Offensive Weapons Bill

Debate between Earl Howe and Earl of Listowel

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

[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.

--- Later in debate ---

[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.

Armed Forces (Flexible Working) Bill [HL]

Debate between Earl Howe and Earl of Listowel

Committee: 1st sitting (Hansard): House of Lords
Tuesday 12th September 2017 Grand Committee

[The Earl of Listowel (CB)]

My Lords, listening to the Minister’s comments and reflecting on the discussions on the Bill, I understand that the children of many service personnel have quite difficult journeys into adulthood, with a lot of disruption. Looking at the new provisions in Clauses 1 and 2, am I right in thinking that the Bill will make it easier for parents with young children to remain close to those children if they choose to do so, and might it reduce the disruption to those children’s lives? Might that be the effect of the Bill?

[Earl Howe]

Certainly. Although that is not the whole rationale, the provisions that we are proposing to introduce are designed to be family-friendly—for example, for women considering starting a family or those with caring commitments, or those who are bringing up a family and, for any reason at all, there are personal circumstances that create difficulties for them. That could be a very good reason for somebody to apply to work part-time on a temporary basis. So I agree with the noble Earl.