Police, Crime, Sentencing and Courts Bill

Debate between Lord Judge and Lord Paddick

Lords Hansard - part one & Committee stage
Wednesday 27th October 2021 Lords Chamber

[Lord Judge (CB)]

My Lords, perhaps we should leave the reorganisation of the police to another occasion. The first attraction of Amendment 55 is its utter simplicity and simple, clear language. You have no idea how anybody who has had to spend a lifetime looking at criminal justice legislation greets with acclaim a simple piece of legislation, which this is. There is no misunderstanding about it. It does what it says on the tin. Nobody can reconstruct it afterwards or say Parliament had a different intention—it is there.

More importantly, the argument is irrefutable. I had prepared quite a long speech to make today—long by my standards—but I will not make it. We have heard the arguments. This is a special, national problem—full stop. The best solution to a special, national problem is for it to be dealt with nationally. I therefore support this amendment.

[Lord Paddick (LD)]

My Lords, first, I have absolutely no doubt about the Minister’s commitment to dealing with the sorts of offences we are talking about today, particularly violence against women and girls. I also have absolutely no doubt about the Government’s commitment to tackling those issues. This makes the Bill even more puzzling. We support all the amendments in this group, but I want to look at this from a slightly different angle.

This group of amendments is intended to ensure that certain categories of crime are always included in the serious violence duty. It raises the wider issue of what this whole chapter of the Bill is about. Crime and disorder partnerships—noble Lords will know from previous debates that I am quite keen on these—have for many years been responsible for a multiagency approach to preventing and tackling crime and disorder in their areas, including serious violence. They have the advantage of being able to assess what local needs are and prioritise the crime and disorder that is a particular problem in their areas.

In light of these well-established existing partnerships, one must ask why there is a need for an additional serious violence duty. There has been much concern about knife crime in recent years and Scotland has demonstrated how successful a public health approach to the problem can be, where police enforcement is just part of a multiagency, multipronged approach to tackling knife crime. There may be characteristics of the knife crime problem in Scotland and solutions tailored to tackle them there that may not be completely transferrable to other parts of the UK, but the general principle is sound: law enforcement is only one of many approaches that need to be brought to bear on a problem.

If the Government were focusing solely on this type of serious violence, one could understand, in the face of the growing public concern, that a public health approach to knife crime might be mandated—but that is not what the Bill says. However, there are clues in other parts of the Bill that that is what the Government were initially thinking. For example, we will shortly come on to offensive weapon homicide reviews and serious violence prevention orders, which are all about knife crime.

The Bill talks about serious violence generally, including threats of serious violence but excluding terrorism. It goes on to talk—in Clause 12(4)—about a list of factors that must be taken into account, such as: the maximum penalty that a court could impose; the impact on the victim; the prevalence of the violence in the area, and the impact on the community. Presumably, other factors could be considered when the local area is considering its own serious violence. This effectively makes any violence serious—for example, hate crime. Hate crime should be considered serious violence because, by definition, it has a serious impact on the victim.

Amendment 55, from the noble Baroness, Lady Bertin, says that domestic abuse, domestic homicides and sexual offences should always be included in the serious violence duty. As the noble Lord, Lord Polak, said, how can any of these offences not be considered serious violence? If the Government do not accept this amendment, can the Minister say what types of domestic abuse, domestic murder or sexual offence are not serious, or in what areas they are not far too prevalent? Amendment 56 also includes stalking, for the reasons that my noble friend Lady Brinton so powerfully argued.

Amendment 57, from the noble Lord, Lord Brooke of Alverthorpe, includes all violence that results in emergency hospital treatment, or GBH—for very good reasons. As I mentioned in discussion on an earlier group, as the noble Lord did just now, the Cardiff model—that of sharing depersonalised accident and emergency information on knife and gun crime with the police—has proved invaluable. Furthermore, as the definition of serious violence includes threats of serious violence, my noble friend Lady Hamwee is quite right to point out that social media and other electronic communication—the impact of which may go beyond the geographic area for which the authorities that have a serious violence duty have responsibility—require a duty that goes beyond a single area.

In defining serious violence in such a wide way, the Government must either accept that all violence has the potential to be serious, or risk being accused of saying that violence associated with hate crime, violence against women and girls, domestic violence, and almost any other form of violence, is not serious, or should not be treated as serious in every police area.

What the Government should have done, and what they should do now, is go back and look at crime and disorder partnerships, which are already established and responsible for preventing and tackling all forms of crime and disorder—as their consultation on this issue said they should. They should look at where crime and disorder partnerships need to be strengthened —whether, perhaps, to include partners not currently involved—or where legislation needs to be changed to facilitate co-operation and the exchange of information, instead of mandating others to provide information to the police to enable a police-led enforcement approach to tackling serious violence—whatever that means. Of course, we will support all the amendments in this group for as long as the Government continue with such a broad definition of serious violence.

Offensive Weapons Bill

Debate between Lord Judge and Lord Paddick

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 30th January 2019 Grand Committee

[Lord Paddick (LD)]

In moving Amendment 40A in my name and that of my noble friend Lady Hamwee, I shall also speak to the other amendments in the group.

Amendment 40A is simply about the wording of the legislation, somewhat contrary to the Member’s explanatory statement. The other amendments are similar to those in our debate on Monday. Amendment 40A questions the way in which proposed new subsection (3) of new Section 141B is worded. It currently states:

“The seller is not to be regarded as having proved that they took all reasonable precautions and exercised all due diligence to avoid the commission of the offence unless, as a minimum, they prove that the following conditions are met”.


Surely it would be better to say that the seller is to be regarded as having taken all reasonable precautions and exercised all due diligence to avoid the commission of an offence if, as a minimum, they prove that the following conditions are met. That is effectively putting it positively rather than negatively.

Amendments 42A, 43F, 57B and 57C again turn the offences of delivering a bladed article to residential premises and delivery of bladed articles to persons under 18 from those for which there is an offence if charged into offences where, if the accused has taken all reasonable precautions and exercised all due diligence to avoid committing the offence, they do not commit an offence. We debated this way of legislating at our last sitting. In criminal law, there are two elements—actus reus and mens rea: the guilty act and the guilty mind. The offences in this Bill are completely without any examination of the mens rea until after someone has been arrested, detained and potentially charged. As this legislation is drafted, only after arrest and charge is it necessary to consider the mens rea; it is a defence for a person charged with an offence to prove that they took all reasonable precautions and exercised all due diligence to avoid the commission of an offence. As the noble and learned Lord, Lord Judge, said on Monday,

“we should stick to the normal principles that have worked well for us: you are not guilty of anything and have not committed an offence unless your mental state was simultaneously as criminal as the actions you committed … This way of legislating for criminal justice is inappropriate and we should avoid it. We should certainly be very careful not to allow it to happen without us spotting it and stopping it”.—[Official Report, 28/1/19; GC 153.]

My Lords, we spotted it and we are trying to stop it. I beg to move.

[Lord Judge (CB)]

My Lords, I agree—particularly with the last observation made by the noble Lord, Lord Paddick.

Offensive Weapons Bill

Debate between Lord Judge and Lord Paddick

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

[Lord Paddick]

My Lords, when the police are told that the offence is not committed if somebody has a reasonable excuse, the clear message sent to them is that they need to investigate the matter there and then to establish whether that reasonable excuse exists. If a Bill, as in this case, says that somebody who carries a corrosive substance in a public place commits an offence, it sends a message to the police that investigation of any reasonable excuse that the person may have can wait until later because, according to the legislation, the defence is available only once the person has been charged.

[Lord Judge (CB)]

My Lords, I support the Bill. The issue of the misuse of corrosive substances and all other kinds of offensive weapons is too obviously something that has to be addressed. However, I want to raise an issue which is troublesome in the context of the amendment.

Unless an offence is absolute—and we take a strong stand against absolute offences—it is a long-standing principle of criminal justice that you are liable to conviction and sentence, or to go back earlier, to be arrested and charged if you have done something or acted in a way prohibited by the law. Fine—but the proviso to that is, “Provided that simultaneously your state of mind was itself similarly criminal”. You may have done it intentionally or recklessly. There are all sorts of ways in which your state of mind can be identified as criminal but it is of the essence that these two concepts stand or fall together.

This statute asserts that, where certain facts are proved, you have committed an offence—full stop. Without reference to your state of mind or any other circumstance, the offence is established and you are therefore liable to be arrested. It then says, “We shall graciously allow that, in certain circumstances, you may have a defence”, and if you prove them you would have a defence. Perhaps the most gracious of all the circumstances is to be found in Clause 2(6) to (9), where a whole series of them have to be established. You then have a defence, but you have been arrested and may have been charged. Nobody has to examine these two concepts together and say, “The evidence shows that he had a guilty mind”, or “He was reckless”, or whatever it might be.

What I really want to raise in Committee is that we should stick to the normal principles that have worked well for us: you are not guilty of anything and have not committed an offence unless your mental state was simultaneously as criminal as the actions you committed. That is what we believe. I do not want to be overportentous; I cannot see the Minister making any concessions about this. However, I would like to put down a marker. This way of legislating for criminal justice is inappropriate and we should avoid it. We should certainly be very careful not to allow it to happen without us spotting it and stopping it.

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[Lord Paddick]

If I could assist the Committee at this stage, these amendments relate to the offences of selling and delivering to young people, not to the possession of corrosive substances by young people. We are talking about sending the owner of the corner shop or the Amazon delivery man to prison for delivering these substances into the hands of people who are under 18. I want to ensure that noble Lords are aware that that is what we are talking about in this group of amendments.

[Lord Judge]

My Lords, I am grateful to the noble Lord, Lord Paddick. Views have been expressed here which I respect but do not share. The seller will be, or is likely to be, an adult, and certainly will not be a vulnerable child. The purchaser, or the person to whom the product is sold, may be a very young child. It may be a 17 year-old who lives in an area where there is an awful lot of violence and who has a bad record which is known to the seller. We have to be careful. I am implacably opposed to minimum terms—we may come to that at some stage—because minimum terms do not do justice. However, a person who sells to a vulnerable child, or to somebody who leads a gang or who has been given a community sentence first time round, with a condition that he is prohibited from selling corrosive products but continues to do so, merits a prison sentence as punishment. Prison is not just about rehabilitation. Short sentences do not do much good; indeed, the evidence suggests that some of them do a lot of harm. However, some short sentences do some good because they punish the offender. Therefore, I cannot support these amendments.

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[Lord Judge]

We are devising a system which will impose considerable burdens on sellers. The arguments in favour of this amendment are absolutely obvious. May I make a completely separate point, though? The amendment is brilliant legislation too, unlike the rest of the Bill. Here we have a clear statement of what act you have committed—obstructing the seller—and simultaneously the state of mind you are in: you are acting intentionally. Intention to obstruct is a perfectly clear, simple piece of legislation that anybody could understand. There is an argument that there are various ways those who work in shops can be protected, against violence and so on, but this is very limited in what it is seeking to address: obstructing somebody. In these circumstances, when the burden is so heavy on the seller, they ought to be protected.

[Lord Paddick]

My Lord, if I may have a second go, until very recently I did not support particular protections for shop workers. Being from a policing background, I know we have taken the steps in the law to protect law enforcers, and recently there has been a Bill to protect all emergency workers in this way. But here we are talking about people who are intent on violence; they are looking to get their hands on knives or corrosive substances to commit violence. That is the sort of person that these shop workers are likely to confront, and that is why I am now convinced that this is the right thing to do.

Counter-Terrorism and Border Security Bill

Debate between Lord Judge and Lord Paddick

Report: 1st sitting: House of Lords
Monday 3rd December 2018 Lords Chamber

[Lord Paddick]

I am grateful for the noble Lord’s intervention but, as I say, I am not going to address that point now but in the next group. However, we feel that it is necessary for one or other of these amendments to be adopted. Therefore, if the noble Baroness, Lady Jones, decides to divide the House, we will support her.

[Lord Judge (CB)]

My Lords, I cannot agree with everybody. The noble Lord, Lord Harris, made the crucial point that both these provisions have to be read together. This is a single policy decision. We have talked about 13 year-old boys but let us try a different example: the ANC when Mr Nelson Mandela, one of the heroic figures of the last century, was a member of that organisation. Undoubtedly it did, and was minded to, use what we would all call terrorism in the cause of defeating apartheid. There is no problem about arresting him. I consider it perfectly possible for an individual to say, “I entirely agree with the aims of the ANC—the idea that a man or woman should be distinguished against because of the colour of his or her skin is simply unacceptable. But I disagree with using bombs to achieve that objective”. They would therefore, using perfectly ordinary English language, not be supporting the ANC. But in saying, “I find that its objectives are entirely admirable and I agree with them”, they would be supportive of it. The distinction between these two words is rather significant and merits consideration. I respectfully suggest that we should go to either “supports” and “reckless”, or “supportive of” and “intent”. Either way, those alternatives would have identified a significant piece of conduct which ought to be criminalised.

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[Lord Paddick]

My Lords, I agree with both noble Lords. The amendment seems to be common sense. As the noble Lord, Lord Anderson of Ipswich, said, while Section 118(2) places the burden of proof on the prosecution to disprove the reasonable excuse, you have to hunt pretty far to find it. Currently it does appear, if one takes an ordinary, common-sense meaning from what the legislation says, that the burden is actually reversed.

[Lord Judge]

My Lords, Section 118 got somewhat lost in the discussions earlier. I support this amendment but I wonder whether, when the Minister comes to reflect on it, we would need the words,

“the court or jury shall assume that”.

It is a straightforward point of drafting but, with respect to the matter, “the defence is satisfied unless” would seem adequately to cover the amendment.

Counter-Terrorism and Border Security Bill

Debate between Lord Judge and Lord Paddick

Committee: 1st sitting (Hansard): House of Lords
Monday 29th October 2018 Lords Chamber

[Lord Judge (CB)]

I suspect that the discussion about journalism and journalists focuses the Committee’s attention on these provisions. I share the views expressed in the House that there should be no special position for journalists. When they exercise their rights to freedom of expression they are simply exercising our rights to that freedom and to looking at other people’s expression. Does the current provision in the Bill run a serious—or any—risk that a genuine, bona fide journalist, examining the issues without any criminal intent at all, may be caught? If so, the provisions need to be re-examined; if not, not.

[Lord Paddick (LD)]

My Lords, I am reminded of the words of the noble Lord, Lord King of Bridgwater, at Second Reading. He said that the provisions of the Bill must be “necessary” and “proportionate” but that we may not agree on what that means. The debate so far has reflected that.

I support all but one of the amendments in this group. I apologise to the noble Earl, Lord Attlee, for having some reservations about his amendment. Amendment 1 in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark, highlights the fact that this offence should be part of a pattern of behaviour—and not a single instance that could well be inadvertent, as the noble Lord, Lord Harris of Haringey, has just suggested.

4.30 pm

Amendment 2 in the name of the noble Baroness, Lady Jones of Moulsecoomb, necessarily tightens up the very loose term “is supportive of” by substituting “supports”. I am grateful to Liberty for its briefings on this group of amendments, on which I intend, in part, to rely. As my noble friend Lady Hamwee has explained, and as the Joint Committee on Human Rights concluded in 2006:

“Speech does not naturally reside in the realm of criminality. This is why the element of intention should always be attached to speech offences”.


A reference has already been made—by the noble Baroness, Lady Jones of Moulsecoomb, for example—to the Court of Appeal case R v Choudary and Rahman, which concluded that,

“the criminality … lies in inviting support”.

It continued that,

“the expression of views and opinions, no matter how offensive”,

should not be criminalised,

“but only the knowing invitation of support from others for the proscribed organisation”,

as this would otherwise amount to interference with Article 10 of the European Convention on Human Rights, which provides the right to freedom of expression.

As my noble friend Lady Hamwee has said on Amendment 3, to which I have added my name, this amendment restores what we consider to be the vital element of knowingly encouraging support for a proscribed organisation by inserting an intention to encourage support. Amendment 4, in the name of the noble Baroness, Lady Jones, has a similar effect.

Amendment 5, in the names of my noble friend Lady Hamwee and the noble Earl, Lord Attlee, to which I have added my name, provides an exception where a person is arguing that an organisation should not be proscribed. We have just heard from the noble Lord, Lord Anderson of Ipswich, that there are currently proscribed organisations that should not be proscribed. The noble Lord seeks to bring forward an amendment that he has already referred to, later in the Bill, to ensure that proscription decisions are regularly and proactively reviewed. It cannot be right that the noble Lord—or the noble Lord, Lord Hylton, or anybody else—should be committing an offence if they argue that an organisation is wrongly proscribed.

As I have suggested, I am slightly nervous about Amendment 6 in the name of the noble Earl, Lord Attlee, and the noble Lords, Lord Rosser and Lord Kennedy. I can see their objective, but claiming that an opinion or belief was published or broadcast for the purposes of journalism could allow those deliberately expressing or encouraging support for a proscribed organisation to claim this exemption.

This clause criminalises expression of opinion or belief, contrary to the fundamental human right of free expression, despite what the noble Lord, Lord Carlile of Berriew, has said. The existing offence, under Section 12 of the Terrorism Act, is comprehensive. It covers somebody who invites any kind of support for a proscribed organisation, or arranges, or assists in arranging, a meeting in support of a proscribed organisation, or a meeting addressed by someone who belongs to, or says they belong to, a proscribed organisation.

I appreciate that the Government want to be seen to be taking further action, and I accept what the former independent reviewers of terrorism legislation have said about the gap in the legislation. But I believe that this section strays beyond a necessary and proportionate interference with freedom of speech, even where balancing the public’s right to life. I therefore agree with my noble friend Lady Hamwee that Clause 1 should not stand part of the Bill.

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[Lord Judge]

My Lords, I respectfully introduce a note of caution about Amendments 15 and 16. We are dealing with the creation or amplification of criminal offences. The issuing of guidance by the Secretary of State in legislation of this kind would be very unusual and it would not, in the end, add certainty to the situation. Guidance has no statutory force, and someone looking at guidance might nevertheless find himself being prosecuted. Alternatively, someone who could not bring themselves within guidance might be prosecuted.

The real point is this: guidance may be helpful but if it is not statutory, it has no legal effect. If we wish to introduce issues here, we should do as my noble friend Lord Anderson does in the next clause, where he seeks to define, in primary legislation, a number of situations in which an offence is not committed.

My final point—I find this extremely alarming—is the idea that a Secretary of State, using executive powers, should issue guidance about how the law should be implemented. Either the law is clear or it is not, and guidance does not make it any clearer. Such a measure would—I think probably for the first time in criminal justice legislation—give an enormous power to the Secretary of State to say, without any parliamentary control, “This may not come within the ambit of the offence but that may”, and so on. That should not happen.

[Lord Paddick]

My Lords, I support the amendments in this group, although I have some reservations about all of them now that the noble and learned Lord, Lord Judge, has spoken. However, I have concerns about Amendment 14, in the names of the noble Lords, Lord Rosser and Lord Kennedy of Southwark, for the reasons I have expressed in previous groups about having a blanket exemption for journalism and academic research. A terrorist could access information with the intention of committing a terrorist act but could claim that it was for the purposes of journalism or academic research. Surely the acid test should be the intention of that person, not the content of the material.

I have added my name to Amendment 15, in the names of my noble friend Lady Hamwee and the noble Baroness, Lady Lawrence of Clarendon, although I accept what was said by the noble and learned Lord, Lord Judge, with his wisdom and legal background. Obviously the intention of the amendments is to suggest that the law is not clear here about what would amount to a reasonable excuse. Perhaps the mechanism suggested in the amendments is not the right one, and, as the noble and learned Lord, Lord Judge, has alluded to, maybe the approach outlined in amendments that we will consider shortly is the right one. However, there is concern about what would amount to a reasonable excuse under this clause.

Investigatory Powers (Codes of Practice and Miscellaneous Amendments) Order 2018

Debate between Lord Judge and Lord Paddick

Wednesday 18th July 2018 Grand Committee

[Lord Judge (CB)]

My Lords, until last August, I was for two years the Chief Surveillance Commissioner—an office that no longer exists under the current legislation. I will echo one or two, but not all, of the points that have been made so far. If I may say so, I thought that the Explanatory Memorandum for this proposal in relation to juveniles was thoroughly inadequate and, if it had been adequate, would have said a good deal to allay the concerns that have been expressed today. I did not think that the letter from the Minister allayed those concerns—it did not address them, it seemed to me.

There is in fact an extremely careful system for supervising, organising and taking responsibility for all CHIS. There are very few juvenile CHIS, for all the reasons that have been given; I do not think the figures have been kept, but I can say this. What may not be apparent to many people in the Committee today is that each police force is examined and inspected by independent inspectors, answerable to a judicial figure, and the inspections cover every form of intrusive investigation that has gone on and all issues relating to the use of covert human intelligence. I can say from my own experience—it is not a state secret—that in relation to any CHIS activity involving juveniles, the inspectors pay particular attention to see that the issues of welfare and so on have been properly addressed. All this could have been explained and made available to the Secondary Legislation Scrutiny Committee, which would then have formed whatever view it thought appropriate.

There is, however—I could go on for some time about this—one point that needs consideration if the Government, decide to follow the suggestion made by the noble Lord, Lord Haskel. Within the surveillance process, in relation to authorisation for intrusive surveillance, such an order, however made—even by the chief constable himself or herself—does not take effect until it has been approved by a judicial commissioner and when the notice of that decision has been given to the person who granted the authorisation. It might just be worth giving some thought to using that particular additional safeguard when we are considering the rare occasions when a juvenile CHIS is being used.

[Lord Paddick (LD)]

My Lords, I thank the Minister for explaining these orders, and other noble Lords for their contributions. There are some issues around the Investigatory Powers (Codes of Practice and Miscellaneous Amendments) Order 2018 that I would like clarification on before we get on to the major issue of the use of juvenile covert human intelligence sources. I therefore ask the Committee for a few moments to deal with those other issues.

I understand that this instrument brings into force the three revised codes of practice regarding the functions carried out under RIPA 2000, and that these need to be updated, not least because of the Investigatory Powers Act 2016 and the additional safeguards it introduced. One of the phrases in the Explanatory Memorandum—changes to “cover current practice”—is a little worrying, as it stands. I hope the Minister can reassure the Committee that the codes of practice have not been altered simply because law enforcement and intelligence agencies have changed how they do things. Surely the codes of practice are there to ensure compliance with government-defined best practice, not the other way around.

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[Lord Judge]

If you have to have a review every month, why do you not conduct a renewal? What is the difference between the review and the renewal in those circumstances? That is the heart of it.

[Lord Paddick]

Perhaps I can assist. The handler decides that the CHIS needs to be in a gang for three months. The handler will know that, under the current system, at the end of each month, for three months, they will have to go back to the commander or assistant chief constable to renew the authorisation. What is the problem with that system that is overcome by the changes being suggested?