Offensive Weapons Bill

Earl of Listowel Excerpts

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

[The Earl of Listowel (CB)]

My Lords, listening to the debate and the presentation of the amendment, I wonder how the amendments might protect the important relationships between young people and the police—maybe particularly between young people from ethnic minorities and the police. I can see that if the authorities have to do more work before they can detain a young person or take them to a police station, it might prevent trouble between the police and young people. My sense—and I am sure we will discuss this further on—is that one of the reasons young people carry knives is because they distrust the police and do not feel that authorities are there to protect them. The amendment may be helpful in engendering more confidence in the police—and indeed the authorities—among young people, particularly those from minority-ethnic communities, and help to make it less likely that young people will carry knives. I would be interested to hear the view of the noble Lord, Lord Paddick, on that, from his experience on the beat, if he has time towards the end of this discussion.

[Lord Tunnicliffe]

My Lords, the Opposition are generally in favour of this Bill, but I find the arguments of the noble Lord, Lord Paddick, somewhat persuasive. I particularly like the way the noble and learned Lord, Lord Judge, put things in the general perspective of law. Even little deviations from sound general principles are a bad thing, so I hope the Minister will not reject this out of hand but will ponder this set of amendments. The only area I am slightly unsure about—the noble Lord, Lord Paddick, or the Minister may want to address this—is the argument that the defence has to be proved beyond reasonable doubt. My understanding was that there was a general piece of law that said that defences have to be proved only on balance of probability. It is important to know which of those tests the defence has to meet.

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[Baroness Newlove (Con)]

My Lords, listening to the debate on this amendment makes me feel very nervous. As someone who has been a victim of crime by a gang of youths, and as the community champion when I came to this place, my worry is that there is an argument about short-term sentences, because of the process a prisoner goes through. I have gone into prisons and youth offender schemes, so I have done my homework and have worked with them a lot. My nervousness is because, while this is about short imprisonment, imprisonment is effective for people for whom a community sentence does not carry that weight.

Going around the country and speaking to communities, I find they do not feel that their voice is being listened to when someone is given a community sentence. The noble Lord, Lord Ramsbotham, quite rightly said that we need to have quality community sentences. At the moment, we have painting fences and gardening while wearing visors. I am conscious about how we shift this pattern of our community sentences and what they are worth.

In addition, there is kudos in this in the gangs that we deal with. When there were ASBOs, it was cool to have an ASBO. I am conscious that we need to look at short sentences and at the messages we are sending to the community and to the gangs, who can hold one sentence against the other. If the Government are going to go that way, I would like quality community services.

I have been out with youth offender trainers. They are short-staffed and underresourced. The intelligence I had from young people who were going into gangs was that they were not bothered whether they were going to prison or doing community service. They had no idea of what they were in trouble for. That is where the serious violence strategy needs to be better—it is about the two together. I am very nervous about community sentences. Can we have further discussions about them? They are part of the essential message we are sending to youngsters and to communities that are suffering and are scared to come forward because their lives are being threatened.

[The Earl of Listowel]

My Lords, I support these amendments. I recognise how important it is for the Government to make a robust response to public concerns about knife crime and the use of corrosive substances—the Victims’ Commissioner has just reiterated that. One must bear in mind the huge cost of sending people to prison. I would be very grateful if, in her reply, the Minister could give some idea of how much a short prison sentence costs compared to community provision. We have just heard that there is insufficient investment in high-quality community provision. The difficulty is that, when one starts ramping up the prison population, one has to spend more and more on an expensive provision which is ineffective. It is perhaps a difficult communications job for the Government, but the best way of protecting the public from these kinds of crimes is to invest in high-quality community provision, community support officers and police on the ground so that people can see them in their communities.

We are facing an uncertain future as a country. We recognise the limitations on our resources. If we start increasing the number of people being placed in prison, as we have done in the past, we perhaps do not have the money to do both, and we will not be able to make the most effective provision. For instance, we are not talking about children in this amendment, but I think I am right in saying that 68% of children who serve a short prison sentence will commit a crime within a year of being in prison, whereas 58% of those placed in community intervention will do so. That statistic takes into account the gravity of the crime.

There is scientific evidence that community interventions are more effective than prison sentences, at least for children. In seeking to reassure the public, we risk spending a lot more money on something which is relatively ineffective and not putting resources in an area where they are demonstrated to be effective. It is a difficult job, because the Government also have a role to reassure the public. If the public really believe that prison sentences are the only way to respond to this, we are in a difficult position. I think the public can be persuaded that we should not put money into expensive things which are not effective.

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[Baroness Newlove]

I have an issue with the cost of putting extra money into prisons. The communities that I am involved in, and see on a daily basis, are not nice rural villages. On a daily basis, they are being told the absolute opposite of what the noble Earl is saying. Investing more in communities—to get their trust in services—will give them confidence and will nurture our society.

I have been in prisons and I am not saying they are not horrendous. One young offender who had been in a riot said to me: “It’s minging in here”, but he still could not grasp what he had done. He was a first-time offender and his solicitor had said: “Don’t worry, son, it’s your first offence”. I have an issue with giving this line to young people. I also have an issue with governors. I have seen good services, such as training young prisoners in the skills to get involved in optician work for children abroad. But when another governor comes in, he completely whitewashes everything and wants his own blueprint. That happens everywhere.

If it is about money, we need to look further at what we can do. We also need to look at what we are trying to achieve by not sending people to prison. I have an issue with money because our prisons would not be full if you invested it well. Communities need to feel safe and, at the moment, they do not. They feel that what they hear and say are worthless.

[The Earl of Listowel]

I thank the noble Baroness for her intervention. I think we are saying the same thing: we need to put the money where it can be effective. We can put money into the community in many different ways, including increasing the number of community support officers or police officers on the beat. In particular, young men—so many of whom are growing up without fathers in the home—need to find mentors they can identify with and so begin to turn their lives around, as I have seen so often myself. Those services are effective, but they are easily cut. I am concerned that, in progressing with short prison sentences, we are actually throwing money down the drain. However, I see that the Government are in a difficult position. They need to be seen to be making a robust response to something that so many people are afraid of.

[Baroness Eaton (Con)]

I support the words of my noble friend Lady Newlove. Much of what the Committee has heard this afternoon about corrosive substances has referred to the appalling use of them by young people. Statistics on this are more difficult to find than on some of the other offences that we will be discussing later. I have serious concerns about the connection with drugs. The threat of acid attack is regularly used on young people involved in county lines.

One thing we have not mentioned this afternoon is the terrible situation of violence against individuals in domestic abuse situations, which is less frequent and not often reported. Surely short-term sentences will not deal with that. This is not the same as the pressures on young people to conform to gangs and so on. This is something quite different and I would like to think that there are very serious responses to that in our system.

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[Lord Kennedy of Southwark]

I am more comfortable with the Minister’s explanation than I am with what is written in the Bill. Perhaps we can look at this again between now and Report. The Bill seems harsh—it says that there will be a prison sentence—whereas the Minister has said that a whole suite of options will be available to the courts, including community sentences. It seems a shame that what is written in the Bill is not the whole case. As the noble and learned Lord, Lord Judge, said, prison might be the right option in some cases, but in other cases a community sentence would be appropriate. I not a lawyer—I am a lay person—but perhaps we can look at how the Bill is written. As I said, I am happier with what I have heard than with what is in the Bill.

[The Earl of Listowel]

My Lords, I thank the Minister for her helpful, informative and careful reply. I particularly welcome what she said about the need to think about placing women in prison, given the stubbornly high level of female imprisonment over many years now. I was thinking about the fact that one in 10 lone-parent families is headed by the man. Is there any advice to the courts on whether, when deciding on sentencing, they should take into account whether a man is looking after the children in the family? The Minister will not have it to hand, but I imagine that there is some guidance on that. Perhaps we can look at it at some point.

[Baroness Williams of Trafford]

I am happy to look at that point. Of course, every case is different, so I cannot give a pronouncement here in Committee this afternoon. I have visited Styal prison, an all-female prison near to where I live. I would imagine that Styal is an example of best in class, as it tries to support the family as opposed to just dealing with the woman in custody. I recommend any noble Lords who get the chance to visit that prison, which is an example of a very supportive environment.

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[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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[Lord Deben]

My Lords, I will hold the Committee for only one moment, but I very much agree with the arguments put forward by those who tabled this amendment. It seems that this is another example of saying, “We’ve got to do something, so let’s do this”. But “this” has failed. It does not work and is a disaster. There is no more stupid thing to do than to give young people short prison sentences. Countries throughout Europe have shown that it does not work and that other things do. I really am tired of people coming forward with the same answer to a problem, which does not work. Therefore, I very much hope that my noble friend will say that this Government will not go on with this kind of answer. It will take time, money and resources to make sure that we have something which works, and we should learn from other countries which have found a way through, instead of repeating a failed policy.

[The Earl of Listowel]

My Lords, I would like to follow what the noble Lord has said. We have seen what works in this country. Indeed, a Conservative Government set up the intermediate treatment centres. I think the noble Lord, Lord Elton, very much led this work 30 years ago. I worked in one of those centres at that time. There was a male social worker and a female teacher, so the children and young people saw a model of a man and a woman in co-operation together, being courteous and respectful towards one another. There were six boys, ranging from eight to 15. The eldest was mad about motorbikes and was just about to get on a mechanics course. I saw these boys sitting down together sewing, with the teacher’s help. If you make the right kind of intervention, you can really turn these young people’s lives around. To put this in historical context, perhaps I may take my hat off to the coalition Government, as we have reduced the number of children and young people in prison in this country by 71% over the last seven or so years.

We have been through this process before. I remember that about 10 or 15 years ago, there was an outcry about mobile phone theft and various pushes to be tough on crime and tough on the causes of crime, but really being tough on crime was putting more and more young people in custody. What did we see there? A boy who had just entered care, on his first or second day in a children’s home, was with a group of children and one of them stole a mobile phone. He ended up in court and there were no suitable places for him in custody, so he was placed in an insecure prison and ended up hanging himself within two days. His mother has been grieving for him ever since. As a trustee of a mental health service for adolescents, I know that adolescents become more and more interested in their peer group. So when you send a child off to one of our young offender institutions or secure training centres, you send them into a peer group where they will get the best information about how to join a gang or be destructive.

On some occasions it may be necessary to do that, if they are too dangerous. But leave it to the judges and magistrates to decide that; do not tie their hands. I know there will be exceptions, but I suggest to your Lordships that we do not want to tie the judiciary’s hands in this case, and having mandatory sentencing is not helpful.

I have been a trustee of the Michael Sieff Foundation, which was set up around the time of the Children Act 1989. I had the privilege of working for several years with Dr Eileen Vizard, a forensic child psychiatrist who worked with the NSPCC. She made the point that, once the criminal justice system gets children into the secure estate, they are likely to keep on coming back, and so we should try not to get them in there.

I share the conviction of all the noble Lords who have spoken in Committee today. I hope that the Minister can give us some comfort in his response.

[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.