Lord Hanson of Flint
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Crime and Policing Bill
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Lord Davies of Gower (Con)
My Lords, I strongly support the intention behind the amendments tabled by my noble friend Lord Blencathra. He is absolutely right to refer to it as theft. It is theft, under Section 1 of the Theft Act 1968. He is right that there is no such offence as shoplifting.
We have all heard the same stories from businesses, large and small: prolific offenders walking out with hundreds of pounds of stock in broad daylight; staff frightened or, in many cases, not allowed to intervene; police too stretched to attend; and, time and again, the same individuals returning to commit offence after offence because they believe, with some justification, that nothing will happen to them.
My noble friend’s first amendment in this group deals with the ability to share clear evidence of theft with those who need to see it. At present, retailers might be reluctant or legally uncertain about whether they can circulate images of offenders, even to neighbouring stores, to their own head office or to crime reduction bodies. Yet, these are precisely the channels that allow patterns of offending to be identified and prolific offenders to be caught.
The amendments set out a lawful, proportionate system. Images can be shared where a theft has occurred, provided the originals are preserved, time-stamped, unedited and sent to the police. This ensures the integrity of evidence and prevents misuse. Importantly, it provides a remedy and compensation if a photograph of the wrong individual is mistakenly published. My only concern here is that being required to pay £300 per day in compensation might deter the shop owner from circulating the evidence.
I am particularly supportive of Amendment 216B. We know that a number of retailers have told their staff to not intervene when they see a person shoplifting. This has led to numerous instances of brazen theft, whereby people walk into a shop, grab armfuls of products and walk out in full sight of security guards and staff. Such scenes make a mockery of law and order. The amendment permits the lawful detention of suspected thieves by trained security staff. Shopkeepers should not have to look on helplessly while brazen thieves simply walk out of the store. What my noble friend proposes is eminently sensible: properly trained staff equipped with body-worn cameras, using only minimum force, operating under strict rules and with constant video recording. This is not a free-for-all; it is the opposite. It is a controlled, transparent, safeguarded process that both protects the rights of suspects and gives retailers the ability to intervene proportionately when theft is happening before their eyes.
The amendment also places obligations on the police when they are called. They must attend promptly, take custody of the suspect, secure the evidence and make decisions based on a full review, not a hurried assessment at the store door. This is entirely right. Retail staff are repeatedly told to detain no one because the police will not come. The amendment would send the opposite message. When retailers correctly do their part, the police must do theirs.
Finally, Amendment 216C addresses a growing and deeply troubling phenomenon, whereby organised gangs loot shops, raid entire streets or retail parks and steal thousands of pounds-worth of goods. These are not opportunists; they are organised criminals. Yet, the system too often charges them with individual, low-value thefts rather than with conspiracy or organised crime offences. The amendment establishes that, where there is reliable evidence of at least 10 thefts involving two or more individuals, a full investigation with conspiracy charges must be instigated where appropriate. The sentencing framework my noble friend proposes is proportionate and targeted: higher penalties for organised groups of five or more and the automatic confiscation of vehicles or property used in the crime. These are necessary deterrents: the current penalties are not.
Taken together, these amendments represent a robust but balanced response to an urgent and worsening problem. They support shopkeepers, empower security staff and assist the police with the collection of evidence.
The Minister of State, Home Office (Lord Hanson of Flint) (Lab)
My Lords, I begin by, in part, sharing the aspirations of the noble Lord, Lord Blencathra. I agree with him. It is not shoplifting; it is shop theft. I agree with the noble Lord, Lord Davies, on that same point. When I began my working career 45 years ago after university with the Co-op on a management training course, we called it “leakage”. I found that term offensive then, and I find it offensive now. It is shop theft. So I agree with him that there needs to be an effort made by the Government to tackle this issue.
In response to the noble Baroness, Lady Doocey, the Home Office is working with police representatives through the National Police Chiefs’ Council to make it easier for retailers to report crime. The current Policing Minister and the previous Policing Minister are now both supporting a Tackling Retail Crime Together strategy launched by the chief constables and industry. We had a summer of action on shop theft, which involved visible policing on the streets and targeting hotspot areas.
This winter, the Home Secretary plans for police forces across England and Wales to partner with local businesses, local councils and police and crime commissioners to target shop theft and anti-social behaviour during the peak retail season. There are plans to put 13,000 extra boots on the ground, from neighbourhood policing through to special constables and PCSOs. The measures in Clause 39, which we debated earlier, try to raise the level of importance of shop theft. As a Government, we recognise that we want to take action on that.
Where I disagree with the noble Lord is on some of these proposals. However, like the noble Lord, Lord Randall, who, again, has great experience of the retail world, I take the issue of shop theft extremely seriously. Probably like him, I am one of the few people in the Chamber tonight who have apprehended a shoplifter and reported them to the police, along with the manager of the shop, and I have been present at the shop theft interview as part of my duties. It was shop theft then and it is shop theft now, and it should not be tolerated, whatever the level of that shop theft.
On the measures the noble Lord, Lord Blencathra, brings forward, such as Amendment 216A, which seeks to enable deterrent actions by shopkeepers through the use of video or photographic evidence, it is important that we have evidence such as that supplied by CCTV. Widespread introduction and publication, which is one of the objectives of the noble Lord’s amendment, would meet the objectives of the noble Baroness, Lady Doocey. However, it would potentially impinge on the rights of individuals, who may or may not be guilty, and could well incite vigilante action and undermine the fundamental presumption of “innocent until proven guilty”. I have no objection to CCTV, but the noble Lord needs to be careful with that, which is the reason why I cannot support the amendment.
Before I move on to the noble Lord’s other amendments, let me say that I appreciated his support for Operation Opal. Retailers are able to refer cases of organised retail crime to Operation Opal, and the national police acquisitive crime intelligence unit then investigates. It is unnecessary to specify that in the legislation because it is an operational issue, but again, it shows the importance we place on the issue of shop theft.
Lord Blencathra (Con)
I did not think my amendment was creating considerable extra powers of arrest for the security guards, but it seems that the current power largely mirrors a lot of things that I put in this amendment. My question then is, why are so many shops scared to use it? I appreciate that the retail unit or outlet has to determine whether they let the security guards arrest people, but there is certainly a fear among many security guards in this respect, and many shops say, “We can’t let you arrest people”. We must, somehow or other empower, them to do so.
Lord Hanson of Flint (Lab)
There is a genuine fear about what the response would be, and I understand that. The days when I—and potentially the noble Lord, Lord Randall—stopped a shop theft in a retail premises were a long time ago. The climate was different, and now there is the carrying of knives and the threat of violence. That might be a fear, and it is up to individual shops to determine their own policy. Clause 37, which deals with attacks on retail workers and will apply to a whole range of retail staff, adds an extra protection. It will be up to individual shops, but it is important that those two measures are seen as coterminous. Protection of retail staff in the event of shop theft and assault is a further measure to support action on shop theft. However, it is ultimately for individual stores to determine their policy.
The noble Lord also raised the issue of multiple thefts and planning for thefts. I find it objectionable to see criminal gangs organising mass hits on shops, but that is already a factor that aggravates the seriousness of the theft offence. If, therefore, there is evidence that multiple parties were involved in a theft, each of those parties could and should be charged with theft, as well as conspiracy to commit theft. The amendment would require the police to consider charging with conspiracy to commit theft if there is evidence that two more people are involved. I know that the noble Lord knows I am going to say this, but it is for the police and the Crown Prosecution Service to decide on relevant charges, taking into account all the circumstances of the case. I do not want to put on statute what charges the police or CPS should bring, but again, the potential is there should they wish to do so.
I will touch briefly on the sentencing aspects of the amendment. At present the maximum penalty for theft is seven years’ imprisonment. The maximum penalty for robbery is life imprisonment. Conspiracy to commit theft or robbery has the same maximum penalty as the base offence. The effect of this amendment, therefore, would be to create a form of conspiracy to commit theft offence that would potentially have, if fewer than five people were acting together, a lower maximum penalty than theft or conspiracy to commit theft have now.
As we discussed previously, the amendment also introduces minimum sentences. I made it plain in our debates on Monday that minimum sentences are rare in law. Parliament has set them in statute only exceptionally. They are not appropriate in this instance. Sentencing guidelines for theft, which courts are required to follow unless it is not in the interests of justice to do so, already highlight when considering the culpability of an offender factors such as involvement of others through “coercion, intimidation or exploitation”. The issue of
“sophisticated nature of offence/significant planning”
is also relevant. The other aggravating factors that the court must consider include taking account of previous convictions.
Therefore, I cannot accept the noble Lord’s amendment, for my reasons and those that the noble Baroness, Lady Doocey, has mentioned. However, I do not want him to leave the Committee tonight thinking that this Government are not committed to tackling shop theft. We are, through the measures that we have taken and are encouraging police to take, through the measures in this Bill to change the definition of shop theft in Clause 39 and in providing protection for retail workers in Clause 37.
Shop theft is shop theft. It costs all of us resource on our bills. It costs businesses resource. It is money which should be invested in the local economy rather than going into the pockets of people who opportunistically, individually, for whatever reason—from poverty to organised criminal gangs, from drug abuse to alcohol abuse—commit shop theft in many of our stores. I want to make sure that we do all we can to reduce it and to provide deterrents to it. I ask the noble Lord to withdraw his amendment.
Lord Blencathra (Con)
My Lords, I am grateful to noble Lords who have contributed to this debate, including my noble friend Lord Randall of Uxbridge and, for his full support for my amendments, my noble friend Lord Davies of Gower.
The noble Baroness, Lady Doocey, said that if someone is stealing from their shop, shopkeepers do not have time to go through the video cameras to get the evidence. If a shopkeeper has someone stealing from their shop and cannot be bothered to look at the TV cameras to see the evidence for it, he cannot complain about shop theft. If he has the evidence, for goodness’ sake, he should use it. I do not think that the noble Baroness read my amendments on all the protections that I have built in for those who do want to arrest criminals. The Minister set out in his excellent speech all the powers of citizen’s arrest that a security guard or a shopkeeper can have, but the noble Baroness said that no one should have the power to arrest except a policeman who is properly trained. That is rather bizarre, to use a word that was used earlier about my amendments.
Lord Hanson of Flint
Member’s explanatory statement
This amendment defines “the relevant part” of the United Kingdom for the purposes of this clause and Clause 41 as the part of the United Kingdom in which the person aged 18 or over engages in conduct towards or in respect of a child.
Lord Hanson of Flint (Lab)
My Lords, the government amendments to the child criminal exploitation offence in Clauses 40 and 41 are intended to provide legal certainty and further tighten the grip of the law against those who seek to draw children into criminality.
At the request of the Scottish Government and Northern Ireland Department of Justice, the child criminal exploitation offence was extended UK-wide in the other place. As the offence is committed where an adult intentionally takes action to cause a child to commit criminal conduct, it is now necessary to provide further clarification about where the child’s conduct must be criminal. This is owing to the fact that the criminal law is devolved in Scotland and Northern Ireland, and a child’s conduct that is criminal in one may not be criminalised in another.
Perpetrators who exploit children for criminal purposes do not care about the UK’s internal borders, so it is right that we ensure that this new offence prevents them from taking advantage of them. Government Amendments 217, 220, 221 and 223 to 230 ensure that it does not matter whether the intended conduct of the child is criminal in the part of the UK where the adult is acting to exploit them or the part of the UK where they intend the child to act. If it is criminal in either one, the perpetrator can be prosecuted. If it is not criminal in either one, the offence is not committed.
Amendment 231 puts beyond doubt that a perpetrator commits the child criminal exploitation offence where the child they have exploited is under the age of criminal responsibility. Even though a child under 10 in England, Wales and Northern Ireland, or under 12 in Scotland, cannot technically commit an offence or be prosecuted for it, they can still be exploited, and it is right that this offence says so clearly and explicitly on the face of the Bill.
Amendments 487, 493 and 510 make consequential amendments to the general provisions at the back of the Bill. Together, these amendments demonstrate the Government’s unwavering commitment to leave no space for perpetrators who target children for criminal purposes to expose loopholes or to escape to.
There are a series of other amendments in this group; the noble Lord, Lord Hampton, my noble friend Lady Armstrong of Hill Top and the noble Baroness, Lady Finlay of Llandaff, have Amendments 218, 219, 222 and 222A. I want to listen to what noble Lords say and will respond to any comments on those amendments at the end of my comments. I beg to move.
Lord Davies of Gower (Con)
My Lords, I thank noble Lords who have spoken in this important debate. The group largely seeks to clarify the Bill as it stands and that is important when we are addressing child exploitation. I am grateful to the noble Lord, Lord Hanson of Flint, for the amendments tabled in his name. I know we may not always see eye to eye at the Dispatch Box, but I can wholly support the principle behind his amendments in this group.
It may seem like semantics to clarify that offences may differ in different parts of the United Kingdom, but it is an important point. We must ensure that the legislation allows crimes to be prosecuted only where they are crimes. His Amendments 217 and 220, and the many consequential amendments, aim to ensure that this is the case. Similarly, his Amendments 487 and 493 extend the devolutionary power to make regulations for the area of child criminal exploitation. It is right that this is consistent. Those who create the laws should have the legislative right to make provisions within their remit.
We also broadly support the principles behind the other amendments in this group, which aim to give more protections to children. Amendments 218 and 219, in the name of the noble Baroness, Lady Armstrong, seek further to define what constitutes child criminal exploitation and extend the provisions to actions that may support criminal activity while not being criminal themselves.
Amendments 222 and 222A aim to narrow the scope of reasonable excuses that offenders can give when claiming to believe that the child was over the age of 18. The sentiment behind these amendments is a noble one. Whether the adult believed they were a child is largely inconsequential to the exploited child. Therefore, if the adult is not to be prosecuted, the court must be absolutely certain that they did not believe the child was under 18. That being said, I am slightly wary of completely disapplying reasonable excuse as a defence. It would take away the opportunity of defence in the very rare cases where the adult had a genuine and proven reason to believe the child was an adult. As I say, this is very rare, and it is still criminal exploitation, but we must still account for it.
Overall, this group is sensible, procedural and necessary; I therefore offer my support to the Minister’s intentions.
Lord Hanson of Flint (Lab)
I am grateful to the noble Lord, Lord Hampton, and my noble friend Lady Armstrong of Hill Top for their amendments, and to the noble Lord, Lord Russell of Liverpool, for putting his name to them and for his supportive comments.
Before I lose the point made by the noble Baroness, Lady Doocey, about a national register, I will just say that the Police National Computer and the child criminal exploitation prevention orders can impose notification requirements on persons subject to orders requiring them to inform the local police of their name and address. I had that on my phone before I peered at my notes, and I did not want to lose that point.
I will start by welcoming Clause 40. It is a positive, forward-looking clause that will help support the reduction of child exploitation. I am grateful for the amendments that have been tabled, and I am also grateful for the support of the noble Lord, Lord Davies, and the noble Baroness, Lady Doocey, for the amendments I have tabled.
Amendment 218, tabled by my noble friend Lady Armstrong of Hill Top and supported by the noble Lord, Lord Russell of Liverpool, would require that, for the child criminal exploitation offence to have been committed, the perpetrator had used
“threats, physical force, intimidation, persuasion or any other means”
against the child. In doing so, my noble friend seeks to illustrate the ways in which children can be criminally exploited. However, I put it to her that, in specifying the required means by which an adult gets a child to commit criminal conduct, the way in which the amendment is phased risks narrowing the application of the offence, because the prosecution would have to additionally prove those means of exploitation took place. Currently, the child criminal exploitation offence does not require proof that the child was subjected to threats, physical force, intimidation or any other harmful ways in which the child’s compliance was obtained by their exploiter. This is because, as a Government, we are very clear that children cannot consent to their own exploitation, so the offence could be committed regardless of whether and how the child was compelled to engage in the intended criminal activity.
Although my noble friend’s amendment includes the words “any other means”, which mitigates against any narrowing of the scope of the offence, I do not consider it necessary to include an illustrative, non-exhaustive list in this way. It would cause courts potentially to wonder about its purpose as a legal test and may have the unintended consequence of limiting the circumstances in which the child exploitation offence may be made out. I want my noble friend to think about that. I suggest to her that the prosecution wants to get the best case, and, by accepting her amendment, we might end up narrowing the potential success of legislating against this offence.
My noble friend also tabled Amendment 219, which would more specifically capture adults who intend to cause a child
“to engage in actions that support or facilitate”
crime. My noble friend indicated in her speech that the purpose of this amendment is to ensure that the offence of child exploitation also includes causing a child to commit an action which, while not itself illegal, can lead to future criminal behaviour. We have looked at this amendment in some detail, but I consider the objective is already met by subsection (1)(a)(iii) of the clause, which captures where the adult does something to the child now to facilitate or make it easier to cause the child to commit a criminal act in the future—the noble Baroness can find this on page 59 of the Bill as currently drafted. I hope she will look at that and reflect on it as part of these discussions, before any further discussion takes place on Report.
Furthermore, actions that support or facilitate crime may already amount to an offence, such as the offence under the Serious Crime Act 2007. Where an adult intentionally causes a child to commit an offence, the child criminal exploitation offence may be committed.
I am grateful for the words of the noble Lord, Lord Hampton, in support of his Amendment 222. This amendment seeks to remove the requirement that, for the child criminal exploitation offence to be committed, it must be proved that the defendant does not reasonably believe that the victim is aged 18 or over. My noble friend Lady Armstrong mentioned the issue of migrants—we are currently examining facial recognition issues in relation to migrants, and we had a discussion about that in the other Bill that I am taking through the House at this moment on immigration very recently. But she makes a very important point. I sympathise with the noble Lord’s desire to ensure that all adults who target children to draw them into crime can be caught by this offence, but that is precisely why the reasonable belief test is important—to ensure that perpetrators who deliberately and intentionally target children to commit crime are correctly identified and prosecuted. If there was no requirement to prove a lack of reasonable belief that the alleged victim was a child, it would risk criminalising people as exploiters of children who genuinely did not intend or contemplate involving a minor in criminality.
We must remember that the child criminal exploitation offence requires no proof of harmful behaviours against the child, such as coercion, force or threats. This goes back to the first point that I mentioned in response to my noble friend’s first amendment. It is committed simply when an adult engages in any contact or conduct towards or in respect of a child intending to cause them to commit a crime. The exploitative nature of this offence is the imbalance of power, which is exercised by an adult in deliberately and purposely seeking to involve a child in crime. Where that is not a factor in a case, as demonstrated by what they believed about the child’s age, there are other more appropriate offences that might be charged. For example, where a person encourages or assists someone to commit an offence regardless of their age, there is already an offence under the Serious Crime Act 2007.
Again, I welcome the discussion that we have had this evening, I welcome the contribution of Action for Children, and I welcome the discussion that we have had from the Children’s Commissioner for England, who called for this amendment due to concerns that perpetrators will seek to take advantage of considerations around the reasonable belief of age to undermine the credibility of victims and potentially escape prosecution. I welcome those contributions to the debate. I want to give them, with my colleagues in the Home Office, serious consideration. However, I make the point to the noble Lord that at the moment we do not consider reasonable belief of age to be a loophole, as is suggested—and in support of that I make a number of points.
First, there is a test of reasonable belief that does not necessarily require that the defendants have specific knowledge about the victim’s age, which would be a higher burden. Secondly, a perpetrator’s claim as to their belief alone will not be enough to escape prosecution, as prosecutors can and, I hope, would establish either that they did not believe the victim was 18 or, even if they did, that that belief was not reasonable. Thirdly, it only applies to children aged 13 to 17, not the most vulnerable children aged under 13. Finally, it follows established precedent in other offences, where the core offending relates to an adult’s conduct towards a child—for example, to child sexual exploitation offences in the Sexual Offences Act 2003.
I am grateful to the noble Lord, Lord Russell of Liverpool, for referring to the noble Baroness, Lady Finlay of Llandaff, on Amendment 222A—she is not here today. It is commendable that someone has looked at other amendments and decided not to move their own; it is a very un-egotistical way of approaching this business.
Lord Hanson of Flint (Lab)
The noble Lord, Lord Russell, says “Cross-Bench”. I will take that as a bonus point for the Cross Benches. It is a noble approach to take towards the amendment. So I will not deliberate on those points as I would potentially have done, but I ask the noble Lord simply to pass on my thanks to the noble Baroness for her self-awareness on that issue, which is commendable.
I hope that, with those comments, my noble friend and other noble Lords will not press their amendments, will reflect on what I have said and, if need be, will consider this outside the Committee. I commend the amendments in my name to the Committee.
Lord Hanson of Flint
Member’s explanatory statement
This amendment amends sub-paragraph (ii) so that it covers the child doing anything outside the relevant part of the United Kingdom, if the child doing that thing in that relevant part would constitute an offence.
Lord Hanson of Flint
“(1A) In subsection (1)(a) “offence” means an offence under the law of a part of the United Kingdom.”Member’s explanatory statement
This amendment provides that in subsection (1)(a), references to an offence are to an offence under the law of a part of the United Kingdom.
Lord Hanson of Flint
Member’s explanatory statement
This amendment is consequential on my amendment of Clause 40 at page 59, line 31.