Domestic Abuse Bill

Debate between Lord Kennedy of Southwark and Lord Marks of Henley-on-Thames

Committee stage & Committee: 5th sitting (Hansard) & Committee: 5th sitting (Hansard): House of Lords
Monday 8th February 2021 Lords Chamber

[Lord Kennedy of Southwark (Lab Co-op)]

I was going to make the same suggestion as my noble friend Lord Hunt of Kings Heath, who made the point that this is an important issue that runs across departments. As he said, I am not sure that this is the right Bill in which to address it, but equally, I am concerned that there may not be a right vehicle at the moment. We have to find some way of dealing with this issue, which has been raised across the House. We have potentially dangerous people treating very vulnerable people and thus only making the situation worse. We should not allow that to happen and we must find a way of dealing with it.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, I am grateful to all who have spoken in this important and fascinating debate about some terrible behaviour. As the noble and learned Lord, Lord Garnier, explained, the principle of this amendment has a long history of parliamentary support. It would rightly criminalise quack counsellors, who, as all have said, suborn vulnerable young people and exploit their weaknesses, in a way that amounts to a classic demonstration of how clearly abusive coercive and controlling behaviour is.

Anonymity (Arrested Persons) Bill [HL]

Debate between Lord Kennedy of Southwark and Lord Marks of Henley-on-Thames

2nd reading (Hansard): House of Lords
Friday 1st March 2019 Lords Chamber

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, with his Private Member’s Bill the noble Lord, Lord Paddick, brings before the House a very important issue that has in recent years come much more to the forefront of public debate.

The experiences of those accused but not charged of sexual offences, or charged but subsequently acquitted, has exposed the intensity of media scrutiny for alleged sexual offences. That leads to damage to private lives, reputations and the very important right to be presumed innocent, which we should all cherish. Complainants in sexual offence cases are, as we have heard, assured of lifetime anonymity. There is no protection available to defendants. As noble Lords will know, the principle of anonymity in sexual offences was introduced in the Heilbron report of 1975, which proposed lifetime anonymity for complainants.

We have talked in this debate about the many cases of public figures, from various different walks of life, being under intense public scrutiny. The damage and devastation that can be caused to private life by media scrutiny has been starkly set out. We have heard of prominent cases, including those of Sir Cliff Richard and Paul Gambaccini, but, as we have also heard, this is an issue for those not in the public eye—ordinary citizens who find themselves accused of certain matters. We should all be concerned that, if people are accused, they should be thought of as innocent until proven guilty. However, I very much accept the point that unfortunately, weeks, months and years later, people will say, “That’s the person who did this”. People see it in the media and they just believe it.

I also recognise, however, that publishing a defendant’s identity, and the response to it, has encouraged victims to come forward in some cases. I think I am right to suggest that people came forward in the cases of Stuart Hall and Rolf Harris, which, in the end, enabled those two men to be brought to justice for their crimes.

Noble Lords may not remember but there was also the SNP MSP Bill Walker, who was convicted of domestic abuse. He was elected to the Scottish Parliament in 2011, convicted in 2013, went to prison and had to resign his seat. Again, as a result of the initial publicity, many other people came forward. I think his first wife told the court that she had to wear concealer to cover a black eye on their wedding day. It was appalling. When one person came forward in that case, so did a number of other women with whom he had been involved, so it was important.

If these cases did not receive a lot of publicity, that would not happen. Publicity causes other victims to come forward. Noble Lords have mentioned the Worboys case. I think 85 victims came forward when his identity became known. Again, that was very important—the scale of the man’s crimes was brought into perspective.

Even when someone is not officially publicly identified, there is now the whole issue of the internet. It is a kind of Wild West, and we have often debated how we will control it. I know that the Government’s White Paper on internet safety is coming out shortly, but it is a huge issue. Even when things cannot be reported, stories fly around the internet, and how we will deal with that is an issue.

I have concerns, however, about how information is released. I mentioned Cliff Richard previously. I think I am right in recalling that there was a BBC helicopter flying outside his house. That is totally outrageous. Somebody somewhere—I assume from the police—told the BBC, “We’re going to raid this celebrity’s house and you might want to come along”, and the BBC said, “This is so big that we’ll get a helicopter up there”. That is totally unacceptable.

There are issues that we need to reflect on further, including how this should be handled in the future. Some publicity is useful, as I outlined earlier, but these matters need to be handled properly. The noble Lord, Lord Paddick, mentioned the College of Policing guidelines. He will know them much better than I do, but it is a question of the police—these are operational matters—and the media acting responsibly. Clearly that has not always been the case, so these things should be properly codified and agreed.

[Lord Marks of Henley-on-Thames]

The noble Lord talked about the Cliff Richard case and he is right: it was a BBC helicopter. As we have heard, Cliff Richard was able to bring a case, at great expense, and he secured an award. However, even with that course of action, does one not feel that many people now have at the back of their minds the idea that there is something wrong about Cliff Richard? His reputation has suffered even though he was able to bring proceedings. The vast majority of people do not have the opportunity to bring proceedings. It is all very well to say that the press should behave responsibly—of course the media should behave responsibly. But does the noble Lord not agree that there is no way of codifying that without us in Parliament doing it for them?

[Lord Kennedy of Southwark]

I was going to come on to that point. Essentially, my next point is that I agree entirely that unfortunately, in the court of public opinion, people’s reputations are often trashed and damaged. That is one reason why it is so regrettable that we will not move on to the second phase of the Leveson inquiry, which was going to look at some of the issues here. The Government have decided that they do not want to do that. I accept the point that people can be damaged very much by these issues.

In conclusion, I assume that because of where we are in the parliamentary cycle, the Bill will not make much more progress. However, it has highlighted an important issue: the situation is not right at the present time. I cannot see the Bill progressing much further, but I hope the Minister will be able to respond to the general points raised in the debate.

Criminal Justice and Courts Bill

Debate between Lord Kennedy of Southwark and Lord Marks of Henley-on-Thames

Wednesday 22nd October 2014 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, in Committee I moved an amendment suggesting that the duty to dismiss personal injury claims tainted by fundamental dishonesty should be a discretionary power rather than a duty. In other words, courts should be entitled to dismiss such claims, but not bound to do so. I also suggested that there should be a power to reduce such claims in appropriate cases rather than to dismiss them altogether, which is a view that I have long held.

I recognise now, as I recognised then, that the Government are concerned to tackle the challenge posed by the proliferation of thoroughly dishonest, largely small, personal injury claims following accidents, particularly motor accidents. I agree that this is a serious problem that needs to be met head on. I was particularly impressed in Committee by the speech of my noble friend Lord Hunt of Wirral on the issue. He speaks of course with a wealth of experience of cases in this area and of the challenges faced by the insurance industry in dealing with them. He spoke then of the evil of the proliferation of whiplash claims. I agree with his Amendment 128 today that any claim included in a personal injury claim should be caught by the section. In answer to the point made by the noble and learned Lord, Lord Hope, I say the section as amended by my amendments—because the problem at the moment is that the whole claim has to be dismissed. That is one of the problems that is addressed by my amendments.

I have in this case modified my amendment substantially for Report in the light of the debate in Committee. My Amendment 128B draws a sharp distinction between smaller claims and more substantial ones. I recognise that the problem that the Government seek to address—the multiplication of fundamentally dishonest claims—arises mostly in the case of smaller claims. My new amendment today would effectively maintain the Government’s position in respect of any claim worth less than £25,000 overall.

However, I maintain my concerns in respect of more substantial personal injury claims. I have conducted over the years a great many claims in this category and I refer to my interest in the register as a practising barrister in this regard. Unfortunately, many of these substantial claims are also tainted by fundamental dishonesty. In Committee I gave the example, hypothetical but not untypical, of a very substantial claim for damages for personal injuries following a serious accident. Out of a total claim value of about £6 million, one element—or head of claim—was a claim for loss of earnings of about £500,000. That head of claim was fundamentally dishonest, because the claimant had suppressed a notice of redundancy given to him before the accident so that the substantial loss of earnings claimed would in fact have been sustained had the accident not occurred. It was therefore, of course, irrecoverable from the defendant.

Nevertheless, the claimant had a valid care claim—a different head of claim, untainted by dishonesty, to take the point of the noble and learned Lord, Lord Hope—worth about £4 million. That claim would have covered the cost of his full-time residential care, with carers, for the rest of his life. The nub of this point is that he himself would not suffer injustice if his whole care claim was dismissed because his care would be paid for by the state in any event. The exception in the clause covering the case—that the claimant would suffer substantial injustice—would therefore not bite.

However, it would certainly be wrong for his entire claim to be dismissed. The right course would be to reduce his claim. Obviously, his loss of earnings claim would be dismissed because that would fail in any event, but the court might also decide to reduce other elements of his damages as well—notably his personal award, which is not tied to specific loss, for general damages, pain, suffering and loss of amenity—to mark the dishonesty. However, without the discretion to reduce the claim instead of dismissing it altogether, the outcome would be that the entire claim would be dismissed—all its heads—and in this example that would cost the state a great deal of money that the negligent defender’s insurers ought to be paying.

I suggest that the clear way to resolve this difficulty is for there to be a power in larger cases either to dismiss a claim tainted by fundamental dishonesty or to reduce the award of damages in such a way as the court deems just. Judges have plenty of experience in dealing with dishonest claims. They can tell what is fundamental dishonesty and what is not, and they can tell what is just and what is not. As one might expect, judges generally dislike dishonest claims intensely and can be trusted to deal with them with appropriate toughness. I invite the Government to agree that mandating courts to dismiss small claims, unless to do so would cause the claimant substantial injustice, but leaving judges free to deal appropriately with larger cases, would be a sensible and proportionate way to approach this issue.

I hope that my noble friend might return at Third Reading, after considering this issue along the lines that I have mentioned, with a solution. I should say that I will not press Amendment 128F in respect of subsection (5), because a combination of the amendment in the name of the noble Lord, Lord Faulks, and the amendment moved by my noble friend Lord Hunt would meet the requirements of orders to cost. That said, I invite my noble friend and the Government to consider this further.

[Lord Kennedy of Southwark (Lab)]

My Lords, the noble Lord, Lord Hunt of Wirral, raised some very important issues, and mentioned claims management companies. Since I came to the House I have raised the issue many times; the more dubious end of the industry is a problem. I know that he mentioned it before, but the claims management regulation unit at the MoJ, run by Mr Kevin Roussell, does a good job on that. I pay tribute to the work that it does and say to the Government that if it had a few more resources it would be able to do an even better job. Pointless, vexatious claims waste our time and cost us money, and the more help we can give to that unit at the MoJ, the better.

Criminal Justice and Courts Bill

Debate between Lord Kennedy of Southwark and Lord Marks of Henley-on-Thames

Monday 14th July 2014 Lords Chamber

[Lord Kennedy of Southwark]

Could the Minister reflect on the comments that he made earlier? I am sure that we will come back to this on Report. He talked about exceptional circumstances and the noble Lord, Lord Marks, talked about the public interest, but we need a bit more information rather than just saying that these are operational decisions. We may be poles apart here, or it may be nothing at all, but I want to test that further. Perhaps we can come back to that on Report.

[Lord Marks of Henley-on-Thames]

I suspect that the noble Lord, Lord Kennedy, has hit on the heart of this. I agree with my noble friend the Minister that it might have been sensible to deal in this group of amendments with Amendment 25 and the subject of the level of police officers. Perhaps, left as it is, we will deal with it later.

I suspect that my noble friend’s answer has not dealt with the gap that may exist between a prosecution that a prosecutor takes the view is not in the public interest and a case in which there are no exceptional circumstances, so that a caution is not available. My suggestion to the Committee is that there ought to be a choice between a prosecution on the one hand and a caution on the other. My noble friend has not dealt with the case whereby a prosecution is not in the public interest and a caution is not available under this clause because exceptional circumstances are not satisfied.

The other suggestion that I invite my noble friend to consider before Report is whether the test of exceptional circumstances, which the noble Lord, Lord Kennedy, mentioned, and which is dealt with in a number of cases relating to different statutes, is not simply too harsh, and that “contrary to the public interest” or “inappropriate prosecution” is a better test. But with those observations and knowing that my noble friend will consider it, I beg leave to withdraw the amendment.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, as I suggested a moment ago, this amendment deals with matters that we dealt with in the previous group. It would omit the provision that it is,

“for a police officer not below a rank specified by order … to determine … whether there are exceptional circumstances for the purposes of”,

Clause 15. Therefore, the amendment really goes with the amendments that remove the requirement for there to be exceptional circumstances. It also goes with the view that I expressed in introducing the previous group of amendments—that it really ought not to be simply for the police to determine a question such as whether there are exceptional circumstances to justify prosecution, therefore meaning that there would not be a prosecution but there would be a caution. It ought to be the prosecutor who takes both decisions.

I shall speak also to Amendment 26, on which Amendment 27 is consequential, merely removing the passage providing for the affirmative resolution. Amendment 26 would remove subsection (7) which provides:

“The Secretary of State may by order amend this section so as to provide for a different period for the purposes of subsection (4)(b)”.

Subsection (4)(b) simply sets out a two-year period, which is the period within which a previous offence must have been committed. I fail to see how later experience will help the Secretary of State or anyone else determine whether two years is the right period. Given the experience of the criminal courts, the Committee knows whether repetition within two years is right. Experience is unlikely to change that because there is no doubt that an arbitrary period has been selected as in more cases than not it will be judged to be about right. In some cases, an offence committed three years ago ought not to be disregarded; in other cases, an offence committed a year ago ought to be disregarded. I simply do not understand why we should need an order-making power to change that two-year period.

[Lord Kennedy of Southwark]

My Lords, as I said on the previous group of amendments, we support this clause and the intention to oppose its standing part of the Bill is just a device to enable a debate to take place.

These amendments in the name of the noble Lord, Lord Marks, would remove the power of a police officer to determine whether there are exceptional circumstances under which an individual can be cautioned, and would also remove the power of the Secretary of State to change the period of time from the current two years which can be taken into account and counted as a previous conviction. It is important to provide a police officer with the ability to make this determination. I was pleased to hear the comment about a senior police officer being involved. The proposal to remove a power of the Secretary of State in this regard is not one that we are persuaded to support. However, I hope that the noble Lord, Lord Ahmad, will explain the intention behind these powers and the government process for determining whether they should be used. What parliamentary process will be used? It is important that there is adequate opportunity for robust challenge and scrutiny of what the Government are doing. I have no other remarks to add on cautions other than to say that there is concern about their use for indictable offences. We support the intention behind the clause.