Police, Crime, Sentencing and Courts Bill

Baroness Chakrabarti Excerpts

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

[Baroness Chakrabarti (Lab)]

Does the Minister not agree that good law is about a combination of rules and discretion? I quite understand that he is here to advocate his new scheme and approach, which the Government have considered and think is the way forward, but why not have a little residual discretion for some of the examples that the noble Lord, Lord Paddick, gave? The Minister said that a simple caution is really a bare warning but, occasionally, is not a bare warning better than nothing at all in terms of a police officer, in reality—sometimes underresourced, in difficult times—doing his job in the community?

Why do we have to be so rigid that we make a simple caution—which of course is not ideal and does not have the diversions and other things suggested— impossible to give? In circumstance where there is a student who is annoyingly drunk but has not really harmed anybody—as in the example given—why not allow a bare warning rather than no warning and no action at all?

[Lord Wolfson of Tredegar (Con)]

Without turning this afternoon into a jurisprudential seminar, I certainly agree with the thrust of the point made by the noble Baroness that good law is often a combination of rules and discretion. At the level of generality, I would agree. However, it is not right to say that this is rigid; the conditions that can be applied are extremely flexible.

There are really two parts to the answer. First, within the new cautions regime, there is a great deal of flexibility as to the conditions that can be set out. If the noble Baroness looks at Clause 80 for diversionary cautions—which is mirrored in Clause 89 for community cautions—subsection (4) sets out the restrictive conditions and goes down to the one I mentioned in my response to the noble Lord, Lord Paddick, which is

“not to engage in specified conduct”.

That is, essentially, the lowest form of engagement when no other suitable conditions exist. That really creates a condition where the offender is expected not to commit any further offences. That is a very low level of engagement, and when that is suitable will be a matter for the code of practice.

The second part of the answer is to repeat the point I made earlier that other forms of out of court disposal are still available—I mentioned fixed penalty notices and community resolution—so, with respect, I do not agree that we are putting in place a rigid regime. The conditions are flexible and there are some disposals that are outside the cautions structure, even now.

I do not think I did so before, but I invite the noble Lord to withdraw his amendment.

[Lord Wolfson of Tredegar (Con)]

As I said a moment ago, this relates to Clause 80(4) and Clause 89(4), if the noble Lord looks at the last condition in each of those subsections. The code of practice, as I said in response to the noble Baroness, Lady Chakrabarti, will make further provision for the circumstances in which that would be appropriate. Importantly, and I think differently from the simple caution, the police would still need to monitor conduct to ensure that someone had not reoffended, but that would be less onerous. This is a good example of where the new structure that we are putting in place preserves the best of the old regime but still has it on a more structured basis, focused on preventing reoffending as well as on the rehabilitation of the offender.

[Baroness Chakrabarti (Lab)]

Forgive me, but I sense an element of unworldliness about this. If it is appropriate in a given case for there to be just words spoken and a warning, and it would be proportionate, do we really need the constable in question to go through the process of the recording and the monitoring?

I say no more on that but, if the Committee will indulge me, I would like to mention that Mr Gareth Dowling, the doorkeeper, is retiring today after some years of service and I hope that the Committee, if not the whole House, will join me in congratulating him and wishing him all the best for the future.

[Noble Lords]

Hear, hear.

--- Later in debate ---

[Baroness Butler-Sloss (CB)]

My Lords, I am very interested in what the noble Lord, Lord Carlile, has just said. Although, again, I am not strictly following the amendment of the noble Lord, Lord Paddick, I very strongly support it and ask the Government to think again.

I happen to have had some limited personal experience of young people who had offended between the ages of 12 and 18 and who were acting for youth groups, mentoring other young people to prevent them from offending, because they had learned. I have met half a dozen of them. All were black and doing valuable work in their 20s, but were having the most appalling difficulty in finding a decent job that would be commensurate with their undoubted abilities. I will tell you the sort of case that happens. A child of 14 won a prize at school and took it home to show his family. His elder brother threw it away and said, “Don’t be so stupid. Why don’t you behave like us? That’s an utter waste of time.” He then went on to offend, and, aged 19 or 20, he told me that he had learned that this did not pay and that he had to lead a proper life. He was doing the most wonderful job, teaching other young black people, under the age of 18, how not to offend. It is crucial that what the noble Lord, Lord Carlile, has just said is picked up by the Government and taken forward.

[Baroness Chakrabarti (Lab)]

My Lords, I have to agree with the three Members of the Committee who have just spoken. I will deal with the two proposals in turn, first that relating to children and their convictions being spent when they turn 18. That is absolutely compelling as an argument. I have just one thing to add: there is a huge differential in the experiences of different children in our communities. For example, there are looked-after children—the state not being the best parent—who will be prosecuted and will attract convictions, before their majority, for bad behaviour that simply does not get prosecuted when a child behaves in that way in the family home. This could be common assault or criminal damage. It is common practice for looked-after children to be in the criminal justice system in circumstances where their peers elsewhere would not. To not to get a second chance on turning 18 is a terrible indictment on our society.

I encourage the Minister to take the expert advice from the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Carlile, with all his experience of penal reform, and to do something about this. Things are compounded still by there being no right to be forgotten when it comes to the internet. The law has to push back even harder to try to rehabilitate people, particularly children, in the light of so much of our lives and our histories being on the internet.

I shall respond briefly to the noble Lord, Lord Paddick. A non-court disposal administered initially by a police officer should be immediately spent, as a matter of good practice but also as a matter of principle. If someone has given up the opportunity to have the matter dealt with in court, that should happen in many cases. However, there should be a benefit, and that should be that the disposal is immediately spent. It is an incentive to engage with it, but it is also right in principle. The Rehabilitation of Offenders Act 1974 was a wonderful thing, but we are a long way from its ethos and principles. It has been undermined by an exemption order that has grown, in my experience, every year and it has been undermined by the growth and rise of the internet. This Committee really needs to listen to the noble Lords, Lord Carlile and Lord Paddick, in their proposals, and push back very hard in the opposite direction.

[Viscount Hailsham (Con)]

My Lords, I will make a very brief point in support of what has just been said by the noble Baroness and the noble and learned Baroness. There are a number of professions where you have to establish that you are a fit and proper person. I act as a legal assessor to the Nursing and Midwifery Council, and I am aware of the registration process: you have to assert that you are a fit and proper person. I can see that a caution of the kind that we have been discussing might stand in the way of a registration being effective, and that would be a great tragedy.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

The purpose of a minimum sentence is that unless the threshold is met—we will debate in another group what that threshold should be—the minimum sentence is imposed. There is nothing between us on how it works; there obviously is on whether it is a good idea. I hope that is fair.

[Baroness Chakrabarti (Lab)]

I am sorry to interrupt the Minister but in sentencing law and in the criminal justice system, minimum sentences are currently referred to as “mandatory minimum sentences”, subject to thresholds and exceptions such as exceptional circumstances. That is a very long tradition. As lawyers we must be fair to lay Members of the Committee as well. It is unfair to say that the noble Baroness, Lady Jones, has missed the point. It is very common in the parlance of sentencing law and criminal justice law to refer to minimum sentences as “mandatory minimum sentences”, subject to whatever thresholds and exceptions there are.

[The Lord Bishop of Durham]

That is exactly what it says in the paperwork we have.

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

It is not a mandatory sentence, because you can impose more. Let us be clear: it is a minimum sentence, which has to be imposed unless the exceptions are met. To take it outside this clause, if you have a minimum sentence of two years unless there is an exception, the first question is: is the exception met? If it is not, you have to give at least two years. You do not have to give two years; you could give two and a half years. I am not sure I am saying anything different. Reference has been made to America. In other jurisdictions, when they say mandatory, it can be mandatory without exceptional circumstances or any other provision. I am not sure we are saying anything different. I think we are all clear about what we mean. I would prefer to use the phrase “a minimum sentence”, which is the phrase used in the Bill, unless the exception applies.

[Baroness Chakrabarti (Lab)]

I am so sorry to elongate this, but it is important. The Minister, sitting in a Government with a massive majority, gets to rewrite the statute book, but he does not get to change terms that are well understood by lawyers and sentencers in this jurisdiction and others. He is proposing a mandatory minimum sentence subject to certain exceptions. The common parlance—perhaps not on the street, but in the profession and on the Bench—is that this is a mandatory minimum sentence. He can argue for it and say that it is good policy, but it is not helpful to the Committee, anyone outside it or anyone reading Hansard for us to suggest that this is something totally different from a mandatory minimum sentence subject to exceptional circumstances.

[Lord Wolfson of Tredegar (Con)]

I am really not sure that we are saying anything different. As I said, we will come in a later group to how many offenders do not get the minimum sentence with some sentences. There must come a point at which so many offenders do not get it that using the word “mandatory” to describe it is itself misleading. I suggest we are better off sticking to the terms used in the Bill, which are both accurate and appropriate.

I underline the point that the change we are proposing does not mean that all 16 and 17 year-olds will receive the minimum sentence. The courts will retain the discretion not to apply the minimum where there are exceptional circumstances which relate to either the offender or the offence and which would justify doing so.