Police, Crime, Sentencing and Courts Bill

Lord Beith Excerpts

Report stage
Wednesday 12th January 2022 Lords Chamber

[Lord Beith (LD)]

My Lords, I agree with all the arguments my noble friend brought forward for having an overall look at sentencing and how it operates, and how that needs to be done at arm’s length from government. I will simply add two questions to the list he created, which the noble and learned Lord just very helpfully added to.

The first question is: can we find a way in which society can assert its abhorrence at various kinds and levels of criminality that does not automatically increase the amount of time people spend in prison, or the amount of money we as a society spend on prison? Sentences are often used as ways of indicating, quite necessarily, that society will not stand for crimes of various kinds, but simply spending a lot of money keeping someone in prison, feeding them for the next decade or two, is not necessarily a cost-effective way to achieve that.

That leads me to my second point. Prison commands resources. It does so automatically. The impact statement for this Bill indicates that the Government anticipate that 300 more prison places will be required by the measures in the Bill, quite apart from all the other factors, leading us to spend more money on prisons. We have to ask: is that a good use of money for the purpose of preventing further crime?

Very interesting discussions took place in the US, particularly in Texas, in which the lead in changing the approach was taken by some of those on the Republican side, who said, “This is the taxpayer’s dollar, and it’s our responsibility to spend it efficiently and effectively.” In our country, it is our responsibility to spend the taxpayer’s pound efficiently and effectively to achieve the reductions in crime that taxpayers would like to see. Pouring money into more and more prison places is not demonstrably a way of achieving that objective, and we ought at least to look at how it might be done differently.

[The Lord Bishop of Gloucester]

My Lords, I fully support the amendment. Sometimes I feel a bit as if I am in “Groundhog Day” as we listen to things that are said again and again. When we first discussed the Bill in this House, many people far more learned than me commented on all the issues with the Bill and the fact that so much of it is piecemeal—that we are trying to put sticking plasters over things without looking at the issues holistically and without looking at evidence. So much of it seems to be a reaction—often to populist headlines, let us be honest. There is so much evidence that we are not looking at, and so much of what we are discussing is not backed up by the evidence.

For that reason, I warmly recommend taking a holistic look at what we are doing, why people end up in prison in the first place, what we are doing when we sentence people, what is going on in our prisons and what it means for when people come out through the gate. As has been said, even if people are utterly callous and care only about finance, what we are doing at the moment makes no financial sense whatsoever. I wholeheartedly applaud this amendment.

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Moved by

[Lord Beith]

106: Clause 46, page 39, line 17, after “sport” insert “, dance, drama, music”
Member’s explanatory statement
This is intended to address a potential gap in the law related to other teaching or supervisory positions/ of trust.

[Lord Beith (LD)]

My Lords, in moving this amendment, I seek to bring music, drama and dance within provisions that the Government have included in the Bill in respect of sport and religion. The Bill takes the Sexual Offences Act 2003 and imports the position of trust of someone who is training in sport or religion into the mechanism of the Sexual Offences Act. That makes the concept of positions of trust apply not simply in institutions such as schools but to individuals carrying out training on a private basis or as part of a community organisation and in any number of other ways.

It has puzzled me from the beginning how the Government have identified sport and religion alone as fields in which abuse can take place—when people who have close personal charge in a training role of a young individual can have undue influence that could be put to the wrong use, as a means of sexual abuse or a route into sexual abuse. I do not know anybody who believes that this problem exists only in the areas of religion and sport and not in other areas where very close contact is involved in training, instruction and development. The Government concede one small part of my amendment by taking the view that dance is already included, which must be true, in the wording of the legislation, if the dance is preparation for “competition or display”. I can imagine that an Irish or Scottish dancing group for which individual training was taking place might well be covered. I am less convinced that professional ballet might be covered; that is an area in which we have seen very serious abuse of people undergoing training by a professional ballet instructor.

It is very difficult to understand why the Government have alighted on those two areas alone and not others, because the characteristics of the situation are very similar in all these different areas of activity. There are some distinctive features but so many similar characteristics: being alone with someone quite a lot; a competitive situation in which the person being trained is desperate to be included in the display or team; a desire to please; and the developing of a close personal relationship. They are all elements that we find in a number of other areas, so I wonder what the Government’s argument is.

I have had very helpful discussions with the Minister, who has been generous with his time and his staff’s attention to this matter. However, despite all his efforts, he has not succeeded in convincing me that the Government have a logical case at all. The argument that the Government resort to is that extending these provisions to music and drama would have the effect of raising the age of consent, so relationships that would not be unlawful at present would become unlawful if we extended them into music and drama. That is a very odd argument because that is precisely what the Government are doing for sport and religion: they say that the danger of predatory sexual activity is so serious that we must protect people aged 16 to 18 from this being done in a training situation, but only if their training is in sport or religion.

I simply do not understand that argument or why, if the Government think it is such a serious objection, they are prepared to do exactly that for sport and religion but not in other areas. If it is because of abuse by sexual predators that such provisions are being considered and provided for those two areas, it makes no sense that these other areas are excluded. However, they can be included subsequently because the Government have given themselves the power by affirmative order in this legislation to add other activities, or indeed to remove either of the two activities currently included.

As I thought about this, I wondered what the circumstances were in which the Government would decide to add one of the areas that I have identified—music teaching or drama teaching—to the condition where people are regarded as having a position of trust when they are engaging in training. What would lead the Government to make that change? It would probably be cases coming to light. Such cases will come to light, because in all these areas we know that, despite many thousands of people conscientiously providing this kind of training, there are those who get into these roles with predatory intent, and others who might be regarded as having done so where perhaps it has arisen more innocently between two relatively young people but in a situation that we cannot simply ignore.

When those cases arise, the question will be asked: why is the perpetrator not being charged as someone in a position of trust would be? The answer will be that the Government decided that we did not need this provision in respect of music or drama, even though we need it for sport and religion. I think future Ministers will find that a very uncomfortable question to deal with from the Dispatch Box when we then point out that cases have arisen that could have been pursued under the kind of provisions that they see as necessary for sport and religion.

The Government are in an illogical position, and their only way out of it is at some point to decide to add other areas to the list. That may come at a time when more bad cases have arisen, and then they will have a difficult case to answer. I invite the Minister to think further about this matter, but for the time being I beg to move.

[Lord Paddick (LD)]

My Lords, as my noble friend Lord Beith explained, the amendment would extend the position of trust to include people who coach, teach, train or instruct on a regular basis in dance, drama and music.

I am sure the Minister will correct me if I am wrong, but I seem to remember him saying in Committee that the Government wanted evidence that these amendments were necessary before they were able to accept them. On 20 October 2021, the Guardian reported that a former ballet teacher and principal dancer at the English National Ballet had been sentenced to nine years in prison for more than a dozen counts of sexual assault against his students—I think that is dance. On 30 September last year the Sun reported that a drama teacher had been convicted of sexually abusing girls as young as 15 over five years, abusing his position of power and targeting teens who wanted to become actresses by sexually assaulting them at the theatre group he had set up in Northamptonshire—I think that is drama. The Edinburgh Evening News reported on 22 December, just last month, that a retired music teacher in Scotland had been sentenced to eight years’ imprisonment for raping and sexually abusing former pupils—I think that is music.

There is the evidence. What is stopping the Government now? We strongly support my noble friend’s amendments.

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We in the department led a review of the law in this area, which did not deal only with abuse in sport and religion, and we engaged with representatives from a wide range of backgrounds and sectors. After that careful review of the law, the Government have concluded that those who teach, train, supervise, instruct or coach in a sport or a religion are particularly influential over a child’s development and should be captured under the position of trust laws. That is what Clause 46 does.

[Lord Beith (LD)]

To clarify, is the noble Lord saying that when the department looked into this matter it discovered more evidence in respect of sport and religion than in other fields, or some specific evidence that made it clear that this was much more likely to occur in sport or religion?

[Lord Wolfson of Tredegar (Con)]

As I say, we discussed this with a wide range of people, and it seemed to us from looking at all the material that sport and religion are the particular areas where law at the moment should intervene. I was coming to this point. The noble Lord presented the amendment saying, “Abuse can take place in other relationships too”, and of course he is absolutely right. However, abuse can take place where there is no relationship at all, and I am afraid it can take place in lots of different relationships. The question here is when the law should intervene to prohibit automatically, regardless of the particular 17 or 19 year-old and whether any abuse is taking place, to prevent any sexual contact. For those reasons, we consider that at the moment, we should intervene—I will come to the delegated power—in sport and religion only. Those settings involve high levels of trust, influence, community recognition, power and authority, and these figures are often well-established, trusted and respected in the community.

The report of the Independent Inquiry into Child Sexual Abuse found that religious organisations

“may have a significant or even dominant influence on the lives of millions of children”

and that

“what marks religious organisations out from other institutions is the explicit purpose they have in teaching right from wrong.”

Also, both sport and religion can provide a young person with a strong sense of belonging, whether in a team, a squad, a community or a faith. Such deep feelings held by the young can provide unique opportunities for predators to exploit or manipulate and can make it more difficult for the young person or concerned relatives to report abuse.

With respect to sport specifically, the physical nature of the activities means that coaches often ostensibly have legitimate reason physically to touch the children and young persons they are coaching. A sports coach will often have opportunities for closer and more prolonged physical contact compared with other roles, and this can be manipulated by abusers. That is why, to respond to the point made by the noble Lord, Lord Pannick, the 18 and a half year-old tennis coach would be prohibited from having a relationship with a 17 and a half year-old tennis student, but the 18 and a half year-old chess coach could have such a relationship —assuming for these purposes that chess is not a sport; I do not need to decide that because it is a physical definition that is in the Act—because there is not that scope, ostensibly, for a physical relationship.

The noble Lord’s amendment addresses dance specifically. Again, let me reassure him that the definition of “sport” in Clause 46 includes types of physical recreation engaged in

“for purposes of competition or display”.

We consider that this includes dance.

On the delegated power for the Secretary of State to amend new Section 22A, we accept that new evidence may emerge that may justify legislating further. Let me reassure the House and put it on record that this power will not be used lightly, but nor will we wait until instances of abuse are brought to our attention. We will proactively monitor data on child sexual abuse to ensure that we have the evidence needed to inform policy and act decisively where required, including evidence relating to the nature of roles and the institutional or organisational context, the level of power and control, other factors which we have seen contribute to abuse including opportunities for extensive unsupervised contact, and any inherent risks posed to young people as well as any data on incidents of concern. We are establishing channels through which partners such as the police, the CPS and local authorities can share emerging evidence and highlight patterns of behaviour.

Some of the behaviour that has been mentioned this evening and in Committee is already covered under other offences within the Sexual Offences Act 2003. Let us be clear: sexual activity with someone under the age of 16 is a crime. Non-consensual sexual activity such as rape is obviously a crime. I certainly heard the word “rape” in at least one example mentioned by the noble Lord, Lord Paddick. We are not talking about that—that is the point—because rape is already a crime. We are talking about sexual activity which would otherwise be lawful and consensual. I did not quite catch all the examples, but one cited was from a newspaper in Scotland where somebody had done something. How old was the person? If they were under 16, it is already caught. Was there consent? If there was not, it is already caught. One has to be careful when one is talking about evidence. We will be proactive in looking for that evidence and, for the avoidance of any doubt, we will of course re-read the examples that he gave us.

I accept that Clause 46 does not represent everybody’s preferred approach, but we believe that, on the material that we have at the moment, our approach strikes the appropriate balance between the protection of young people and the sexual freedoms and rights otherwise granted to 16 and 17 year-olds, while still allowing for rapid responses to emerging patterns of abuse in the future. For those reasons, I respectfully invite the noble Lord to withdraw the amendment.

[Lord Wolfson of Tredegar (Con)]

I am struggling with that second point, but let me try to answer the first. On whether I am saying that anybody should be allowed to exploit a young person, the answer is no. Frankly, I do not understand how the noble Lord has reached that conclusion. There is nothing in the provisions about justifying exploitation or abuse up to the point of rape and assault. Maybe this is the confusion that he is under in relation to the second question. At the moment, if someone is caught in a position of trust—let us say, for example, a minister of religion who is 18 and a half—that person is prevented from having any sexual contact with, say, a 17 and a half year-old congregant. Before that person was ordained or appointed to the position as a minister of religion, that person could have had a sexual relationship with a 17 and a half year-old. That is why I am talking about changing the age of consent, because that 17 and a half year-old is able to sleep with an 18 and a half year-old but not if that 18 and a half year-old is, for example, her minister of religion. I hope that answers the noble Lord’s second question, although I confess I did not quite understand it because, if I may say so, it seemed to proceed from a fundamental misapprehension of what we are talking about.

[Lord Beith (LD)]

My Lords, one thing I want to say in response to the Minister is that, as I said earlier, there are many thousands of people engaged in the training of young people in many contexts, but particularly in some of these fields very close contact and continuous interchange is involved, including activities in which the contact is physical. That applies not just to sport but to teaching someone how to hold their violin and their violin bow; it applies to all sorts of activities. There are spheres too in which the relationship is affected by the authority of the training person, the desire to please that person and to be successful in the activity. The more the Minister described those activities, the more it seemed that what he described happens not just in sport and religion but in many other areas as well.

It is important that we remind society that vast numbers of people are engaged in this kind of training work entirely selflessly and giving great service to young people. They are people we recognise and support. A very small number of people do everybody else so much damage by the kind of abuse referred to in the course of the debate. Unfortunately, we still have to deal with it, which means we have to talk about it, debate it and devise laws that work for that purpose.

I would much have preferred to see a wider clause that used the concept of a position of trust in a series of places in which it is clearly relevant. The Government have preferred to retain power by statutory instrument to make extensions to the list, and the Minister, in response to my request, tried to give a bit more indication of the sort of circumstances involved. He has said that they are not just waiting for cases; they will look to the views and experience of organisations in the field. That could usefully be done. If organisations in any of the fields I have talked about respond to the Government by saying, “Yes, it would help us in our disciplinary and regulatory arrangements if this power was extended”, then I hope that is the kind of information that might lead Ministers to come before the House to make use of those powers. I certainly do not want them to be waiting for cases. I am serious in my concern that some cases will arise where abuse has taken place that otherwise falls within the definitions in this clause but where the position of trust appellation has not been applied because it is in one of the other groups—it is not sport or religion.

This is a serious problem that undermines the wonderful work that so many people do with young people, and the wonderful achievements of those young people in sport, drama, music and the arts. We have to keep it under continuous review but, at this stage, I beg leave to withdraw the amendment.

Amendment 106 withdrawn.

Police, Crime, Sentencing and Courts Bill

Lord Beith Excerpts

Lords Hansard - Part 1 & Lords Hansard - part one & Report stage
Wednesday 15th December 2021 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I rise briefly to support all three of the proposed new clauses, most particularly those proposed by Amendments 79 and 80. Looking back on my time in Parliament—nearly 40 years now—I think this was the most unfortunate decision taken in the criminal system. I pay tribute the noble Lord, Lord Blunkett, for coming to this House and putting before us his proposed new clause. Indeed, I pay tribute to the noble and learned Lord, Lord Brown, for his proposed new clause as well. A huge injustice has been done; as a parliamentarian, I view our contribution to it with a great sense of shame and embarrassment.

At the end of last week, a prisoner wrote to me to tell me that he had a tariff of two years imposed on him and has now served 14 years. I do not know the detail of his case but it is deeply troubling that that happened. In fact, I have referred his letter to the chairman of the Parole Board; I very much hope that she will look into it carefully. I can do no more. However, the truth is that the proposed new clauses before this House give us an opportunity to move forward. My belief is that they do not go anything like far enough, but we have to take the steps that are available.

I hope that my noble friend the Minister will respond sympathetically to the issues raised. I must say, if the opinion of the House is sought on any of these proposed new clauses, I will support them.

[Lord Beith (LD)]

My Lords, I certainly want to hear what the Minister has to say because I will go home very uneasy indeed if I pass up the opportunity for a vote to make it clear that this House rejects the system that has developed into a gross distortion of both our justice system and our sense of values about the circumstances in which someone can be incarcerated and those in which they are entitled to recover their freedom. We cannot tolerate this continuing. There is a hope that the Minister will say things that will enable us to feel that we are making some progress, but some of us will not sleep well tonight if we leave this place without being sure that some progress will be made.

[Baroness Jones of Moulsecoomb (GP)]

My Lords—

Police, Crime, Sentencing and Courts Bill

Lord Beith Excerpts

Lords Hansard - Part 1 & Report stage
Wednesday 8th December 2021 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I cannot speak as eloquently as the speakers we have just heard, but I want to say that this feels so much like law made by press release, and law made to virtue-signal, that I feel incredibly uncomfortable about it.

We want to say to emergency workers that we will protect them if they are at risk, but we know that the emergency worker in this instance, PC Harper, was not the target of the crime; it was not intentional to kill an emergency worker. So I do not see even how this operates as a deterrent, because it is not aimed at people who have put those emergency workers at risk, even though those workers have accidentally been killed in the pursuit of a criminal act that is, I accept, dangerous.

There is an exception, which is that the trial judge can make an alternative sentence in “exceptional circumstances”. But, as has been pointed out, the trial judge can already make an alternative sentence—a full life sentence in some circumstances—so why emphasise it, unless it is a political policy statement? It is not a matter of law; it is a question of saying, “We will be hard”, and it will inevitably lead to great injustice. The fact that 16 and 17 year-olds have been included means that very young people could now have mandatory life sentences for manslaughter, with no discretion, and no discretion encouraged. It is so wrong and brought in for all the wrong reasons.

[Lord Beith (LD)]

My Lords, I share many of the reservations expressed already and the analysis given on both the provision and the circumstances which have led to it. I ask the Minister, in his response to the debate, to deal with one of the points raised by the noble Viscount, which is the discretion that might be available to the judge in deciding what tariff accompanies the sentence, as opposed to the provisions of proposed new subsection (2), which give slightly more power—I refrain from defining it as a wider power—in exceptional circumstances to the judge to impose a different sentence altogether.

One thing the Minister did not cover in his helpful introduction was the extent to which the tariff provisions interact with this. I would be grateful if he could explain that, in case he can give us any reassurance about what seems to be the danger of making general law out of a particular case.

[Lord Pannick (CB)]

My Lords, if I may, I will add a point that follows on from what the noble Lord, Lord Beith, said. To require a life sentence is pure deception because we all know that life sentences are not life sentences, and there is a strong feeling that the life sentence for murder is a deception. Other than in the most exceptional circumstances, the person concerned will be released, and the judge pronounces, in open court, a tariff. I entirely understand why the Government wish to give comfort to the unfortunate relatives and friends of those heroic emergency workers who suffer this appalling treatment and die in service of the country, but it is a gesture—a misleading gesture. We really should not be perpetuating more and more life sentences when the reality is that people receive a term of years.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I am not quite sure what I am being asked to accept, but I do not have any uncertainty as to what “exceptional circumstances” is. It is a phrase used in this legislation; it is used in other legislation; it is a phrase that is well known to the courts. It is a phrase that they are perfectly able to deal with.

[Lord Beith (LD)]

The relevance of IPP sentences to this debate is that, when IPP sentences were introduced, rather similar speeches were made from the Front Bench to the one that the Minister is making tonight. I know his style his different, but the fact remains that it was a disaster and a scandal. It developed in ways in which all those who introduced it did not anticipate, and now concede was wrong, but they had not fully understood at the time what the consequences were. This has all those hallmarks about it.

[Lord Wolfson of Tredegar (Con)]

As I said, I am very alive to the IPP issues, as the noble Lord knows; but the IPP issue and the IPP sentence was a novel sentence which did things that other sentences did not do. Indeed, that is why it was brought in. The shape of this sentence, however, is not novel. It is the application to this particular offence that is new. With the greatest of respect, therefore, I disagree with the comparison to IPP sentences, which were themselves novel.

I hope that I have set out the government position clearly and fairly—

Police, Crime, Sentencing and Courts Bill

Lord Beith Excerpts

Lords Hansard - Part 1 & Committee stage
Monday 15th November 2021 Lords Chamber

[Lord Pannick (CB)]

The noble Lord, Lord Dubs, asked: these amendments are so simple, why waste time debating them? Well, of course, the law already proceeds on the basis that these amendments propose. Section 230 of the Sentencing Code already says that the court must not pass a custodial sentence unless it is of the opinion that the offence was so serious that a fine or community sentence is not sufficient for the offence. Any court that passed a custodial sentence without stating the reasons for doing so would find that the sentence was overturned in the Court of Appeal. Any sentence in court that fails to consider and address the impact of a custodial sentence on a child or unborn child would not be upheld on appeal. So I entirely support these amendments, but I think we should be realistic about the current state of law.

[Lord Beith (LD)]

My Lords, I do not intend to fall into a bit of disagreement with the noble Lord, Lord Pannick, with whom I worked happily in the Constitution Committee, but the present state of the law has not really solved the problem, has it? Very large numbers of very short sentences are given, and the consequence is that prison places are used, costs ensue, and the least effective way of dealing with individuals seems to be the one that is chosen. If there is some way in which we can strengthen the presumption the sentencing guidelines already carry, that would be good. The amendment of the noble Lord, Lord Ponsonby, is a complicated alternative way of doing it, but it does appear that something needs to be done.

The argument often used for short sentences is that courts have a problem in dealing with persistent repeat offenders and persistent repeat breaches of conditions of community sentences. There is a popular myth that if offenders do not respond to other measures, a taste of prison will soon put them right. There is absolutely no evidence to support this principle. Indeed, all the evidence points the other way.

I used to chair the Justice Committee in the House of Commons, and that has had a continuing interest in this problem. Its report in 2018 recommended that the Government introduce a presumption against short prison sentences. The Government welcomed this and said they were exploring options. In a follow-up report, the Justice Committee noted the Government’s stated intentions to move away from short custodial sentences.

Police, Crime, Sentencing and Courts Bill

Lord Beith Excerpts

Lords Hansard - part two & Committee stage
Wednesday 10th November 2021 Lords Chamber

[Lord Wolfson of Tredegar]

I will come in a moment to the word “exceptional” as I think that was the point made by the noble Lord, Lord German. I have been a little diverted on the way, but we will get there.

What the courts will therefore do is to continue to take the child’s welfare needs into consideration. I also point out, of course, that the actual minimum sentence for 16 and 17 year-olds, when given, is shorter than that for over-18s when given: four months as opposed to six months. Applying minimum sentences to 16 and 17 year-olds—the older cohort of under-18s—recognises the increased maturity and development of this age group compared with younger children. Any custodial sentence is given as a last resort, but we believe that for older children who commit these particular offences, it should be mandatory for the court to consider carefully whether a custodial sentence is appropriate.

[Lord Beith (LD)]

I wonder if the Minister could be a little clearer. A moment ago he cited figures for the number of cases under existing law in which, apparently, mandatory sentences are not passed because judges took the circumstances into account. When you couple his description of those figures with the phraseology that he is using now about the merits of the Bill, the impression is very clear that the Government are not happy with the judges citing exceptional circumstances in failing to deliver the kind of sentence that the Bill would impose. Am I right to understand that he is, in fact, critical of the number of exceptions that are made at present and wants fewer of these in future?

[Lord Wolfson of Tredegar (Con)]

I am certainly not critical of any particular sentence passed in any particular case. What I do think the figures show is that we need a test that more clearly balances the minimum sentence on the one hand with the exception on the other. We think the test of exceptional circumstances—I know that the noble Lord, Lord German, is waiting patiently—meets that test.

I turn now to Clause 104 and 105, which both relate to children who have committed murder and will therefore receive the mandatory life sentence of detention at Her Majesty’s pleasure. I hear in this regard the words read to us on behalf of the right reverend Prelate the Bishop of Derby. When giving a life sentence, the judge sets a minimum amount of time that must be spent in custody before the offender may be considered for release by the Parole Board. This is known colloquially as the tariff. Judges use starting points to determine that tariff. They can set a minimum term higher or lower than the starting point by taking into account aggravating or mitigating factors. Currently, there is a 12-year starting point for all children who commit murder.

In this Bill, we are replacing the fixed 12-year starting point for all children—what might be called the mandatory starting point—with a range of starting points that take into account the child’s age at the time of the offence and the seriousness of the murder. The age groups are to reflect the different stages of development that a child goes through and that, although both in law are children, a 10 year-old is very different from a child of 17 years and 10 months. The different levels of murder, if I can put it that way, are based on the more nuanced system used for adults, which takes the seriousness of a murder into consideration. Therefore, the twin factors of age and the seriousness of the murder are then brought together. The higher the age and the more serious the murder, the higher the starting point, and the converse is also the case.

This amendment retains a range of starting points for children based on three age groups, but it does not distinguish between the levels of seriousness of a murder. Because murder can vary in seriousness in the criminal sense, we believe it is right that the starting points should reflect this as well. We do not agree that starting points should only be based on the age of the child; they should also reflect the seriousness of the murder. Moreover, the amendment does not address the gap in starting points between older children and adults. A child of 17 years and 10 months is very close to becoming an adult. The amendment would mean that the same category of murder would have a 12-year starting point for a 17 year-old, but a 30-year starting point for an 18 year-old. However, I underline the same point that I made about minimum sentences. The judiciary will continue to take the individual circumstances of a case into consideration and can give a minimum term higher or lower than any given starting point.

Let me address the review amendments. Children who are sentenced to detention at Her Majesty’s Pleasure are eligible to apply for a review of their minimum term. In this Bill, we are placing the minimum term review process in legislation. It allows children who are aged under 18 when sentenced to detention at Her Majesty’s Pleasure to apply for a minimum term review at the halfway point. We are restricting eligibility for further reviews to be available only to those who still aged under 18 at the time of the further review. By contrast, this amendment would allow those sentenced as an adult to apply for a review at the halfway point and continue to apply every two years. It would also allow adults who were sentenced as children, who have already had one review, to continue to apply for a review every two years. This amendment is neither necessary nor in line with case law. That is because, under the measures in the Bill, children who are sentenced to detention at Her Majesty’s Pleasure will continue to be eligible for a review at the halfway point of their minimum term.

That right has developed through case law. It recognises the unique rights of children and the fact that they develop and mature at a faster rate than adults. The review is an important part of confirming that the minimum term remains appropriate or determining if a reduction should be made. However, they should be eligible for a further review only if they are still a child at the time of that further review. This is because, as the right reverend Prelate the Bishop of Durham said on behalf of the right reverend Prelate the Bishop of Derby, children have the greatest capacity to demonstrate the significant changes to maturity and outlook that the review considers. Therefore, the opportunity for multiple reviews would be available only to younger children at the initial time of offending, as they are more likely to be under the age of 18 at the time of any further review.

Those who commit murder as a child but are sentenced as an adult have already had their age and maturity taken into consideration. Adults who commit murder are not entitled to reviews and so this Bill ensures that all offenders who are an adult at the time of sentencing are treated equally. It is important to remember that we are talking about the most serious offence, that of murder. The minimum term set by the judge takes into consideration a child’s age and maturity at the time of the offence and reflects the seriousness of the offence. That minimum period should therefore be served, except in exceptional circumstances.

That brings me to the question of the definition of exceptional circumstances, and I am grateful to the noble Lord, Lord German, for his patience. “Exceptional circumstances” is a phrase used all over the law and the criminal law. It is a matter that judges are well used to interpreting. It is a phrase in plain English. With the greatest respect to the noble Lord, it does not need, or would benefit from, a gloss from the Dispatch Box. The phrase means what it says on the tin. It is for the individual judge in the individual case, having heard the evidence, to decide whether the exception is made out.

Police, Crime, Sentencing and Courts Bill

Lord Beith Excerpts

Lords Hansard - part one & Committee stage
Wednesday 10th November 2021 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

It was a privilege to add my name to this amendment, which has been so ably moved by the right reverend Prelate the Bishop of Durham, speaking the words of the right reverend Prelate the Bishop of Gloucester. I associate myself with everything that has been said and particularly with the work being done by Revolving Doors and the Centre for Justice Innovation.

This particular amendment raises a problem with this part of the Bill. One can understand why putting in a condition or requirement in relation to the victims might appeal to a certain type of politician, but they forget that, if you are legislating, you need balance. Why put something in about victims without putting something in about the whole point of this, which is to try to deal with offending?

The reason that I put my name to this amendment goes to the way that the Bill has been structured. I apologise again for not being in my place last Wednesday. I am extremely grateful to the noble Lord, Lord Paddick, for moving the amendment that I put in. This point raises exactly the same problem: we have a framework Bill. We do not have the draft regulations or, more importantly, the draft code of practice.

I entirely support this reform, but I do not think that many people realise what a critical role cautions play in the operation of the criminal justice system and, as the noble Lord, Lord Paddick, has said in relation to an earlier amendment—I did not rise then because I thought that I could make the point now—the incredibly important constitutional and rule-of-law issues, which I underline. These relate to the relationship between the legislature, and how much detail it should go into on this, and the Executive—because the police are part of the Executive branch of government—and to what extent they should be allowed to punish, which has generally been the province of the courts.

I welcome these reforms because this is an important part of the sentencing regime—and it is part of it, whatever epithet one wishes to apply. But it seems to me that a much better approach to the Bill would be if this was brought together as a whole, so that we could say, “This bit ought to go into the Bill. That is dealt with in regulations. This should be dealt with in the code of practice”. We should have it all before us, so that we can make a sensible decision. I do not understand why this has not been done, but I hope that, before the Bill comes back on Report, we see draft regulations and a draft code of practice. Otherwise, we will all be plagued on Report with this type of really serious concern.

There are many more issues—the noble Lord, Lord Paddick, has raised some of them this morning—such as the point that the Minister made very eloquently this morning about being able to alter levels of fines. Of course, in an age where we are perhaps going to see a lot of inflation, that is important, but why alter the number of hours? The gravity of the sentence with which a particular person should deal ought to be fixed.

Therefore, I hope that the Minister will look at, first, putting this amendment into the Bill and, much more seriously and importantly, at bringing the draft code of practice and the draft regulations, so that we could review the whole thing and do a proper job, as Parliament, consistent with the rule of law.

[Lord Beith (LD)]

My Lords, I am very glad to support the right reverend Prelate and the noble and learned Lord who has just spoken. The right reverend Prelate gave us a very careful analysis of the reasons that such an amendment would improve Clause 88 of the Bill, and the noble and learned Lord, the former Lord Chief Justice, reminded us of the constitutional context and the fact that the way that the Bill is structured, and the sheer complexity of it, are not really very satisfactory, especially when so much related material is not available to us at this stage. I hope that note will be taken of what he said on that latter point.

My feeling was that, as drafted, Clause 88 does not cover the ground properly, and that the inclusion of the requirement in this amendment—that consideration should be given to what provisions can be made for the “offender to desist” from crime in the future—would give the clause a necessary balance; a phrase that the noble and learned Lord used. The clause’s emphasis is very much on finding the victim’s views, which is entirely appropriate but limited in scope.

It is of course relevant to remember that, very often, one of the strongest views that victims have is that no one else should have to suffer what they have and that something should be done to make sure that the person who has done it does not do anything like that again and cause that sort of harm in the future. So these two things are not in opposition to each other: it is a complementary requirement for the clause to include a direct reference to measures to try to make it possible for the individual to desist from crime. There is a wide range of measures, but, in the context of this clause, the right reverend Prelate mentioned drugs and drug treatment. Of course, alcohol is also a very significant factor in many of the sorts of crimes that we are talking about.

This brings back memories of an incident that occurred during my time in the House of Commons, when some teenagers pulled down and stole the union flag from outside my office. They then made the mistake of exhibiting it around the pubs of the town, which led to the police catching them pretty quickly. The sergeant rang me up and said, “I do not really want to issue a formal caution because one of them wants to go into the Army, and that may prevent him doing so. I suggest that they club together, pay for its replacement and all write to you to apologise”. That was the kind of practical policing that, nowadays, is so surrounded by rules and requirements that it is often more difficult to do. But it was the right solution. I had some delightful letters, most of them insisting that their families had always voted for me. But it made a sufficient impact on the individuals—it was just a minor thing—making them less likely to commit crimes in the future. That is the emphasis that we need to add into this clause—an emphasis on trying to ensure that that individual commits no further crimes in the future.

[Lord Framlingham (Con)]

My Lords, I am not as well versed in these matters as many noble Lords are, but, in the interest of clarity, could the Minister explain what a “diversionary caution” is?

Police, Crime, Sentencing and Courts Bill

Lord Beith Excerpts

Lords Hansard - part one & Committee stage
Monday 8th November 2021 Lords Chamber

[Lord Thomas of Gresford (LD)]

Gross negligence, yes—although it is interesting that the word “gross” is put before it. But these are different offences, and it may be that I should confine my criticism to the road traffic situation and not extend it as a general principle of English law.

[Lord Beith (LD)]

My Lords, there have been some powerful contributions to this debate. I agree with the comments that the noble and learned Lord, Lord Hope, and my noble friends have made.

It is perhaps necessary that we should say in the debate that there are members of the public whose families have been drastically affected by serious injury resulting from careless driving who feel that there should be a stronger penalty, and that the particular circumstances in the accident with which they are familiar justify a stronger penalty. This is the simple point I want to make: the territory that we enter here is of believing that prison is the only way that society can say, “We are not going to put up with this. This is very bad. Drivers should drive better, and people should be aware of the dangers that they engage in if their concentration lapses.” Prison is probably one of the least effective ways of dealing with the individuals that we are talking about.

As my noble friend Lady Randerson pointed out, the effects of these accidents—or rather incidents, following the noble Baroness, Lady Jones—which result in serious injury are devastating for all those involved. However, the Government need to resist the constant temptation to believe that spending a lot of money on sending people to a place that will not improve their driving—or indeed anything—but is likely to lead to despair and reduce their ability to contribute to society in years to come is a sensible course of action. They should recognise that this is a misuse of the expensive, although important, resource of custody.

[Lord Berkeley (Lab)]

My Lords, can I just ask the noble Lord, Lord Thomas, why he thinks that an offence in the transport sector might be different from the Health and Safety at Work etc. Act? Is it because transport is a middle-class crime and health and safety is not, on the whole, or is there something different?

Police, Crime, Sentencing and Courts Bill

Lord Beith Excerpts

Lords Hansard - part one & Committee stage
Monday 1st November 2021 Lords Chamber

Moved by

[Lord Beith]

111: Clause 45, page 37, line 39, after “sport” insert “, dance, drama, music”
Member’s explanatory statement
This is a probing amendment to explore whether there is a potential gap in the law related to other teaching or supervisory positions of trust.

[Lord Beith (LD)]

My Lords, in moving Amendment 111 I will speak to the related Amendment 112. Here, we are being asked to amend the Sexual Offences Act 2003 to import some definitions into it. This presents some problems, to my way of thinking. We are dealing with “Positions of trust” and people who abuse those positions, using them to abuse, exploit or manipulate young people to consent to sex. The clauses before us in this Bill refer to someone who

“coaches, teaches, trains, supervises … on a regular basis, in a sport or a religion”.

That immediately prompts the question: why are other activities involving coaching or training on a close one-to-one basis not listed in the way that sport and religion are?

--- Later in debate ---

[Lord Wolfson of Tredegar (Con)]

With great respect, the point put to me by the noble Lord, Lord Paddick, shows that if we draw this too widely, we are limiting the ability of a 16 or 17 year-old to have a sexual relationship with that person. This the balance that we want to strike. At the moment, there is nothing to prevent a 17 year-old having a consensual relationship with a person with whom they have a tuition relationship or other kind of relationship. The question is: where do you draw the line? We say the line should be drawn at sport and religion. If you draw it too widely, you impact on that person’s ability to have a sexual relationship with other adults.

[Lord Beith (LD)]

My Lords, I start by answering one of the Minister’s questions: what would constitute evidence? The answer is: the same kind of evidence that was sufficiently persuasive for the Government to include sport and religion in this definition. I would expect it to be on exactly that level, bearing in mind the context, the professional relationship and how it operated.

I start where I agree with the Minister. We are not seeking to change the age of consent in this legislation; it would be the wrong place to attempt such a thing, even if there were strong arguments for doing so. What should determine the position that the law provides in this area should not be the selection of certain sports because there appears to be more or less numerical evidence of abuse; nor should it be an attempt to import some new age of consent; it should be on the same basis, whichever area of activity we are talking about.

The Minister said something very interesting which will cause us to reflect between now and Report. He said that, in the Government’s view, dance—or ballet, at any rate—is included. There is a compelling argument for that, which is one of the reasons I was inspired to put down this amendment in the first place. This is a very physical activity during which people who are themselves very skilled at it have to explain—and sometimes demonstrate or assist those they are teaching—some quite extraordinarily physical things. That is done by hundreds and thousands of ballet teachers, and has been for many years, with total propriety, but it is a context in which abuse can occur. In that respect, as the Minister obviously realised, it resembles the kind of definition he brought to bear for sport.

I agree also that there is a balance between, on the one hand, defining a position of responsibility and placing responsibilities and limitations on someone who has such a position, and, on the other, interfering with the rights of 16 and 17 year-olds who have reached the age of consent. My noble friend Lord Paddick highlighted the difficulties in achieving that balance when he pointed out that we would hardly welcome a situation in which it was generally accepted as okay for someone in that kind of professional relationship to continue a sexual relationship when attention was drawn to it. We would mostly expect the professional person to believe that they had to end the relationship, even if it were entirely consensual.

Police, Crime, Sentencing and Courts Bill

Lord Beith Excerpts

Committee stage & Lords Hansard part one
Wednesday 20th October 2021 Lords Chamber

[Lord Bach (Lab)]

My Lords, of course we want to change attitudes and that is what we must try to do, however long it takes us, but I have to say, from my experience over five years as a police and crime commissioner—I am sorry to keep on about this—this wrong seems to have increased on a fairly enormous scale. That is only anecdotal, but the truth is that many more of those who are about to be arrested seem to think that it is okay to have a go at the police in order not to get arrested. That seems to me to be very unfortunate, and it is going to take a long time before it changes. It puts the police, and obviously other emergency workers, in a nearly impossible position sometimes—and when I talk about the police, I am really referring to other emergency workers as well.

Like the noble Lord, Lord Paddick, I do not want to see higher sentences for the sake of higher sentences, and I do think that their effect is often very limited, but I have to say—it seems odd, coming from these Benches, I suppose—that I have a certain sympathy with the Government here, because it seems to me that the position has to be dealt with immediately in some way, and one of the purposes of raising the maximum sentence available is to try, in the best possible way, to convince the courts that this is a more serious offence than sometimes they think it is. It is not always minor, I am afraid—sometimes it is undercharged—but it is a really serious problem that every emergency worker, and in particular every police officer, faces every time he or she makes an arrest, and I do not blame the Government for wanting to do something about it.

I am not saying it will be very successful; I think it is a much wider societal problem. But I do think it is something the Government are entitled to at least think about in this way. I do not say that with any happiness at all, but to claim that it is not a real problem is just untrue: it is a real, everyday problem.

[Lord Beith (LD)]

My Lords, I entirely accept that this is a real problem, but real problems require real solutions that have some chance of being effective. I cannot imagine anyone who commits an assault on a police officer or emergency worker actually knowing what the maximum sentence is for that offence—still less that the Government are currently increasing it. That information might just get through to the newspapers for a week or two, but there is no measurable deterrent effect from something that people do not know much about anyway. Most people must realise that if they get caught assaulting an emergency worker they will get into some kind of trouble, but whatever impels these dreadful assaults is clearly not likely to be affected by what is happening here.

What happens when you increase the maximum sentence? If you achieve generally longer sentences, you have made a commitment of resources. The question has reasonably to be asked: is this the best way of spending money to try to stop emergency workers being attacked? We must therefore look at any other measures that you can reasonably take that would have that effect, if, as I contend, there is no evidence that increasing the maximum sentence will lead to any reduction in attacks on emergency workers or police officers.

This is just one of many examples, and there are others that we will perhaps debate more fully later in the Bill, where the Government rush to have something to say—lengthening the maximum sentence certainly looks like having something to say—but it does not have the effect in the real world that we all desire.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I am a bit too squeamish to discuss Amendment 9 but I wanted to reflect on Amendments 10 and 11 and to follow on from some of the comments just made about the deterrence factor and expanding how long people are threatened with jail for.

I thought the Bar Council raised some very useful challenges for us to consider in relation to the section of the Bill dealing with assaults on emergency workers. The Bar Council asks us to consider if increasing the maximum penalty for such assaults is necessary or commensurate or whether it will work. It notes the limited evidence. I thought when I was listening to the noble Lord, Lord Paddick, who I was very compellingly convinced by, that it can feel a bit like virtue signalling rather than tackling the problem.

I was particularly interested in a slightly different point from the one that has been made and was struck by what the Bar Council said in relation to, I think, these amendments: there is a danger of creating a disparity between the penalties for attacks on emergency workers and those on other workers, and indeed a disparity between attacks on emergency workers and those on members of the public. There is an offence of common assault that should be considered a serious offence whoever is on the receiving end of it. Whoever is attacked, I would want the law to deal with it.

We heard from the right reverend Prelate how, if you start saying that an attack on this particular group of workers has to have a particular length of sentence, that might make other groups of workers—in this instance, in prisons—feel as though they are being neglected or somehow are not as important. We therefore have to be nervous about differentiating between categories of workers because that might end up being divisive, implying that front-line workers in some jobs are more important than others.

As a former teacher who has worked in the education sector—I worked with some challenging young people and was on the receiving end of some common assault, let us put it that way—I have been following closely the case of Professor Kathleen Stock, a feminist philosophy academic at Sussex University, whom the police have advised should not return to her place of work on campus because of the danger of violence from some self-styled anti-TERF activists. There have been all sorts of threats and harassment. They even have a special phone number for her to ring. There are other teachers who face this.

I raise that because when it comes to this kind of threat, that kind of potential violence and those kinds of assaults, it does not matter if you are a front-line worker. I do not know why the “emergency” bit should give you an extra penalty. I am not advocating for a special penalty for attacks on education workers. I just do not want people on the front line to feel that some are more important than others.

Queen’s Speech

Lord Beith Excerpts

Tuesday 18th May 2021 Lords Chamber

[Lord Beith (LD)]

I congratulate the noble Baroness, Lady Fullbrook, and the many distinguished speakers in this debate who fastened on the Government’s words that legislation will be introduced to restore the balance of power between the Executive, the legislature and the courts.

Try as I may, I cannot find anything in the gracious Speech which restores the balance by correcting or reducing the ever-growing power of the Executive. I can find plenty of examples of the opposite, in both legislation and policy. It is all about strengthening the already overmighty Executive. In four minutes, I shall try to give four examples.

First, there is judicial review, reviewed in an excellent report by the committee chaired very ably and knowledgeably by the noble Lord, Lord Faulks, which the Government clearly intended should come up with severe curtailment of judicial review. It did not. In a courteous letter to me, the Lord Chancellor rather gave the game away. Having commended the committee for its empirical evidence, he said, “However, we feel that the analysis in the report supports consideration of additional policy options to more fully address the issues they identified.” In other words, “We’re from the Government and we are here to help you by protecting you, the judiciary, from yourselves and ensuring that you don’t do any more protecting of the people.”

In all their arguments on this, the Government fail to recognise that in a system where the Government so often control the Commons with a large majority, it is particularly important that the courts can insist on adherence to the law and, when rights are threatened, to see that there has been proper decision-making, and that what is proposed or done is clearly and explicitly within the intentions set out by Parliament.

The second example is the sentencing legislation that began in the previous Session. It gives the Home Secretary power to extend a prison sentence indefinitely on the basis of matters which have not been tested in court, subject only to whether the prisoner can prove a negative to the Parole Board—that he is not dangerous and did not commit offences for which he has never been tried. Serious issues of public safety are involved—I recognise that—but I do not see that we can leave the Bill in its present form without crossing a boundary between the role of the Executive and the role of the judiciary.

Thirdly, the Prime Minister is appointing lots of new Peers. This is not an attack on the noble Baroness whose maiden speech we heard earlier, but the overall effect of what the Prime Minister is doing is to block the means by which this House has agreed, voluntarily, to reduce its own size. I was a member of the group which advocated for the proposals. Failure to tackle the growing size of an unelected House undermines the reputation that the good work of so many Peers would otherwise earn. I think the Government like having a second Chamber whose legitimacy they can easily challenge, rather than a reformed House, which would be more widely seen as an appropriate body to hold the Executive to account.

My fourth example is in today’s other area: culture. I declare an interest as being involved in a number of heritage charities that have benefited, or need help to survive, from the recovery fund. I am worried by all the briefings from DDCMS that board-level appointments in national cultural institutions need to be the subject of closer ministerial attention to ensure that various areas and views are better represented. As a northerner—you cannot live further north in England than I do—I might welcome that, but not if it becomes more use of ministerial patronage to enforce politicians’ prejudices on highly valued institutions of precious national importance or just another version of patronage and jobs for the boys.

Ministers like power, and invariably want more of it. Legislating by decree and press conference during the Covid-19 crisis has given them even more of a taste for it. Our job is to do our best to restore the balance by defending the rule of law and restoring and deepening parliamentary accountability.