Offensive Weapons Bill

Earl Howe Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 28th January 2019 Grand Committee

[Lord Ramsbotham]

My Lords, I put my name to this amendment purely to be consistent with what I said at Second Reading. As the noble Lord, Lord Paddick, has pointed out, it could be that children are sent to collect corrosive substances from shops. They do not know that the substance is corrosive, as defined by the Act, and could be caught in possession by stop and search techniques, resulting in thoroughly unfortunate imprisonment.

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, I am grateful to the noble Lord, Lord Paddick, for explaining the rationale behind this amendment which would, as he has acknowledged, fundamentally change the nature of the offence provided for in Clause 6. As the noble Lord pointed out, we return in part to the arguments that he put forward in the first group of amendments. I appreciate the noble Lord’s concerns, but I will set out the reasons why we are seeking to introduce this new possession offence.

The noble Lord, Lord Paddick, made reference at Second Reading to the existing legislation in this area, and I will explain why it is not sufficient to tackle the problem of individuals carrying corrosive substances in public. Under Section 1 of the Prevention of Crime Act 1953, it is already the case that anyone who is in possession of a corrosive substance can be prosecuted for the offence of possession of an offensive weapon. However, for the accused to be guilty of the Section 1 offence, it is necessary to prove that they are carrying the corrosive substance with the intention of causing injury. Such intent can be proved, for example, in cases where an individual has decanted the corrosive substance into a different container for the purposes of making it easier to squirt or throw at another person and also to conceal it from the police. However, the intention of Clause 6 is to strengthen the powers available to the police and the Crown Prosecution Service. We want to remove the burden on the police and the prosecution to prove that the person was carrying the corrosive substance with the intention to cause injury.

This approach is not novel; it is consistent with the possession offence for knives and bladed articles. We have modelled the new offence on existing legislation in place for the possession of knives under Section 139 of the Criminal Justice Act 1988. There is also a similar offence in place in Scotland. We have put in place suitable defences for members of the public to prove that they had good reason or lawful authority to be carrying the corrosive substance in a public place. These defences are also modelled on existing legislation for the possession of knives.

I know that noble Lords may be concerned about law-abiding members of the public being stopped by the police as they leave their local supermarket or tradespeople being stopped. However, I reiterate the points that my noble friend made at Second Reading about how we envisage the new offence being used by the police. This is not about the police criminalising tradespeople, children sent on an errand or law-abiding members of the public. We would fully expect the police to use this new offence in response to information or intelligence from the local community that someone was carrying a corrosive substance in public.

Furthermore, as my noble friend also indicated at Second Reading, with the National Police Chiefs’ Council, we have jointly commissioned the Defence Science and Technology Laboratory to develop a testing kit for the police to use to be able to identify corrosive substances in suspect containers. This work is well under way, and we want to have a testing kit in place before commencing the new possession offence.

We need to strengthen the law to tackle the abhorrent use of corrosive substances as weapons. This amendment would effectively leave the criminal law as it currently is. I hope that, in these circumstances, the noble Lord is persuaded of the case for the new offence as currently formulated and would be content on reflection to withdraw his amendment.

[Lord Paddick]

My Lords, I am grateful to the Minister for his explanation. I seek clarification, however, on Section 1 of the Prevention of Crime Act 1953, about which the noble Earl said that in order for somebody to be guilty of an offence under that Act, intent had to be proved. However, if the person is in possession of a made offensive weapon—an offensive weapon that has no other purpose than to cause injury: a dagger, for example—then my understanding is that no intent is required. Indeed, if the article that the person has with them is adapted to cause injury—for example, a water pistol filled with a corrosive liquid—again, there is no need to prove intent. That would make the existing offence even stronger than this offence as amended by this amendment.

The noble Earl talks about consistency with Section 139 of the Criminal Justice Act 1988 regarding bladed and pointed instruments. I accept that the offence as drafted is consistent with that Act, but, in my view, two wrongs do not make a right. The noble Earl and the noble Baroness earlier talked about how the Government envisage that the police will use this legislation. They fully expect the police to use it in response to intelligence. I go back to what I said on the first group: having been an operational police officer for more than 30 years, I do not share the confidence that the Government have about how, in every case, the police are going to use this legislation. This is the source not only of my concern but, as I have said, of the concern of the organisations I mentioned in proposing the amendment.

As far as the testing kit is concerned, that is something that we will return to in a successive group later on. However, having made those points, I beg leave to withdraw the amendment.

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[Baroness Hamwee]

My Lords, I shall speak also to Amendments 30 and 31. These amendments are in my name and that of my noble friend. Amendments 29 and 30 seek to understand what is meant by “lawful authority”. In Clause 6(2)—I am not making any concessions about the points made on the first group of amendments this afternoon—it is a defence to prove that a person had “good reason” or “lawful authority” for having the corrosive substance with them in a public place. Obviously, lawful authority is not the same as good reason, otherwise it would not have to be provided for—although one would have thought that lawful authority would be good reason. But what is lawful authority? Where does the authority come from? Who gives it? How does one apply for it? Is it a consequence of some other arrangement that is in place? Amendment 29 applies to England, Wales and Northern Ireland and Amendment 30 to Scotland, but they make the same point.

Amendment 31 makes a very small point, but I have discovered over the years that sometimes small points are worth making. Under Clause 6(3) one can show that one had the corrosive substance for “use at work”. My amendment would substitute for those words “the purposes of work”, thereby distinguishing in my mind the purpose and the place. These days “work” is very often used to designate the place. Technically, that might be a bit lax, but it is what people say: “I’m going to work”. They do not mean, “I’m going to put in a good day’s effort”; they mean, “I’m going to my place of work”. The Minister may say that “for use at work” implies “purpose”, but one might take something to use at a place where there is no legitimate reason for using it. I beg to move—and I wish Hansard could record the look on the Minister’s face.

[Earl Howe]

My Lords, as the noble Baroness explained, these amendments address the defences available if someone is charged with an offence of possessing a corrosive substance in a public place. As I understand her, these amendments are intended to probe what would constitute lawful authority to be in possession of a corrosive substance in a public place. She then went on to comment on the phrase “for use at work”.

On the lawful authority issue, let me give your Lordships one example. Under the Poisons Act 1972 there is a licensing regime for regulated substances such that a Home Office licence is required to import, acquire, possess or use a regulated substance. Both nitric acid at above 3% concentration and sulfuric acid at above 15% concentration are regulated substances. Therefore, there may be circumstances where a Home Office licence holder has purchased a corrosive product containing one of these substances and is transporting it from A to B. This would be a scenario where the defence of lawful authority might come into play.

However, for the majority of cases, a person would need to rely on the defence of having good reason—unless, of course, they were a tradesperson and had purchased the corrosive for use at work. This brings me to Amendment 31, about how we have framed the defence for tradespeople and businesses. The reference to “for use at work” replicates the terminology used in existing knife legislation. The existing defences in relation to the possession of an offensive weapon in a public place are well understood by the police and various trades and businesses, and we are not aware of any issues in the operation of them in relation to the possession of knives.

While I can see the intention behind the amendment, I will need to think about what the noble Baroness has said—but I am not convinced that it is necessary or in practice achieves any significantly different result. I am also concerned that having a different defence in place for possession of corrosives, compared with that for knives, would or could cause confusion and unnecessarily complicate the law. So I hope that, at least for now, I have been able to provide sufficient clarification to persuade the noble Baroness to withdraw these amendments—although, as I have said, I promise that I will read carefully in Hansard what she said.

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[Lord Tunnicliffe]

My Lords, perhaps I may speak briefly on this rather macabre amendment. First, I am not sure who the testing is to be done on. I cannot see many volunteers being willing to be corroded. My second and more substantive point is that I cannot see why the definition is required because, as I read the Bill—not an easy Bill to read, as we have discovered today—a corrosive substance is de facto defined by Schedule 1. I would have thought it much more satisfactory to retain the concept of a schedule, which can be altered by order, than to have this rather frightening test.

[Earl Howe]

My Lords, I am grateful to my noble friend for explaining his amendment, which seeks to modify the definition of a corrosive substance for the purposes of the new possession offence. This provides me with the opportunity to clarify why we have taken the approach that we have, and to reassure him about how the new possession offence would be used.

We know that perpetrators of these horrendous attacks often decant the corrosive into other containers, for example soft drinks bottles. This is done to make the substance easier to use but also to conceal.

Police officers who come across an individual carrying a bottle containing a suspect liquid will not know exactly what chemicals it contains or at what levels. As a result, the approach we have taken for the sales and delivery offences of defining a corrosive product by substance and concentration limit will not work on our streets. The police require a simpler definition for use operationally, so we have defined a corrosive substance by its effect rather than by its specific chemical composition—that is, as a substance capable of burning human skin by corrosion.

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[Baroness Hamwee]

Before the noble Lord responds, first, will there be an opportunity for Parliament to consider the arrangements for testing when they are pretty much complete? I am sure it will be of interest. Secondly, are skin and eyes similarly sensitive? Or do we risk not outlawing a substance that might damage the eyes but would not damage the skin?

[Earl Howe]

In answer to the second question, my understanding—on advice—is no. A substance capable of burning the skin by corrosion would also be capable of doing severe damage to the eye, and the other way round. We do not think we are excluding any substance by accident in defining corrosive substances in this way. On the noble Baroness’s first question, as I understand it, the approval of the testing kit will not be subject to any formal parliamentary procedure, but I am sure the noble Baroness is capable of finding ways to tease out relevant information from the Home Office at the appropriate time.

[The Earl of Listowel]

My Lords, in thinking about how criminals might think about getting around the law that the Government are proposing, I add this as a footnote to take away. Would it be possible to take two separate substances, which on their own might be quite innocuous, but when mixed together could be powerfully corrosive and thereby say you were not carrying corrosive substances? That is something to take away as a possible concern.

[Earl Howe]

I am grateful to the noble Earl. Not being a chemist, I do not know whether this applies to corrosive substances as it does to, say, explosive substances. I will certainly take advice on the matter.

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[Earl Howe]

My Lords, Clause 8 provides an appropriate custodial sentence where a person is 16 years old or older and is convicted of the offence of possession of a corrosive substance in a public place in England and Wales and has at least one relevant previous conviction, as defined in Clause 9. We have made it a requirement that the court must impose an appropriate custodial sentence unless it decides that there are particular circumstances relating to the offence, the previous offence or the offender which would make it unjust to do so. We have defined an “appropriate custodial sentence” as a custodial sentence of at least six months’ imprisonment for an offender aged 18 or over. For an offender aged 16 or 17, we have defined an “appropriate custodial sentence” as being a detention and training order of at least four months’ duration.

The noble Baroness, Lady Meacher, referred specifically to Clause 8(2). It is not designed, as she suggested, to reflect the sentencing guidelines. The clause mirrors existing knife legislation and ensures that anyone aged 16 or over who is convicted of a second possession or similar offence, such as an offence relating to a knife, will receive a custodial sentence unless the court determines that there are appropriate circumstances not to do so. The use of appropriate custodial sentences will make it clear to individuals that we will not tolerate people carrying corrosives on our streets and other public places in circumstances which would enable them to cause injury or commit another offence, such as robbery.

Amendments 34 to 36 in the names of the noble Lords, Lord Ramsbotham and Lord Paddick, seek to confine these provisions to adult offenders. I understand why the noble Lords are proposing this but I really think—as do the Government, very firmly—that, given the nature of this particular form of offending and the appalling injuries it can cause, the minimum sentence should apply to 16 and 17 year-olds as well as to adults, as for the existing offence of possession of an offensive weapon in a public place. We fully recognise, however, that this cohort of young offenders should be treated differently from adult offenders. I have already indicated that for 16 and 17 year-olds the minimum sentence is a four-month detention and training order as opposed to six months’ imprisonment in the case of adult offenders.

In addition, for this age group, we have ensured that when considering whether there are particular circumstances which would make imposing an appropriate custodial sentence unjust, the court must have regard to its duty under Section 44 of the Children and Young Persons Act 1933. This relates in particular to the issues raised by the noble Baroness, Lady Meacher. Under that section, the court must have regard to the welfare of the child or young person, take steps to remove them from undesirable surroundings and ensure that proper provision is made for their education and training. We have also ensured that there are procedures for appeals in those circumstances where a relevant conviction, which was relied upon by the court to impose an appropriate custodial sentence, has been set aside on appeal.

I recognise that there are some Members of the Committee such as the noble Lord, Lord Ramsbotham, and the noble Baroness, Lady Hamwee, who object as a matter of principle to minimum sentences as provided for in Clause 8. I fully accept that the normal practice is for Parliament to set maximum sentences and leave it to the discretion of the court to determine the appropriate sentence, having regard to the facts of an individual case. However, there are already a number of exceptions to this rule, including, as I have said, in relation to second convictions for possession of an offensive weapon in a public place. We regard the possession of corrosive substances in a public place as equally serious and therefore deserving of the same sentencing framework.

As I have indicated, the requirement to impose the minimum sentence is not absolute and the provisions still allow for some judicial discretion. The court must still consider the particular circumstances of the case and, if there are relevant factors relating to the offence or the offender such that it would be unjust to impose the minimum sentence, the court has the latitude in such a case not to do so. That could be: where the seriousness of the offending falls far below a level deserving custody; strong personal mitigation of the defendant; or the undue impact that going into custody may have on others. In addition, the courts would have to consider the effect of a guilty plea. In the youth justice system, four months is the minimum detention and training order available, so any reduction would mean that a community order is imposed. It is important to emphasise that.

It remains a matter for the court to weigh up all the relevant aggravating and mitigating factors before deciding the appropriate sentence to impose, at or above that required by this clause, and subject to the question of it being unjust in all the circumstances which I have mentioned. In short, the Government are firmly of the view that in exceptional cases such as this, there is a place for minimum sentences in our sentencing framework. We are dealing here with repeat offenders who pose a particular risk to others and our communities, and the law and the courts should recognise this.

Finally, Amendment 37 deals with the test to be applied by an appellate court on any appeal against sentencing where the provisions of Clause 8 apply and a previous relevant conviction has been overturned. In any case where there was only one previous relevant conviction and that conviction was subsequently overturned on appeal, the criteria provided for in Clause 8(2) would not be relevant in the case of an appeal against sentence to which Clause 8(6) applies. Where the conditions requiring a court to impose a mandatory minimum sentence no longer apply after the fact, a court hearing an appeal against a sentence would be bound to quash it and pass a new sentence without regard to the provisions in Clause 8. Given this explanation, I hope that the noble Lord, Lord Ramsbotham, will withdraw his amendment and that the noble Baroness and the noble Lord, Lord Paddick, will support Clause 8 standing part of the Bill.

[The Earl of Listowel]

My Lords, I thank the Minister for his response. With regard to children and young people in local authority care, and young people leaving such care, might the courts not be given some guidance as to a more lenient treatment of them? I think we recognise the statistics on the high levels of children from care and care leavers in custody. We have a corporate parenting responsibility towards these young people. We know that over 60% of them enter care because of physical abuse or neglect on the part of their families, and that very few of them enter because of criminal or anti-social behaviour. Will the Minister consider giving guidance to the courts on our corporate parenting responsibility to these young people and, regarding their histories, should we consider giving them a more lenient approach in the courts?

[Earl Howe]

My Lords, the noble Earl has often and rightly emphasised the vulnerability of children in care and young people leaving care. I fully accept that point. However, as he has heard, the provisions under the 1933 Act constitute a very considerable duty on the court to look at the pertaining circumstances of a case. He will also know that the Sentencing Council provides exactly the kind of guidance to which he alluded. If there is any more I can say on that, I will be happy to write to him. I am sure that the Sentencing Council will not be slow to follow up on any proposal emerging from the provision in the Bill.

[Lord Ramsbotham]

My Lords—

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[Lord Ramsbotham]

My Lords, I support the noble Lord, Lord Bethell, in this, because so many things that were alleged about the inefficiency of various measures are unproven. For example, short sentences are said to be no deterrent. We do not know for certain, and therefore I support entirely a continuous review. We must have more data to be able to be more precise in the measures that we take.

[Earl Howe]

My Lords, I am grateful to my noble friend Lord Bethell for setting out the rationale for these amendments. I understand his intention, but I hope to persuade him that there will be adequate reporting of the use of the new powers in the Bill relating to corrosive substances without the need for statutory provisions such as this. Once the offences in this Bill are brought into force, the collection of data regarding corrosives offences will be much more accessible for police forces and will allow for a much clearer picture to be presented on the extent of corrosive attacks and the corresponding law enforcement response.

My noble friend may be aware that we are already working with the police to improve how offences involving corrosives can be better captured in police data to help understand the scale of attacks. We have submitted a joint application, with the National Police Chiefs’ Council, to the police data requirements group to establish a new data collection requirement with respect to corrosive attacks as part of the annual data requirement on all forces in England and Wales. Subject to agreement, these would allow for regular publication as part of the Office for National Statistics quarterly crime statistics.

In relation to Amendment 38, I simply point out to my noble friend that all government legislation such as this is subject to post-legislative review five years after Royal Assent. In the intervening period, there are the usual arrangements for scrutinising government policies and the operating of new powers such as contained in this Bill. For example, it will be open to my noble friend to table periodic Written Questions or initiate a debate.

Given these established methods, I am not persuaded that we need a bespoke duty to report annually on aspects of this Bill. I fully accept that this is a serious issue, but I hope I have provided my noble friend with sufficient reassurance on the action that we are taking to address it and that, accordingly, he will be content to withdraw his amendment.

[Lord Bethell]

My Lords, the Minister puts it very persuasively and I am happy to withdraw the amendment.