Anti-social Behaviour, Crime and Policing Bill

Earl of Lytton Excerpts

Tuesday 29th October 2013 Lords Chamber

[The Earl of Lytton (CB)]

My Lords, speaking so late in the batting order enables me to cross out a large number of things that I would otherwise have said, which will be to the benefit of your Lordships.

I acknowledge that the Bill, so eloquently introduced by the Minister, contains many good and useful measures. As he knows, I am something of a crime statistic sceptic. I shall not dwell on that, although he introduced that point in his introduction to the Bill. Suffice to say that at least the matter is now being looked at by the Public Administration Select Committee, and it is fair to leave matters there for the time being.

Some of the proposals I particularly welcome—on the trade in illegal firearms, the question of sexual harm and violence, and forced marriage are commendable. I will not touch on extradition—that is well above my pay grade—and I shall steer clear of dogs for the time being. I acknowledge the issue and tragedy of appalling behaviour that blights lives and, in terms of my profession, affects property values and utility. It distresses people and persecutes them. More particularly, from the point of view of public resource, it causes disproportionate costs to social landlords, the police and others, and is a burden on the public purse. We have to deal with it, but the question is whether the means are proportionate. Bypassing the legal safeguards, as appears to be apparent in Part 1 of the Bill, is rarely the appropriate way forward. That has been mentioned by many other noble Lords.

As I say, I come to this from a property angle. I am often involved in neighbour disputes. One thing to realise is that it has nothing to do with the property; it has to do with lifestyle, dogs, noisy children, music, and maybe with race or colour, and things like that. These are the things that feed into some of the loose legislation that we already have, and in that context I think of the Protection from Harassment Act. I was recently sent some correspondence highlighting just how variable the approach to enforcing that Act is. Indeed, the test for what constitutes harassment is so loose and undemanding of proof that it almost seems to be a fibbers’ charter. That probably explains why it is so often the case that with the benefit of hindsight the person claiming to be harassed turns out to be the primary perpetrator. I cannot tell noble Lords the number of occasions when I have felt that that was the situation, so definitions are vital.

In this Bill we risk falling into the same trap. I acknowledge the huge problems caused by anti-social activity but we have to have plausible, possible and legally proper procedures. I am not a lawyer so all my information on this is totally second hand. The Bill has the potential to make a difficult situation worse. It has the novel invention of making what used to be, or certainly as I understood it, the last resort equitable civil remedy of an injunction the first resort coercive measure or tool of behavioural compliance, if you please. Forgetting for one moment the legal test for something that is also tied in with criminal sanctions ultimately and with criminal activities, under this Bill one has to consider the lower civil standard of legal proof. Putting to one side the legal practicality, precedent and social propriety of attaching an injunction to a minor, Part 1 of this Bill promises to do something that it cannot in practice achieve. I would have much preferred to see some alteration to the ASBO regime. If ASBOs are considered to be substantially inoperative, why should anyone imagine that what we have here will cut any more mustard with the typical offender? That escapes me.

Under this Bill an injunction can be obtained with no cross undertaking on costs or for damages, losing the greatest single safeguard against abuse. I wonder why we should suddenly make this a free bet for the enforcer against the person accused—accused, I might add, on some of the flimsiest evidence you could possibly come across. It will generate numerous appeals and be a burden on public expenditure.

Part 2 continues with this approach. Even those found guilty by the courts are entitled to fair dealings and due process. So how does a fair and objective assessment on what has,

“caused or was likely to cause harassment, alarm or distress”,

operate and what is the convicted person to deduce from the application of such an open-ended and loose definition? That society is going to treat him fairly? Hardly. Or that he should mend his ways? Maybe. The right reverend Prelate the Bishop of Lichfield touched on this point. I can recommend a solution: introduce proper triggers, tests and defences into this Bill, identifying the nature of the act based on fact and not hearsay, supposition or mere irrational fear and let us not try to muddle up the criminal and the civil evidential test.

I now turn to Part 3. Clause 32(2) seems equally lacking in substance on its trigger provision. The bottom line is that an officer needs only to be satisfied on reasonable grounds that there is likelihood of someone being alarmed or distressed. No wonder all sorts of fair-minded and sober types such as the Open Spaces Society and, dare I say it, the naturists, have been on to me, concerned that it might be used against them. In fact, it could be used against a wide variety of people engaged in quite straightforward activities. Part 4 is no better. It rests on a concept of undefined detrimental effect. The process seems to be based on strict liability and the authority implementing it seems to have complete non-recourse powers.

I will touch on Part 11 briefly. This is nearly my final point. In March I raised matters to do with crime figures, policing and the concept of police accountability. That is the pivotal point. It seems to be the nub of what has happened since, what has been through the press and what we have heard about evidence before the Home Affairs Select Committee and so on. That cannot go unuttered in the context of this Bill. Accountability rests on several key principles. First, there will be a completely independent referral body over which there is no police influence. The noble Baroness, Lady Doocey, mentioned aspects of that. Secondly, there will be a power to recommend and insist on adoption of recommendations. Thirdly, when there has been a failure, even without criminality or malfeasance—which are actionable anyway—there will be consequences and sanctions so that the public have confidence in what is being done in their name. At the moment, none of the checks and balances we have match that template.

As I see it, the current regime is weak, although to be fair to the Minister, it is a great deal better than it was three years ago and I acknowledge some of the great strides that have been taken and the courage with which they have been pursued. However, we cannot be at all complacent.

My final point is a question. Two weekends ago, one of the Sunday papers put forward the suggestion that many civil actions taken against the police for poor performance or injustice of one sort or another have been settled out of court with the details never divulged. Of course this cuts both ways: is it people taking a free-bet pop at the police or are the police at fault? We do not really know. I am sure some of them must be worked on a no-win, no-fee legal principle. Can the Minister inform the House, or perhaps write to me, of what the numbers are by category in the period since May 2010, and whether he has any view, or can obtain any figures, on what the cost is to the public purse? As I say, the police should not be subject to free pot-shots, but also the citizenry need to know where they stand. It is important that transparency informs what we do and what we debate in this House.

Police: Performance Indicator Management

Earl of Lytton Excerpts

Tuesday 19th March 2013 Grand Committee

Asked By

[The Earl of Lytton]

To ask Her Majesty’s Government what is their assessment of the response of United Kingdom police forces to performance indicator management with particular reference to the reliability of published United Kingdom crime figures.

[The Earl of Lytton]

My Lords, I am very grateful for the opportunity to debate this issue and to those noble Lords who have added their names to speak. My interest in policing is a parliamentary one; the police interest in me, I hope, is no more than my firearms and shotgun licences. However, were it not for the work of the late Lord Corbett of Castle Vale, to whom I pay tribute, I doubt if I would be speaking on this subject today.

We have heard a great deal about the police recently but I would not wish to appear anti-police. I am certain that the vast majority of serving officers are diligent and honest. Rather, my Question is about the organisational environment in which they operate. Many corporations use performance management but the public service often lacks suitable external benchmarks. Dr Barry Loveday, professor of criminal studies at the University of Portsmouth, in a 2008 article in Policing magazine, described performance management as,

“commitment not to an organisational vision but to conformity in both running and delivering services … The primary emphasis here is directed to the effective management of targets rather than on qualities of leadership”.

He goes on to say,

“‘Gaming’ techniques now characterise the operation of most public service managers … the primary purpose is not … to demonstrate leadership … but to ensure conformity to the target culture by ‘managing’ such data in order to reach targets set”.

However, it is also the collectivisation of risk, anonymity, abrogation of individual responsibility and denial of leadership. The police are not alone; large parts of the public sector, especially in areas of health and education, are affected. Under the Police Reform Act 2002, the Secretary of State sets National Policing Plan objectives and priorities but there is no benchmark equivalent to the hospital standardised mortality ratio.

“Gaming” is academic speak for numerical, definitional or behavioural means of presenting figures to suit outcomes and its use in police recording of crime is the specialist research subject of Dr Rodger Patrick, a former detective chief inspector in the West Midlands force. I have seen his doctoral thesis, his evidence to parliamentary committees, noted the coherence of his analysis and the absence of contradiction by others. His referees testified to his credibility. I therefore invited him to address interested Peers last month and have placed in the Library my note of his talk with its links to further information.

He identified four categories of “Gaming”. There is “cuffing”, so called after the magician’s act of making things disappear up the sleeve; in other words, making crime figures disappear altogether by, for instance, not recording some types at all. In “nodding” figures are enhanced, notably by getting offenders to admit by a nod to other offences to be taken into consideration, or TICs. “Stitching” is coercing suspects to confess to guilt under threats or perhaps promises of more lenient treatment. “Skewing” involves applying resources solely to whatever targets are being measured to the exclusion of others; it is the principle of “what does not get measured does not matter”.

Such issues were brought to the attention of HM Inspector of Constabulary as long ago as 1998, but little if anything has altered since. In its 1999 report, HMIC repeats the police viewpoint that:

“Any bending of the rules is ... seen as ... not being for personal gain but to protect society, and therefore not at the worst end of corruption”.

It rejected this justification but recognised the problem.

Dr Patrick has attempted to quantify the effects of gaming. His conclusion that it is an endemic organisational phenomenon rather than the activities of a few officers makes for uncomfortable reading. The Office for National Statistics thought that cuffing alone might cause a 16% underrecording of crime; Dr Patrick considers that it is likely to be far higher. The truth is that we do not know and the change from an evidential to a prima facie basis of crime recording further confuses the issue.

Unsurprisingly, last January’s ONS national crime survey was received with disbelief by criminologists and it was subsequently admitted that the recorded figures might be defective. But the ONS relies on police figures and the appearance of a decline in crime fits the purposes of many others. Did Her Majesty’s Inspectorate of Constabulary advise Home Office officials about the extent of a problem going back many years? If so, why has so little changed? Can we be sure that the figures form an adequate basis for analysis? If they are not founded on fact, truth and logic, how can Ministers and Parliament rely on them? Furthermore, what is the role of Home Office officials and statisticians in the oversight of police recorded crime, given the ONS admission? Is it true that cross-checks on police recording, formerly part of the British Crime Survey process, have been discontinued, and if so, why? If the figures are in doubt, what else may be in question?

The list of high profile cases reads like a roll call: Hillsborough; North Wales care homes; the Bradford sex trade; the theft of child identities; the retention of body parts without consent and falsification of evidence; the sale of confidential information to the media; and the cases of Michael Atherton, Andrew Mitchell, Jimmy Savile and Lynette White. All identify procedural, evidential and investigative failure and have attracted public criticism. In the Daily Telegraph of 22 December last year, Andrew Gilligan pointed to seven police forces where sackings, forced resignations, suspensions and criminal investigations of chief constables had occurred, with almost as many more deputies and assistants under a cloud. He put the level of “infection”, if I can call it that, at 20% of police forces. I am hoping that other Lords will pick up on the issue of informal cautions, local criminal records and non-sanction detections. I would simply ask Her Majesty’s Government: what data do police hold on people and what independent oversight exists? Have things improved since 2007 when the matter was raised with the Information Commissioner?

Even if the position has been exaggerated, it adds up to a very disturbing picture with significant implications for the taxpayer, national policy, the maintenance of law and order and, last but not least, public confidence. On regulation and oversight, I note that the Home Affairs Select Committee recently described the Independent Police Complaints Commission as,

“woefully underequipped and hamstrung in achieving its original objectives. It has neither the powers nor the resources that it needs to get to the truth when the integrity of the police is in doubt”.

While the Home Secretary moved with what I can only describe as commendable speed to strengthen the commission, I must question whether she went far enough to address all the issues.

As to HMIC, its report of a review into allegations about intelligence concerning the Jimmy Savile case highlighted failings in the quality of investigations and sharing of information. However, it has repeatedly expressed concerns on similar matters since the late 1990s. What is this? Is it a resource issue? In July 2011, it was asked to review police integrity. Can the Minister tell us where that review has got to? I believe it is too early to expect the police and crime commissioners to have taken significant action, but I hope they will be reading this debate carefully and that these matters do indeed lie within their remit. We learnt only last week of some close relationships between health service employees and allied business and procurement services that might be a conflict of interest. Are the Government satisfied that this is not also a factor in the police?

I now refer to the Association of Chief Police Officers. It is more than just the senior policeman’s trade association and, until recently anyway, has been in receipt of substantial public funding. It makes strategic policing decisions, guides policy and issues procedural guidance. It is immensely influential on police force co-ordination and in international crime. In some respects its work is akin to that of a government agency and its relationship with government should be open. Even now, as its direct funding is reduced, I learn that it is asking police forces for a large increase in its subscriptions. But this is still taxpayers’ money and requires full accountability.

I am led to believe that fees for security checks and the like end up in an ACPO unit or subsidiary, that there are several operating under its umbrella and that significant sums of money are involved. I am also told of persistent resistance to Freedom of Information Act requests. It is time for full disclosure of ACPO’s affairs, its companies, subsidiaries, directorships, accounts and activities—everything that either involves taxpayers’ money or is as a result of a public or quasi-public activity. Can I have the Minister’s assurance that this will be done?

I do not have a problem with commercial activities offsetting costs to the public purse but I take issue with the involuntary merchandising of personal information other than in the clearest overriding public interest. I take exception when the process lacks transparency.

--- Later in debate ---

[The Earl of Lytton]

My Lords, continuing where I left off, I was talking about the commercial activities and how I took some exception to the fact that the process lacks transparency and oversight. I also point to the secretive nature of some of these activities, which suggests something to hide.

Many other issues have come to my attention, including: tow-away, vehicle recovery and storage contracts; insurance industry concerns; and a degree of partiality, particularly as evidenced in the BBC programme “You’ve Been Trumped”, where police simply failed to protect residents from the most serious bullying and harassment by golf course developers.

If the Home Secretary’s statement on police integrity was intended to draw a line in the sand, I hope that the Government realise that nobody is fooled and there is very much more to be done. If the police are not straight with us on the crime figures, how on earth do we know what is going on? Secrecy has no benign purpose here. We need transparency, good professional practice as the norm, compete legality and accurate recording as a basis for policy decisions, and we need it now.