apologise again to the noble Baroness, Lady Fox, but I am picking up on the arguments she made about the lack of sympathy from officialdom and police. She went on to argue that it is important that people recognise that these children are victims. But this is not about sympathy; it is about getting help and support for these children. Sympathy may be part of it, but these amendments are not put forward to get sympathy for children; it is to change their lives, and to recognise that they are victims and will need specific services thereafter.

I am mindful of Nicky Campbell and others who were abused at the schools he attended and how their experience of not getting support early in their lives has affected them for their entire lives. This is not just an issue about children; it is about how those children grow up and manage their own lives. As I said at the end of the previous group, one can save money in the longer run on services by ensuring that victims—in this case child victims—get support as early as possible.

Finally, I echo the points made by my noble friend Lady Hamwee in Amendment 7 on the child victims of modern slavery or human trafficking. Hestia’s briefing was very helpful in reminding us that everyone in a family unit, especially the children, is affected by modern slavery and human trafficking, the consequences of which have long-standing impacts. So it is becoming clear from all parts of the House again that we need a separate definition of child victims. Their experiences, needs and the services they seek are all different.

[Lord Bellamy (Con)]

My Lords, I thank all noble Lords who have contributed to this very important debate on how we assist, support, improve, validate and value children who have suffered various kinds of abuse. The question—I respectfully suggest it is a somewhat technical question—is whether we need to amend this Bill, whether we should do it through further sections of the code, and how we should approach the problem.

The Government’s position at the moment is that a child who is a victim of abuse and exploitation which constitutes criminal conduct is already a victim under the Bill. So the large numbers of children, rightly referred to, who have apparently suffered domestic abuse in the past—children who have been through the recent domestic abuse inquiry and so forth—would, in the ordinary meaning of words, I think, have been subject to criminal conduct under Clause 1(1)(a). As the noble Lord, Lord Meston, pointed out, a child is undoubtedly a person, and the Government’s position is that this is very largely covered.

The phrase “child criminal exploitation” in itself implies someone who has been exploited by criminal conduct—which is already covered. So I hesitate to recommend to your Lordships that we need to further complicate the Bill itself, or the Act as it will eventually become, one hopes, by having further definitions. I accept the point made by my noble friend Lady Sanderson that there probably is some confusion at the moment in some of the guidance out there, and there is probably a great deal of inconsistency in how it is applied by different authorities in different parts of the country. As I said earlier, one of the purposes of the Bill is to ensure a much more even and consistent approach across the country by all relevant agencies.

It is important to clarify two things—and I respectfully suggest we should do this in the code rather than the Bill. The first is that we need, perhaps, to clarify that the phrase “criminal conduct” in the Bill does not imply that there has been a prosecution, let alone a conviction. It is whether, on the facts, this is a person who has suffered from the relevant conduct. Secondly, I suggest to your Lordships—and I cannot officially commit the Government tonight because I do not have the authority to do so—that we need when revising the code to have a detailed section on children, and special reference to the particular problems that have been rightly raised tonight, so that everybody has full guidance on what they are supposed to do with child victims of various kinds. That is probably a more apt way of proceeding than trying to redefine what we are talking about in the Bill. With the greatest respect, I suggest that “child criminal exploitation” is a somewhat difficult concept to define.

I could add that the act of manipulating, deceiving, encouraging, coercing or controlling a child almost certainly amounts to a criminal offence in itself—it does under Part 1 of the Modern Slavery Act, and we have been talking about modern slavery. We also have the wide terms under the Serious Crime Act 2007, in which encouraging or assisting an offence is also an offence. So I respectfully suggest that almost all the examples one can think of are already covered by the definition of “victim” in other Acts. At the moment the Government are not persuaded that we should be tinkering further with this particular definition, but I see the force of the argument that we need to have special mention and explanation as regards children when we come to revise the code and the guidance that accompanies it, and the duties of the various agencies to provide their services.

I suggest that the same broad analysis covers the important point raised by the noble Lord, Lord Hunt of Kings Heath, in relation to verbal abuse. It is already in Clause (1)(4)(a) that “harm” includes physical, mental, emotional or economic harm. I think that most kinds of verbal abuse are covered—but, again, this is a matter that is more for the way one drafts the code than it is for the Bill itself. That would be, I think, the Government’s position at the moment.

Victims and Prisoners Bill

Baroness Brinton Excerpts

2nd reading
Monday 18th December 2023 Lords Chamber

[Baroness Brinton (LD)]

My Lords, I declare my interest as a vice-president of the Local Government Association. I thank the noble and learned Lord, Lord Bellamy, and his officials for the helpful meetings and discussions that we have had so far. I look forward to further discussions as the Bill progresses. I also thank the very many organisations that have sent us briefings. I also look forward to hearing the maiden speech of the noble Lord, Lord Carter.

My victims of crime Private Member’s Bill was introduced in July 2017 because, despite promises in the 2015 general election, the Conservative Government had done nothing up to that point to deliver it. So it is something of a relief that the Government have finally produced this Bill, which has come from another place—although, as I will outline later, it falls short of what is needed for victims. A year ago, the proposed Bill was only about victims, and it is helpful that there was pre-legislative scrutiny in May 2022, as the noble Baroness, Lady Thornton, outlined. But the Bill published in March this year had two new substantive parts, one on victims of major incidents and one on prisoners and the parole system. Neither of those was subject to pre-legislative scrutiny, which is to be regretted.

It is also to be regretted that, despite arguing that this Bill is a priority repeatedly in public, it has taken months for it to be given time to be debated in both Houses. We on these Benches have repeatedly asked the Government to take action, but I am afraid that there has been dither and delay, with many more victims of crime lacking the statutory support that they need after their lives have been affected by some of the worst attacks, whether physical or psychological, and with no changes to a criminal justice system that is patchy in its support at best and downright dangerous and damaging for victims at worst. As we heard in a recent survey, 71% of victims are deeply unsatisfied.

There is one key and fundamental failing in Part 1, which echoes the failing in the current victims’ code. There is no statutory duty on those agencies that come into contact with victims to deliver the principles outlined in the Bill. It is absolutely no good saying to victims that they are entitled to a series of rights but then not placing a duty on service providers and agencies to deliver those rights to them. There are a number of uses of “should” in this Bill that we wish to see changed into “must”. Without that, there is no liability for failing to deliver the support and the code.

The reason for that is evident from the many briefing we have received, with horror story after horror story of how victims are traumatised twice: first by the crime and, secondly, by the system that fails to support them properly. The problem is that the Domestic Violence, Crime and Victims Act 2004 has not proved enforceable, as I discovered in 2008 when my stalker and harasser was finally caught. I wish that I could say that things have improved in the intervening 15 years, but they have not.

At the heart of the problems is inconsistency in application, whether in police forces, courts—criminal, civil and family—judgments, or all ancillary support mechanisms, often including local government. There are pockets of excellent practice, yes, but far too often for victims it is a complete lottery. This Bill is the perfect opportunity to remedy that. Training is needed throughout the criminal justice system, not just for specialist teams. I have been laying that training amendment for nearly 10 years now. Let us hope that we get some progress in the Bill on that.

When victims of rape have a first encounter with the police, it should be supportive, knowledgeable and understanding, rather than accusing them of “asking for it”, or—in the case of victims of spiked drinks—telling them it was their fault because they were drunk. This still happens. Independent legal advice and access to free transcripts of Crown Court hearings are also very necessary for victims of crime.

I echo the compliments about the role of the Victims’ Commissioner nationally and in London. Vera Baird, the noble Baroness, Lady Newlove, and Claire Waxman have done an amazing job, which none of us could have foreseen they would do with the few resources they have been given. It is working well. I wonder whether we now need to consider local victims’ commissioners, perhaps covering the same areas as police and crime commissioners; but it cannot be done by PCCs—it is a very different role.

Not all victims of stalking and harassment are domestic. The progress of legislation relating to victims of domestic abuse, welcome though it is, has left a legal hole for victims of serious crimes that are not considered domestic. Stalking is the key issue there.

While the definition of a “victim” in the Bill is helpful, there remain gaps for family members or third-party victims of crimes such as sexual abuse, sexual violence and other serious crimes, including domestic abuse, which is omitted. Only where a murder or death has happened are family members included. Family lives are often shattered by these crimes.

We also need an immigration firewall to ensure that the details of those who are victims and also migrants do not end up being used against them in any action in the migration system. The exploitation of children and vulnerable adults, whether in modern slavery or other forms, also needs to be dealt with in this Bill.

The approach to violence against and abuse of children specifically needs to be strengthened. We have long argued from these Benches for mandatory reporting of child sex abuse, as has happened successfully in Australia, Canada and many other countries. This was a recommendation of the Independent Inquiry into Child Sexual Abuse, but the Government have done nothing to implement it yet. The Children’s Commissioner makes a strong argument for separate identification of the needs of child victims, seeking an advocate for every child victim of the most serious crimes. This will give children agency when involved in the criminal justice system, and a victims’ code that is designed with and for children, because their needs are very different from those of adults.

Part 2, on supporting “victims of major incidents”, needs to include the Bishop of Liverpool’s recommendations on public authority accountability—the “Hillsborough law”. There also needs to be careful scrutiny of the role of the standing advocate for victims of major incidents. The charter proposed by the Government, and amendments in the Commons, are all helpful, but there needs to be further strengthening and, above all, a commitment to fund the office of the independent public advocate. We on these Benches remain concerned that the powers of the Secretary of State over the independent public advocate might jeopardise their independence.

It is good to see a new Part 3 providing some legal status for the victims of the infected blood scheme. However, the new Clause 40 is only the first step. There are concerns that the Government are already slowing down on the issue of interim payments. Like other noble Lords, I look forward with interest to the statement that is happening today.

I agree that most of the issues in the Bill are not partisan, and there is cross-party support for the truly transformative processing and treatment of victims, evident in the debates in the Commons and in your Lordships’ House. However, in Part 4, on prisoners and parole, we remain particularly concerned about the Henry VIII powers, the independence of the Parole Board and the Human Rights Act.

Lastly, there is real concern that the first three parts of the Bill all demand more of our public services, creating new and important roles, but do not provide support for them—unlike Part 4, which I understand is receiving around £500 million. The Autumn Statement Green Book notes on page 83 that there will be £10 million extra for domestic abuse for the financial year 2024-25 but the figure is zero in future years, and there is no mention of extra support for victims. Can the Minister explain why the victim elements of the Bill are funded only to a derisory level for one year and why victims once again appear abandoned after that?

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[Lord Bellamy (Con)]

I am not sure that I entirely understood the noble Baroness’s point, but it is perfectly true that I am thinking—rather, the Government are thinking; I should not put it in personal terms—about the potential victims of people who have been released and the actual families of those who have suffered at the hands of the offender. We are simply saying that there might be some very high-profile cases where it is sensible for there to be a second judicial look. That is a very much modified position from the position originally in the Bill, but it is, I hope, a sensible one.

I have used up my time, but I hope that I have covered most things. I apologise to noble Lords whose specific points I have not met. Anyone is fully entitled to write to me or ask me questions and I will, of course, answer them. If I may just finish with the words of the right reverend Prelate the Bishop of Manchester, who was kind enough to say he was going to be kind to the Bill. Let us be kind to the Bill and—

[Baroness Brinton (LD)]

It is very generous of the Minister to say, as he has done with other Bills, that we should write to him with concerns, but given that he said at the start of his response that he was going to take a high-level approach, it might be helpful if he were to write to all of us about the issues we have raised. There might then be a subsequent correspondence. However, if we are thinking about tabling amendments, rather than waiting for us to write and say, I think he has most of our questions.

[Lord Bellamy (Con)]

I warmly thank the noble Baroness for that intervention. I will ask my officials to go through this debate, identify at least the principal questions and see whether we can write to the House on the various points that have been made.

On that note, given the season of the year in which we find ourselves, we may not quite have reached

“Peace on earth, and mercy mild, God and sinners reconciled”,

but I hope we have taken the matter forward. I beg to move.

King’s Speech

Baroness Brinton Excerpts

Wednesday 8th November 2023 Lords Chamber

[Baroness Brinton (LD)]

My Lords, it is always a pleasure to follow the noble Baroness, Lady Henig. I congratulate our three maiden speakers today, and I look forward to hearing from them in the future. I also echo the tributes to Lord Judge; he will be sorely missed. I declare my interest as a vice-president of the Local Government Association.

A journalist noted yesterday that this was the longest monarch’s speech since 2005, but the lightest in content for possibly even longer. It feels partly like a refresher on things in the 2019 manifesto that have not been achieved, and partly an inkling, perhaps, of what will be in the Conservative Party manifesto at the next election.

I will briefly comment on the speech of the noble Lord, Lord Strathclyde. It is dangerous, almost a false equivalence, to look at pure statistics. We all know the adage about lies, damned lies and statistics. Our Cross-Benchers and Bishops add real value to our House, but, when we push them to vote later on in a Bill, they absolutely say to us, “No, it is getting too political, and we will stand back”. Very occasionally, they might vote at an early stage of ping-pong, but no further. That is because they, unlike many of us, understand that their role is not political. But they, like every Member of this House, recognise that our role is to scrutinise legislation, regardless of which party is in government, and to help improve it. I, for one, welcome their tabling and voting on amendments, whether they vote with my side or not.

The rail reform Bill says that it will “improve focus on customers through specific accessibility and freight duties”. This would not be the first time that people with disabilities have been lumped in with the baggage, but I am concerned that it is an afterthought in this Bill, not least because the 700,000 people who responded to the consultation on ticket closures have finally been listened to by government. I look forward to seeing the detail of the Bill. I hope we are not going back to the luggage vans.

There are a couple of missed opportunities that we need to comment on. It is a shame that the conversion practices Bill has not appeared. That was in the Conservative manifesto and is really important: conversion therapy is a form of torture with no place in our society. All the debates on television over the last few days assume that it is a complex issue. It is not, and that is why I hope it will appear in the future.

The other real shame is the mental health Bill. It is long overdue, because it was due to outlaw powers to detain those with autism and learning disabilities in secure units. The parliamentary Joint Committee report gave it cross-party support. This was a key manifesto pledge, and I do not understand why it has not happened. There is a further knock-on to the subjects we are discussing today. The pressure on mental health of having people locked up for 20 years for no reason at all means that valuable resources are diverted, which may be one of the reasons why we have some other pressures in our system.

Others have commented there has not been a royal commission on criminal justice. I regret that too, but I will spend the last couple of minutes talking briefly about the Victims and Prisoners Bill. It is good to see the noble Baroness, Lady Newlove, back in her place as the Victims’ Commissioner; I know that I will enjoy working with her again. She understands better than most people what it is to be a victim. The problem with the victims Bill, as my noble friend Lord Marks pointed out, is that we still do not have a statutory duty for the agencies that work with victims to provide those services. It is really important that this Bill is strengthened. It is vital that it is more than just what was in the original Domestic Violence, Crime and Victims Act 2004, which has completely failed to deliver for victims.

I will also briefly mention stalking. I was stalked for two and a half years by my Conservative political opponent, who was given a 12-month suspended prison sentence. That was one of the reasons why, when I came into your Lordships’ House, one of my first achievements as a member of the all-party group on stalking was stalking law reform. Non-domestic violence stalking is a scourge and every time I talk about it in your Lordships’ House, a Member comes and tells me about their own experience. I do not understand why it has not been included.

We will have other suggestions to strengthen the victims Bill, but there is one other missed opportunity in Part 2. It is notable that, despite the Government proposing an independent adviser for victims of major incidents and disasters, the victims themselves will not be covered by the code because a criminal act has to have caused such an incident. I am afraid that there are major incidents such as floods and other disasters in which people are killed as a result, and they are still victims and still need that support, so I will be pushing to make sure that they and others are recognised. Indeed, there are problems with the family courts as well.

I do not want to end without thanking the Government for at least bringing the Bill forward. But as I said at the outset, it would be really good for this House to give them some advice on improving it.

Mental Capacity Act 2005: Small Payments Scheme

Baroness Brinton Excerpts

Thursday 2nd March 2023 Lords Chamber

[Lord Bellamy (Con)]

My Lords, yes; I am able to fully agree with the noble Lord, Lord Ponsonby. We identified two problems. The first was the clunky—if I may use that expression—procedures of the Court of Protection, and the second was a general lack of awareness of the general law under the 2005 Act. On the first, the Court of Protection has in the meantime been digitalised. As from this month, anyone can apply online for the relevant authorisation, known as a “deputyship”. The relevant pilot reduced waiting times from 24 weeks to eight weeks, and the court forms are being worked on at the moment with a view to making them simpler and more user-friendly. So, there is good progress at the level of the Court of Protection. On the second problem, the general awareness of the need to observe the 2005 Act, we are in the process of a cross-government consultation to improve and raise public awareness.

[Baroness Brinton (LD)]

My Lords, some child trust providers such as OneFamily and Foresters Financial have developed a simplified process, working with families and using the DWP appointee scheme as a proxy to protect against fraud or abuse. In the recent MoJ consultation on this issue, 87% of respondents liked this way of working. Why have the Government rejected it?

[Lord Bellamy (Con)]

My Lords, essentially, there was general support for the idea of some sort of scheme, or at least some simplification of the process, but no consensus on what safeguards we should have. In particular, most banks and financial services companies expressed concerns about what they would have to do to carry out the relevant checks. There would be quite a small demand and it would be quite expensive for most institutions to provide the relevant service. In those circumstances, the Government decided that this was a case where we should avoid legislation and work to improve the present system.

Humanist Marriages

Baroness Brinton Excerpts

Tuesday 29th November 2022 Lords Chamber

[Lord Bellamy (Con)]

With respect, I very much hope that the Government understand what the problem is. As the Government see it, we should have a regime for marriage in this country in which the civil preliminaries are common to all marriages, the persons who conduct marriages are authorised under one regime, we define what belief systems we will accept as people capable of authorising marriages, and we exclude extremists, cults and so forth. These are not straightforward questions. It is a very simple and, if I may say so, not complete answer to say that it is easy to do it for the humanists. We want to make sure that, for example, a marriage of a Muslim at home—which might not be a lawful marriage at the moment—is now taken forward and that we create a situation in which that becomes a lawful marriage and we have proper officiants, rules and regulations that regulate it all. That is the Government’s position.

[Baroness Brinton (LD)]

My Lords, I supported the amendment from the noble Baroness, Lady Meacher, to the same-sex marriage Bill of 2013. The Minister probably feels rather beaten up by Members from all sides of your Lordships’ House, but we remember what Ministers said then. The provision that was arranged was deliberately simple to enable this to happen. I am sure the House would welcome other faiths being drawn into it, but this is long overdue. Please can he go away and look back at the history of the passage of that Act?

[Lord Bellamy (Con)]

I will of course go back and look at the history. I am equipped with elderly but serviceable shin-pads and am quite used to having my shins thoroughly kicked when necessary, but in this case the Government feel that the country as a whole must go forward together and not favour a particular group.

Police, Crime, Sentencing and Courts Bill

Baroness Brinton Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Wednesday 15th December 2021 Lords Chamber

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

My Lords, the noble Baroness, Lady Brinton, will be taking part remotely, so I hope she is there now. Baroness Brinton, are you with us?

[Baroness Brinton (LD) [V]]

My Lords, I welcome this further opportunity to speak to Amendments 78C and 78D in the name of the noble Lord, Lord Ponsonby, on the unduly lenient sentence scheme, to which I have added my name, and to Amendment 82B in my name on home detention curfews.

First, I thank the Minister for trying to set up a meeting. It was unfortunate that he had to cancel it and that, because of the emergency coronavirus legislation, I was not free to meet him either yesterday or today. Further, as an aside, it is good to see the Government finally publish their consultation on a victims law and I hope that, after the consultation, legislation will swiftly follow. We have been waiting a long time and today’s amendments are very definitely there to help victims.

Turning first to Amendments 78C and 78D, in Committee, speakers made clear how the ULS scheme plays an important role in our justice system, providing the right for individuals to apply to the Attorney-General’s Office where they believe a sentence to be unduly lenient. As the Minister clarified earlier, the unduly lenient sentence scheme does not provide a direct right to appeal, but instead provides an individual, including victims of crime and bereaved family members, with the opportunity to have their concerns considered by the courts.

On Amendment 78C, we hope that the Minister will acknowledge both the intent and practicalities of such a proposition. The Government’s own victims’ code of practice is clear that victims deserve the right to be told about this scheme and that the responsibility for informing victims of crime about it is assigned to the witness care units. The problem is that the witness care unit is the wrong authority to have this responsibility, because it interacts with only those who are witnesses in court, thus excluding many victims, including bereaved family members.

Amendment 78D seeks to allow flexibility in the 28-day time limit in exceptional circumstances, which would remain at the discretion of law officers when considering the application. If the Minister is concerned about the perceived risk this poses to the certainty for the offender, we believe that allowing a degree of flexibility in exceptional circumstances, as is given to the offender in this case, at the discretion of law officers, does not pose such a risk.

Part of the current problem, and its true risk to finality in sentencing, lies in the current backlogs facing our court system. One recent unduly lenient sentencing case has taken 10 months to reach the Court of Appeal. This does not resolve the fundamental problem that victims face, which is that the criminal justice system should ensure that victims are aware of their rights, have sufficient opportunity to exercise them and have the same rights of flexibility in truly exceptional circumstances. We believe that these amendments, rather than posing a risk to justice and its efficiency, seek to ensure that justice is truly served and that victims of crime have the right—as the Government have set out elsewhere—to a fundamental role in this process.

I turn now to Amendment 82B, which seeks to amend the policy framework governing the use of home detention curfews to exclude those who have previously breached protective orders and who have a history of stalking, harassment, domestic abuse and coercive control. During the debate in Committee, we discussed the fixated and obsessive nature of these offenders and the risk this poses to victims and the public. We gave worrying examples of cases where high-risk offenders were released on home detention curfew, only to appear outside their victim’s home or work, often despite court injunctions not to contact their victim.

After Committee, Victoria Atkins, Minister for Prisons and Probation, wrote to the Victims’ Commissioner for London, stating that the scheme provides a transition to the community for lower-risk offenders. If we are to believe that this Government take violence against women and girls seriously, can the Minister explain how they can consider those convicted of stalking and domestic abuse as lower-risk offenders? The Minister himself stated, in a recent event held by the Domestic Abuse Commissioner, that domestic abuse is at the top of the Government’s agenda and reforming and reframing their response is their top priority.

Support for this amendment would present a small step in the right direction to give victims of such violence the trust and confidence that the justice system is committed to tackling violence against women and girls. I will not press Amendment 82B to a vote, but would welcome a meeting to see if we can make some progress on reducing the contradiction highlighted by Victoria Atkins for something that would provide real support for victims.

[Viscount Hailsham (Con)]

My Lords, I appreciate that the noble Baroness who moved the lead amendment in this group is concerned primarily with Amendment 78B, but perhaps I might be forgiven if I focus exclusively on Amendment 78A. This relates to the new clause, which would apply a minimum mandatory sentence of seven years to the offence of rape.

I am against this proposed new clause and think it profoundly wrong. I am against it for essentially two reasons. First, as one who has practised in the criminal courts for many years, I know that the offence of rape carries within it a very broad spectrum of culpability, from the most serious kinds of offence to ones significantly less serious. That should be reflected in the ability of the judge to impose the appropriate sentences.

Already a life sentence is the maximum that can be imposed. This takes me to my second point—that I really think the amendment is unnecessary. Anybody who goes to have a careful look at the guidelines published by the Sentencing Council as to how courts should approach sentencing for rape will come to the conclusion that public protection is already appropriately safeguarded. In fact, the spectrum of custodial sentences set out in the Sentencing Council guidelines is between four and 19 years. There is a whole host of considerations set out to assist the judge in determining what level of sentence should be imposed.

That takes me to the last point that I want to make. If you go to the Sentencing Council’s guidelines, as I am sure many of your Lordships have done, you will see a whole range of mitigating circumstances—as well, of course, as aggravating circumstances. Those mitigating circumstances are circumstances that a trial judge could take into account when imposing a determinate sentence of less than seven years. In the new clause proposed in Amendment 78A, nothing is said, for example, about what the consequences would be of remorse or contrition, nor about the making of an early plea, although that of course now attracts a mandatory reduction as a general proposition. Nothing is said about what happens if the defendant has been assisting the prosecution, nor about the time spent on bail. All those things are built into the sentencing guidelines of the council, but they do not appear in the proposed new clause.

If the amendment was to be accepted by your Lordships’ House, very considerable injustice would be done. I also happen to think that it is wholly unnecessary.

Offenders: Pregnant Women

Baroness Brinton Excerpts

Wednesday 17th November 2021 Lords Chamber

[Baroness Brinton (LD) [V]]

My Lords, following on from the previous question, I have a further one on the training of staff in prisons. If there are six months to implement the ombudsman’s recommendations, will this include some training for all staff in women’s prisons on what to do if they suspect that early labour has started?

[Lord Wolfson of Tredegar (Con)]

My Lords, all new prison officers working within the women’s estate will complete a new module on pregnancy, which is starting in January. We are also developing a two-day course for all staff working directly with pregnant women and mothers separated from young children, and that is part of our implementation strategy for our new policy for pregnant women in prison.

Police, Crime, Sentencing and Courts Bill

Baroness Brinton Excerpts

Lords Hansard - Part 2 & Committee stage
Monday 15th November 2021 Lords Chamber

I submit that incarceration for violent and sexual offences is a situation where a GRC should not take precedence over unchanged biological sex. The MoJ may be acting lawfully but it is not acting decently nor doing its duty to protect biological-sex women. Indeed, the Ministry of Justice policy documents do not talk about women, but call them non-transgender women, automatically giving top billing to men identifying as women, with real women described as non-transgender. That is why I say that women are being erased from the lexicon. A male, no matter how he identifies, should never be housed in a women’s prison. Like many government departments and organisations, the Ministry of Justice has fallen for the minority, militant transexual agendists, giving far more rights to men who claim to be women than to women themselves. My amendment is a small first step to defend women. There will be many more amendments to come as people realise that the assault on women is now a clear and present danger. I commend my amendment to the Committee.

[Baroness Brinton (LD) [V]]

My Lords, the problem that Amendment 214 is trying to resolve is already addressed in the very strict codes of practice and guidance to the prison sector. Given that there is a full system of assessment of transgender prisoners, the prison environment in which they are currently placed and that in which they would like to be placed, it is worth running through the detail.

The noble Lord, Lord Blencathra, quoted from last year’s judicial review, but paragraph 75, where the explanation for the ruling starts, states:

“It is clear that the number of transgender women in women’s prisons is small, and the number who hold GRCs (and are therefore entitled to be treated as women in accordance with the Gender Recognition Act 2004) is very small.”


I say that in the light of the tone of the speech by the noble Lord, Lord Blencathra, which made it appear that there was a large invasion of trans women in women’s prisons.

The number of transgender prisoners is very small. However, the guidance on the management of prisoners is lengthy and clear, because transgender prisoners have human rights, as all prisoners do, and because they themselves are at serious risk in prison. The most recent statistics are from last year, and in its coverage of the data, the BBC noted:

“The total number of transgender victims far exceeds the number who were suspected of carrying out sex attacks, with only one such case in 2019.”


Between 2016 and 2019, of 97 sexual attacks in the women’s prison estate, seven trans women had been involved in sex assaults, either as the alleged perpetrator or assistant, with 90 of the sexual assaults being carried out by cis women. A further set of figures from the Ministry of Justice states that 11 trans women had been sexually assaulted in the men’s prison estate in 2019 alone. All this tells us that trans women are far more likely to be victims of assault in prisons than perpetrators and that many more women are assaulted by cis women in prison than by trans women.

However, even if the number of trans prisoners assaulting others is very low, it is right that there are safeguards in place, so what does the guidance say? It says that after a prisoner declares and can provide evidence that they are living in the gender that the offender identifies with, there will be an initial local transgender case board which will, as appropriate, make arrangements for transfers to other parts of the prison estate.

The Parole Board published Guidance on Prisoners who are Transgender in March of this year, which sets out the law very clearly for the prison and probation services regarding prisoners who are transgender. The operational guidance states that

“all transgender individuals, irrespective of whether they are located in the estate which matches the gender with which they identify, must be allowed to express the gender with which they identify. However, decisions to locate individuals who are transgender in prisons that do not match their legal gender can be made only on the recommendation of a Complex Case Board. This board will take into account risk factors to the individual and risk to others”.

To make it clear, for any trans prisoners who might also be deemed a risk to other prisoners, a complex case board has to be called for transgender offenders, which will look at the complexity and specifically assess the risk of harm, prior to making decisions about prison location. The views of the offender must be presented to the board, but a number of healthcare and psychology leads would be there to ensure that any move to a women’s prison would be safe.

Options that a complex case board can consider include moving a prisoner to a women’s prison but keeping them in segregation or, if even that is felt to be too risky, moving them into a segregated part of a men’s prison that is staffed as if it were a women’s unit. There are also now a small number of transgender prison units. It seems that this document sets out well all the steps that need to be taken to protect the trans prisoner—who, as I have already said, is at much higher risk of assault than non-trans prisoners—while also protecting the other prisoners from someone who might be deemed a risk.

There was the case of Karen White, who sexually assaulted two women while on remand at New Hall prison in Wakefield in 2017. It is worth remembering that the Prison Service had to apologise in that case because it had not followed the procedures outlined above, failing all prisoners at New Hall. White should never have been put in a women’s prison and, had there been a complex case board, it would have assessed her as being a risk and not put her in a women’s prison.

The current Ministry of Justice and HMPPS 39-page policy on “The Care and Management of Individuals who are Transgender” says at paragraph 1.6:

“The proper assessment of risk is paramount in the management of all individuals in our care. The management of individuals who are transgender, particularly in custodial and residential settings, must seek to protect both the welfare and rights of the individual and the welfare and rights of others around them, including staff. Decisions must be informed by all available evidence and intelligence in order to achieve an outcome that balances risks and promotes the safety of all in our care and management.”


The process is there to protect all prisoners and to respect the rights and safety of all prisoners. This amendment is redundant. The actual facts of what is happening with trans women in prisons does not match the opening speech by the noble Lord, Lord Blencathra.

--- Later in debate ---

Moved by

[Baroness Brinton]

214A: After Clause 124, insert the following new Clause—
“Home detention curfews
(1) The Home Detention Curfew policy framework is amended as follows.(2) In paragraph 4.3.1 at the appropriate place insert—“Offenders who have previously breached a protective order”.(3) In paragraph 4.3.5 at the appropriate place insert—“Anyone with a history of offences relating to stalking, harassment, coercive control or domestic abuse”.”Member’s explanatory statement
This amendment would exclude offenders who have previously breached a protective order and those with a history of offences relating to stalking, harassment, coercive control or domestic abuse, from the Home Detention Curfew policy framework.

[Baroness Brinton (LD) [V]]

My Lords, I have laid Amendment 214A and I thank the noble Lord, Lord Ponsonby of Shulbrede, and the noble Baroness, Lady Newlove, for also signing it.

The home detention curfew is a valuable and worthwhile scheme, allowing offenders to be released from prison to a suitable address and allowing for a smoother transition back into society. There are, however, a number of violent and sexual offences which rightly cannot be considered under this scheme, due to the risk the offender poses to the victim. This amendment seeks to expand the list of ineligible offences to include those which relate to ongoing harm or risk to a particular individual and which are not already excluded from the scheme. These offences include stalking, harassment, coercive control and domestic abuse.

The Minister knows from the many amendments that were tabled during the passage of the Domestic Abuse Bill and other Bills before it that in cases where perpetrators are fixated and obsessed, by the time they are convicted, many will have either a restraining order or another protective order in place. This amendment says that the home detention curfew should also not be considered in cases where such a restraining order or other protective order has already been breached.

The Government have described a key objective of this Bill as follows:

“We are changing release arrangements for serious violent and sex offenders, as well as for those whose risk to the public increases during their time in custody, so that they serve longer in prison.


These changes have the protection of the public at their core and ensure a firm but fair justice system.”


The victims of stalking, harassment, coercive control and domestic abuse, where the perpetrator has had a protective order made against them, often report that their perpetrator continues to try to control them, whether directly or indirectly, including from prison, sometimes without prison officials being aware.

One example is not untypical of the kind of perpetrator we believe should not be eligible for HDCs. The woman, who wishes to be anonymous, has been a victim of domestic abuse by her ex-husband and has been granted multiple restraining orders for her own protection since divorcing him. He was convicted in 2017 for breaching an order and in 2019 for two breaches of another order, and then faced trial for eight breaches of a third order as well as numerous counts of stalking against her, her partner and her family. This shows a clear history of breaching protective orders—over 10 times—and the victim is currently on her fourth restraining order.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful to the noble Baroness, Lady Brinton, twice over. First, I thank her for tabling this amendment, which has enabled us to have this short but interesting debate. Secondly, I have to say mea culpa, because I failed to thank her for her contribution in the last group. I should have done so and I apologise for that. I hope that she will be able to hear what I am saying now, via the screen.

The home detention curfew—HDC—scheme has operated since 1999. It provides a managed transition from custody to the community for lower-risk offenders who serve sentences of less than four years. They may be released a maximum of four and a half months earlier than the date on which they must be released in any event, but on average they are released on HDC within three months of their automatic release date.

Offenders who are released under the HDC scheme are released under strict licence conditions. An electronically monitored curfew of at least nine hours a day is mandatory. Location monitoring may be added in cases where practitioners advise that it is required. Importantly, research suggests that offenders released early on HDC are no more likely to commit further offences than if they were released at their automatic release date. Compliance with the curfew conditions is closely monitored and breaches are dealt with robustly, which can lead to a swift recall to prison where necessary.

As my noble friend Lady Newlove pointed out, certain offenders are excluded in law from HDC. They include registered sex offenders, terrorists and those imprisoned for specified violent offences. But, as I have said, most offenders serving sentences of less than four years are eligible for the scheme. I underline the word “eligible”. The fact that a particular offender is, in principle, eligible, does not mean that that offender is suitable for release under the scheme. As the noble Lord, Lord Ponsonby of Shulbrede, has just said, offenders can, for example, exhibit obsessional behaviour. No offender can be approved for release on HDC without a robust risk-management plan in place. Where necessary, the governor can set additional licence conditions that can include exclusion zones or location monitoring. If the result of the assessment is that the offender cannot be safely managed at the proposed curfew address, HDC will simply not be granted.

We recognise that the release of offenders with a history of stalking, harassment, coercive control or domestic abuse can cause additional distress. We do not believe that adding those offences to the list of offences excluded by law and putting a blanket ban in place would be proportionate, or an effective means of safeguarding victims while maximising the benefits of the scheme. But we are currently reviewing the HDC policy framework to ensure that all the appropriate safeguards are in place to protect victims and the public and that unsuitable offenders are not released on HDC. With these reassurances and for these reasons, I urge the noble Baroness to withdraw this amendment.

[Baroness Brinton (LD) [V]]

I thank noble Lords for their contributions to this brief debate. The noble Baroness, Lady Newlove, spoke powerfully of the practical impact on victims of these fixated offenders after HDC has happened. I echo her thanks to Claire Waxman and her staff at the London Victims’ Commissioner’s office for their briefing and their assistance.

The noble Lord, Lord Ponsonby, helpfully reiterated the fixated behaviour of these offenders and how it is in their nature to breach orders. All the examples that the three of us have given show that they are likely to do so—and to do so repeatedly.

Police, Crime, Sentencing and Courts Bill

Baroness Brinton Excerpts

Lords Hansard - part two & Committee stage
Wednesday 10th November 2021 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

This is about a completely new topic that we have not addressed before, which is the unduly lenient sentence scheme. The scheme allows the Attorney-General to refer to the Court of Appeal a sentence which he or she regards as being unduly lenient. Only the Attorney-General can do it, there is a 28-day period for referral from the date at which the judge has passed the sentence which is impugned by the unduly lenient sentence application, and it applies only to particular identified serious crimes. From time to time, there is a review of which crimes to which it refers, and the crimes have been changed from time to time—always increased, not reduced. It does not apply to the crimes to which it applies if they are tried in the youth court.

One of the great campaigners for change in relation to this is Tracey Hanson, whose son Josh was brutally stabbed to death in October 2015. The person who committed the murder absconded in a private plane, and many years went by before he was finally arrested and charged, convicted of murder and given a life sentence with a minimum sentence of 26 years. Josh’s mother took the view, completely understandably, that this was an unduly lenient sentence. She knew nothing about the unduly lenient sentence scheme until she was told about it on the 28th day. She got in touch with the Attorney-General’s chambers, who said that it was out of office hours and too late to make an application. It would have had to be the Attorney-General who made it, not Tracy Hanson, so the opportunity was completely lost.

Amendment 196A proposes that the Secretary of State for Justice would nominate a government department —almost certainly the CPS—to inform victims and their families of the type of sentence that has been passed, the time limit for an application to be made by the Attorney-General, and that an application by a victim or their family for an increase in the sentence should be made to the Attorney-General, so you do not end up in a circumstance where the victim finds out only at the very last moment that this right exists.

Amendment 196B would allow in very exceptional circumstances the time limit of 28 days which applies to the ULS scheme to be extended. It should be extended only in exceptional circumstances. Those circumstances should include but not be limited to where the relevant body which is obliged to notify the victim or the victim’s family of the existence of the scheme fails to do so. If there was this limited discretion to extend the 28-day period, that would avoid the feeling of injustice that Josh’s mother and the rest of her family experienced.

My Amendment 196C says that, within 12 months from the date upon which the Bill becomes law, the Secretary of State shall undertake a review of the offences to be included within the scope of the ULS scheme to allow consideration of whether other offences should be added. Amendment 196D seeks to render cases tried in the youth court, where they are for one of the index offences, also subject to the ULS scheme. I beg to move.

[Baroness Brinton (LD) [V]]

My Lords, I am pleased to support the noble and learned Lord, Lord Falconer, on Amendments 196A to 196D, and I thank him for so ably and eloquently presenting the importance of these changes. I am sorry that the noble Baroness, Lady Newlove, has been unexpectedly called away, but, as your Lordships’ House knows, she was the Victims’ Commissioner, and, through her work with victims, she has asked me to say that she is extremely supportive of this group.

I think that most people are aware of the fundamental right in our justice system to appeal a sentence handed down by a judge. Following a sentence hearing, a convicted offender will meet with their lawyer to discuss what comes next and what their rights are with regard to an appeal. This is a fundamental and correct part of our process, and we should hold it in high regard. But what many are not aware of—and this leads me to the necessity of these amendments—is the unduly lenient sentence scheme, which provides the right for anyone to appeal a sentence. This right is of particular importance to the victims of crime and bereaved family members, and the scheme is recognised as a key entitlement in the victims’ code of practice. Operated by the Attorney General’s Office, it provides this fundamental right, which is an important process for victims and bereaved families and can bring comfort and increased confidence in the justice system.

However, as we heard from the noble and learned Lord, Lord Falconer, these rights are not equal in policy or practice, and many victims find themselves learning of their rights by chance, too late or not at all, all of which can have a devastating impact on a victim’s recovery. The scheme, like an offender’s right of appeal, has a time limit of 28 days. This limit provides some assurance for those involved, which we think is important. However, this is where the parity between victim and offender ends, and the amendments tabled by the noble and learned Lord, Lord Falconer, would rectify the problem. While offenders are told of their right to appeal almost immediately following the sentencing, we know that many victims are never informed of their rights at all.

I will briefly tell you about someone who has been denied her rights under this scheme. Claire, a loving mother to a young daughter, was stabbed repeatedly and had her throat slashed by her ex-partner. Thankfully, Claire survived this most horrific of attacks, which was carried out in the presence of her daughter. The offender in the case was arrested and charged, and plead guilty to attempted murder earlier this year. He was handed a life sentence but with a minimum term of just eight years. No justice agency told her of the unduly lenient sentence scheme, and it was only while speaking to Tracey Hanson, whom the noble and learned Lord, Lord Falconer, referred to, that she became aware of it. She spoke to the police about it, and they incorrectly told her that she could not appeal due to the offender having received a life sentence.

The problem is the lack of clarity about this scheme, and the lack of responsibility for telling a victim meant that Claire was unable to request that the sentence be appealed within the 28 days. And so the man who slashed her throat her in front of her young daughter may be released in as little as eight years. We must stop failing victims who bravely come forward to bring offenders to justice and whom we repay with this appalling treatment and injustice.

The revised victims’ code of practice, which came into force in April and codifies the rights and entitlements of victims of crime, assigns this responsibility for informing victims to witness care units. While this is useful and important, it fails to realise that many victims and bereaved family members will have no contact at all with witness care units, leaving many still unaware of their rights. So we must ensure that victims and bereaved families are informed in good time after sentencing, because it is absolutely vital that they are able to use their right to appeal if they so want.

These amendments also seek that the Secretary of State conduct a review of eligibility under the scheme, opening up the possibility of including further serious offences, with the aim of delivering this vital right to more people. Gareth Johnson, MP for Dartford, speaking in the other place, talked passionately of the experience of his constituents: the family of Gemma Robinson, who was brutally beaten by her partner, who was the subject of a restraining order following a previous assault against her. Following this, her partner was arrested and charged with Section 18—grievous bodily harm—an offence recognised under this scheme. Tragically, Ms Robinson took her own life prior to his appearance in court and the charge was reduced to Section 20, malicious wounding. This offence, as it stands, is ineligible for the unduly lenient sentence scheme, so Ms Robinson’s family could do nothing as a sentence of just 3.5 years was handed down.

I thank the London victims’ commissioner, Claire Waxman, and her office for their tireless work in pushing for reform to the unduly lenient sentence scheme. I thank the noble and learned Lord, Lord Falconer, for tabling these amendments and making the possibility of reform a reality. I urge the Minister to support this amendment, not just for those whom the system has failed but for those whom it can stand to benefit in future—those victims and families who feel that in their case justice was not done.

[Lord Wolfson of Tredegar (Con)]

My Lords, the amendments all refer to the unduly lenient sentence scheme, which is set out in Sections 35 and 36 of the Criminal Justice Act 1988. It allows anyone to ask for certain sentences imposed by the Crown Court to be considered by the law officers where the sentence is felt to be unduly lenient. The law officers—it is ultimately their decision, for reasons I will come back to—may then decide to refer the case to the Court of Appeal. Once it gets there, it is a matter for the Court of Appeal to decide whether the sentence should be increased.

I should underline that it is not a right available to anyone to ask the court to reconsider the sentence. The way the system works is that the request is made to the law officers; their role is to ask the court to increase the sentence. That was set out deliberately and rightly in the scheme. We prosecute in this country in the name of the Crown; we do not have, with very few exceptions, private criminal prosecutions. The instances of the scheme going wrong or people not knowing about it, as we have just heard in the cases of Tracey Hanson and the appalling murder of her son Josh, and the terrible attack on Claire in front of her young daughter, are terrible to hear about. One can only imagine the consequences for those families.

I therefore understand the motivation behind Amendment 196A. It is critical that victims, prosecuting authorities and members of the public are aware of the ULS scheme. I heard the noble Baroness, Lady Brinton, talk about a lack of clarity. She quite rightly referred to the revised Code of Practice for Victims of Crime, or the victims’ code—I am grateful to her for doing so—which came into force on 1 April this year. It provides victims with the right to be informed about the existence of the scheme and includes, as we heard, a requirement for the witness care unit to inform victims about the scheme promptly when sentencing takes place. In addition, the Crown Prosecution Service references the scheme in its leaflet entitled Information for Victims. There is provision in place to ensure that victims and their families are informed of the scheme.

It is not the case that it is left to victims or bereaved families to contact the law officers. The Crown Prosecution Service can and does make requests directly to the Attorney-General for cases to be referred to the Court of Appeal in instances where the prosecuting authority considers the sentence to be unduly lenient. Those requests are considered by my right honourable and learned friend the Attorney-General in the way that she considers all such requests. While I understand the motivation behind Amendment 196A, I suggest that it is not required.

Police, Crime, Sentencing and Courts Bill

Baroness Brinton Excerpts

Lords Hansard - part one & Committee stage
Monday 8th November 2021 Lords Chamber

[Lord Garnier (Con)]

Many things could be added to the Bill and many could be taken away but the general thrust of the law, as my noble friend well understands, being a barrister of considerable experience, is that where a burden is placed upon a defendant in a criminal matter, it is set to the civil standard of proof.

[Baroness Brinton (LD) [V]]

My Lords, I am grateful to the noble and learned Lord, Lord Garnier, for explaining his amendment in such helpful detail. However, my focus is on suggesting that Clause 63 should not stand part of the Bill. The principal reason—much of which we debated the other day, so I will not go into it in great detail—is the effect on the Gypsy, Roma and Traveller community. It is particularly about the use of the vague and expansive provisions of significant “disruption” and “distress”. “Damage” may be easier to define, but there are perhaps some issues about that as well.

Clearly, a range of provisions is already on the statute book which criminalise committing criminal damage. Section 1 of the Criminal Damage Act 1971 allows courts to grant injunctions against people engaging in antisocial behaviour—I could go on. The real concern is that this is clearly targeted at the Gypsy and Traveller community. To repeat a point that I made the other day, the definition of “significant” is not clear in the Bill. The Supreme Court recently characterised “significant” as follows:

“like the skin of a chameleon, the adjective takes a different colour so as to suit a different context.”

However, “disruption” itself has also been controversial in the context of public order legislation and is hugely open to interpretation. Part 4 directs authorities to focus exclusively on disruption caused by roadside camps, rather than inviting this to be balanced against the relative disruption caused by evicting Gypsy and Traveller families, to ensure that the response is proportionate.

“Distress” is also a broad and highly subjective category. The National Police Chiefs’ Council asked, in its evidence to the Joint Committee on Human Rights,

“whose distress? Is it the landowner’s? Is it a perception?”

This nebulous term may, in this context, also be informed by stereotypes and prejudices against Gypsy, Roma and Traveller communities. We heard noble Lords last week making assumptions about the distress that the presence of camps alone may cause—of having an encampment nearby—and that this was also the source of crimes. Most noble Lords who said this also said that they could not prove it, but certainly among the community there is considerable distress already.

As I said, there are existing powers to address this. Section 61 of the Criminal Justice and Public Order Act 1994 gives the police the power to remove people from land where the landowner or occupier takes reasonable steps, and Section 62A allows the police to direct trespassers to remove themselves and their vehicles and property from land where a suitable pitch or relevant caravan site is available within the same local area. This is particularly important in terms of the data that we heard about the other day—that there are fewer authorised encampments available. There are more unofficial ones, but it is a real problem for people travelling from one area to another and intending to carry out their lawful business if they cannot find somewhere to go. The difficulty with Clause 63 is that it heaps further problems upon them but uses terms which are not well defined and are utterly nebulous, and which put this community at further risk of having their way of life criminalised.