Community Sentences (Justice and Home Affairs Committee Report)

Lord Macdonald of River Glaven Excerpts

Friday 26th July 2024 Lords Chamber

[Lord Macdonald of River Glaven (CB)]

My Lords, I hope your Lordships will bear with me as I speak during the gap. I am aware that such contributions are meant to be kept short, so I will speak relatively briefly. I do not need to mention my interest, because it has already been referred to by the noble Baroness, Lady Ludford.

I congratulate the committee on its report, which is absolutely excellent: it is rigorous and well-argued, and a very good piece of work. For my part, I agree with its conclusions and recommendations. I thought the Ministry of Justice’s response was careful and constructive, and also a very good piece of work. That said, I agree with the noble Baroness, Lady Hamwee, that the Government ought now to treat this as a springboard, rather than the final word, and to build on that response, because there is progress that can be made.

I will make a couple of points. I was delighted when, on Wednesday—I cannot remember whether it was during questions on the Lord Chancellor’s Statement or during the King’s Speech debate—the Minister went out of his way to remark upon the great attachment to public service of those working within the probation service. I was delighted, because my experience running the CPS taught me that there is nothing more destructive to the morale of a workforce than to be constantly criticised and abused—in the press and, sometimes, even by members of the Government, as I am afraid we have seen in the past. This drains enthusiasm and demotivates; it sucks the lifeblood out of a workforce.

I was interested to hear what the Minister had to say in his remarkable maiden speech about his own business and the way he treats his employees. I hope the Government will take a similar approach. Of course, when things go wrong, they have to be investigated and put right, but it seems that we hear only when things wrong; we do not hear about the countless occasions when the men and women working in our public services get things right.

There are other pressures; it is not simply media and political pressure. As others have made clear, the probation service is badly understaffed and underfunded. There are too many relatively junior probation officers taking on cases which should be reserved for more senior, experienced people, who do not exist in the service. This will take a long time to put right. Recruiting 1,000 new probation officers is better than nothing, but they will be trainee probation officers, at the bottom. Programmes to try to tempt back into service more senior figures who have left in recent years will also be important.

If it will become the aim of this Government, as I very much hope it will, to try to reduce our prison population, the obvious place for them to start will be at the lower end, with those serving shorter sentences who have the highest reoffending rates—over 50% for adults released from serving sentences of 12 months or under. However, if these individuals are released without some form of supervision, the policy will soon discredit itself, and the Government could even be forced into a U-turn. An absolute corollary of reducing the prison population is to boost probation and rehabilitation services. The former cannot happen successfully without the latter.

We are told that there is not enough money, and that may be the case, but we could save some money from the £600,000 it takes to build each new prison cell, put less people in prison, and spend some of that money perhaps on intensive treatment, probation officers and other rehabilitation services. We have the balance of expenditure wrong.

I was very interested in the remarks made by the noble Lord, Lord McNally, during the King’s Speech debate on Wednesday. He is a distinguished former leader of the Liberal Democrats, and I think we can all agree—I am sure Liberal Democrats would—that he is a wise old bird. He made the point that it is important in this debate to keep lines of communication open with the top of the Government.

[Baroness Blake of Leeds (Lab)]

Could I ask that the noble Lord makes his comments short, and brings them to a conclusion, please?

[Lord Macdonald of River Glaven (CB)]

I will come to a conclusion now.

I was simply going to say that I think that is absolutely right. I knew the new Prime Minister for 25 years at the Bar, first as a practitioner and thereafter when he succeeded me as Director of Public Prosecutions. I think his instincts would tend towards supporting generally the conclusions of this report. If that is right, those inclinations, combined with the Minister’s well-known desire to boost rehabilitation, could lead, at last, to some real reform in this area.

King’s Speech

Lord Macdonald of River Glaven Excerpts

Wednesday 8th November 2023 Lords Chamber

[Lord Macdonald of River Glaven (CB)]

My Lords, I first got to know Lord Judge well when I was a pretty raw and inexperienced DPP and he became president of the Queen’s Bench Division and head of criminal justice in the Court of Appeal. He was kind, wise and, where necessary, sympathetically firm. These were wonderful qualities in a judge, a Lord Convenor and a friend. I also congratulate the noble and learned Lord, Lord Burnett of Maldon, on his maiden speech. I am sure that his contributions to your Lordships’ House will be important and necessary in the years ahead.

From time to time, both major parties have played their part in an arms race in criminal sentencing. They sometimes seem to want to outbid each other in sentencing policy, no doubt in the belief that this is worth votes. They may, of course, be right about that, but it is surely the role of Governments and Oppositions to sometimes lead and not simply follow. This is particularly true on questions of public policy, where the public mood may not always coincide with what is best. This is an aspect of representative, rather than delegative, democracy.

Everyone involved in British penal policy knows that incarceration is horrendously expensive, that much of the prison estate is crumbling through lack of investment, that inspectors’ reports on prison conditions are frequently a national embarrassment, and, perhaps worst of all, that recidivism rates are appalling and not improving. The figures no doubt reflect, in part, the inadequate provision of rehabilitative schemes. The Government are prepared to grow the prison population by increasing sentences, reducing parole and restricting remission, but they are not prepared to pay for a sufficient increase in prison places to accommodate these policies, for the necessary improvements to the prison estate or for proper rehabilitation to minimise reoffending. In the end, all of this hurts the public.

Perhaps recognising this failure in joined-up policy-making, the Government’s 2021 spending review promised 20,000 new prison places. But by June of this year, only 5,200 of these places had materialised and, according to the Ministry of Justice, we will have just 8,200 by May 2025. The full 20,000 will not be on stream until 2030—if we are lucky. One project has apparently been delayed by the discovery of a badger sett.

In the face of this, our prison population reached over 86,000 in February this year, the highest in western Europe. It is projected to rise to over 94,000 by March 2025, and we are told that it could reach over 108,000 by 2027. As Sir Bob O’Neill, the respected Conservative chair of the Commons Justice Committee, has said, you cannot keep trying to squeeze a quart into a pint pot.

The result of this dispiriting cycle of poor public policy is disgraceful prison conditions almost designed to perpetuate criminal behaviour, ad hoc early release schemes, frankly embarrassing threats to decant British prisoners to jails abroad, and, perhaps most undignified of all, judges having to delay sentencing hearings so that convicted people on bail will not have to be sent to over-capacity prisons just yet.

It should not be beyond the capacity of the British state to design a penal policy that tends towards rehabilitation, that does not rely on emergency release schemes, that does not force us to pay other countries to house our convicts, and that allows judges to get on with the business of dispensing timely justice.

I strongly welcome the brave and sensible approach the Secretary of State has taken to less serious offending and his proposal to reduce—I hope drastically—the number of people sent to prison on short sentences that allow no time for rehabilitation and for which rates of recidivism are so high. However, I am concerned about proposals to abolish remission altogether for certain categories of serious crime, for two reasons. First, remission works as an essential form of behaviour control, particularly in crowded, understaffed prisons. This policy will make the already difficult task of prison staff harder and more dangerous still. Secondly, there is no doubt that this dam, once breached, will breach again. I predict that, if the Government pursue this, the categories of offence with no or reduced remission will grow and the prison population will ramp up.

Finally, what is proposed on whole-life sentences is a very significant change that will greatly increase the number of prisoners serving whole-life terms in our prisons. Can the Minster tell us whether the Government have calculated by how many, or what the impact on prisoner management might be?

It is no insult to the victims of crime to acknowledge that there is a hierarchy of evil in criminal conduct and that whole life has always been reserved for the very worst crimes. The murderer of Zara Aleena, whose sentencing may have played some part in this proposal, committed a terrible crime, and her bereaved family have behaved with extraordinary dignity ever since. In the end, the Court of Appeal decided that the killer deserved a minimum sentence of 33 years but, as the Lady Chief Justice pointed out, that does not mean he was getting a sentence of 33 years. His sentence was life. It simply meant that he was being told that he must serve at least 33 years before he would even be considered for parole. Thirty-three years is a severe penalty, yet the reality is likely to be much harsher.

It is widely recognised by commentators of all political persuasions—indeed, it has become a commonplace observation—that some of these criminal justice proposals in the gracious Speech amount to an attempt by the Government to create political space between themselves and the Opposition in advance of next year’s general election. That is a depressing way for the Government to steward criminal justice.

Police, Crime, Sentencing and Courts Bill

Lord Macdonald of River Glaven Excerpts

Report stage
Wednesday 12th January 2022 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I too support this proposal. The objectives set out in each of the paragraphs (a) to (h) of proposed subsection (2) of the amendment are plainly and urgently needed. It should not be necessary to establish a royal commission to focus on, pursue and achieve these objectives, but plainly it is necessary. These deficiencies have been identified, recognised and discussed for years but, as for getting anywhere in terms of achievement—on the contrary.

The main parties on both sides of the House, not least this Government, seem ever more intent on winning the law and order vote. Sentences are being increased; minimum and mandatory terms are being imposed. We now need the impetus, the force, of no less than a royal commission to start to recognise the intense problems of our whole penal system and to start to set the matter right.

[Lord Macdonald of River Glaven (CB)]

My Lords, I do not regard the United Kingdom’s place at the top of the incarceration league table for western European countries as a badge of honour. It seems to me that this fact in itself calls for a broad strategic view of how sentencing is working in this country and why it is that we send so many more people to prison than other countries do.

One of the issues seems to be that criminal justice, particularly sentencing, has become a political football. A sort of auction has been going on between the main political parties over the last 20 years or so to discover who can present themselves as the toughest on this issue. I do not mean to minimise the effect of crime on victims or on society as a whole, but short sentences in particular are surely counterproductive. The best way to school a young man in crime and anti-social behaviour is to send him to prison for three or six months.

It seems to me that one of the great possible achievements of a royal commission would be to take some of the political sting out of this issue and to inject some rationality and even some science into it. I strongly support the amendment.

[Lord Bach (Lab)]

My Lords, may I ask the Minister a question? A few years ago, when I was a police and crime commissioner, it came across our desk a lot that it was government policy to have a royal commission on the criminal justice system. What has happened to that proposal? Is it still there? Is it still the Government’s hope to do that? If it was, I would be very much in support of it. If it is not, I very much support the amendment that the noble Lord, Lord Marks, has moved.

Police, Crime, Sentencing and Courts Bill

Lord Macdonald of River Glaven Excerpts

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

[Lord Judge (CB)]

My Lords, I find myself in a puzzle. The Government of the noble Lord, Lord Blunkett, and the noble and learned Lord, Lord Falconer, who introduced this form of sentence, have indicated that they would not have introduced it if they had known how it would work. A different Government, the coalition Government, of which the present Government formed the majority, saw the iniquities of it and Parliament got rid of it. Therefore, we now have a strange system. We have people in custody under the old system and people with the same record, the same problems, the same issues arising, who are not subject to the same sentences as each other. That seems rather strange, but in terms of an Act of Parliament, it is an utterly illogical situation for the Government now not to at least address the consequences of the sentence having been abolished in the 2012 Act.

Quite rightly, that was not made retrospective. I see that retrospectivity must be avoided, but we have been going on with the sentence that has been abolished for eight or nine years now. We all know that something must be done. I am not making a personal comment about the Minister, but everybody knows that it must be done, including Ministers in the Home Office and the Ministry of Justice. We must do something about it, in fairness and logically.

I added my name in support of the amendment tabled by the noble and learned Lord, Lord Brown, but all these amendments are asking one simple question: “You must do something, so will you now tell us what it is?” It is no good us being in a situation where “Something must be done” when “What is going to be done?” is the real question.

[Lord Macdonald of River Glaven (CB)]

My Lords, I hope that the Minister can acknowledge that this is one of those comparatively rare occasions when noble Lords from all parties and none and from across the House have come together in the face of overwhelming evidence that a great public policy, in this case a great criminal justice policy, has gone disastrously wrong. It is beyond argument that IPPs have resulted in periods of incarceration out of any reasonable proportion to the gravity of the original crimes for which they were imposed. That is wrong. It is beyond any reasonable argument that these sentences are beyond any proportion to the risk that continues to be represented by any of the offenders to the public. That is wrong. There is the strongest evidence before the Government that IPPs are observably responsible for persistent and continuing injustice. The noble Lord, Lord Hunt, spoke very movingly about the reality of those injustices for those who are suffering under them.

I declare an interest as president of the Howard League and in doing so repeat what a number of noble Lords have said about the contribution made by Frances Crook. She has been a monumental figure in criminal justice, which is better today for her work than it would have been without it. The Government now have an opportunity to make a startling improvement to our criminal justice arrangements by the simple expedience of doing away with IPPs in their entirety; I agree with the noble and learned Lord, Lord Garnier, in this respect. The evidence could not be clearer. I support all these amendments and urge the Government now, in the face of this overwhelming case, to act.

[Lord Pannick (CB)]

My Lords, I hope that when the Minister responds to this debate, he can put away the departmental brief and respond to two simple questions. The first is whether he accepts that the present system is unacceptable. The second, which the noble and learned Lord, Lord Judge, posed, is: what will the Government do about it? This is not a new problem. The Government have had years to think about the options and to consider what to do. The noble Lord is already a very distinguished Minister of Justice. Can he say what the Government will now do to address a manifest injustice?

Domestic Abuse Bill

Lord Macdonald of River Glaven Excerpts

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

[Lord Lucas (Con) [V]]

My Lords, I add my name to those saying that this is a change we should make, and now. I would like to be sure, which I am not at the moment, that the wording will cover an image which does not actually exist but is merely asserted to exist. On some of these occasions, a recording will have been made or said to have been made without the victim’s knowledge, but she may well believe that the allegation is true because it is a believable one. Under those circumstances, it should be clear that this offence is activated. I would also like to understand better how one can consent to a threat. If it is a threat, what does consent look like? What would it take for someone to consent to a threat? How would that be phrased; how would it work? Is “publish and be damned” consent? If not, what would be?

[Lord Macdonald of River Glaven (CB) [V]]

My Lords, I am grateful to the noble Baroness, Lady Morgan, for putting down this amendment, which I strongly support.

One way to judge the gravity of a crime is to assess the anguish it brings to its victims. Usually, this emotional suffering comes as a by-product of, say, physical harm or financial loss. However, sometimes the creation of anguish is deliberate, the whole point of the crime, and a source of great satisfaction to the criminal. It is perhaps no surprise that our courts have reserved special condemnation for those responsible for this sort of behaviour. In 2015, amid mounting evidence of a growing problem, the Government decided to tackle the ugly phenomenon of so-called revenge porn: the sadistic online dissemination without consent of sexually explicit photos and videos, usually of young women, and usually by disgruntled former boyfriends. Ministers recognised that this behaviour is particularly nasty because it targets the most private and personal aspects of life, exploiting intimacy to create ridicule, contempt and public shame. Indeed, each of these emotions is precisely what is intended by the perpetrator, particularly the public shaming. This conduct was thus made a crime that could lead straight to prison.

However, it is now clear that the present law does not go far enough, for what about threats to share intimate images? As your Lordships have been told, at present, these attract no criminal sanction at all, although the evidence shows that significant numbers of women and girls face this menacing behaviour.

Much has been said in this debate about the survey carried out by Refuge, the country’s largest provider of domestic abuse services. That is not surprising when the results of this survey appear to show that as many as one in seven young women in England and Wales have faced these threats.

These figures portray a world of anxiety and dread. Because most of these threats come from current or former partners, they also speak of deliberate schemes of domination and control that we should acknowledge for what they are: straightforward examples of domestic abuse. Like all crimes in this category, they gift a gratifying sense of power to the abuser, who is intent on using this power to signal the victim’s utter lack of worth.

Amendment 162 provides the opportunity to change the law to criminalise this behaviour, granting thousands of women and girls access to justice and protection—the first duty of the law. At present the Government prefer to push this issue off into the future, awaiting a Law Commission review into all forms of image-based abuse. But for all the reasons set out by the noble Baroness, Lady Morgan, people subjected right now to this behaviour should not have to wait. I hope the Government will accept what is widely acknowledged: that this is a gap in the law and the Government’s duty is to plug it without delay.

[The Deputy Chairman of Committees (Lord Alderdice) (LD)]

The noble Baroness, Lady Fox of Buckley, has withdrawn, so I call the noble Lord, Lord Russell of Liverpool.

Criminal Justice and Courts Bill

Lord Macdonald of River Glaven Excerpts

Monday 21st July 2014 Lords Chamber

[Baroness Scotland of Asthal]

My Lords, I can assure the Committee that this has been a sober debate on the issues and that it is clear that there is no unanimity of view on any Bench. I believe that the House of Lords is demonstrating its independence and doing what it does best, which is to argue and disagree, and then, it is hoped, to come to a consensus.

[Lord Macdonald of River Glaven (LD)]

My Lords, amen to that. Like the last several speakers, I had not intended to intervene in the debate—this could go on all night, I suppose—but I want to make two points. First, it was my experience, not only as chief prosecutor but also over very many years of practising criminal law, that sentences of between four and six months are not just pointless, as many speakers have indicated, they are positively damaging. Young people who are sent into young offender institutions for four to six months do not come out with nothing, they come out with worse than nothing. I have always thought that it was a preposterous policy to send young people into incarceration for such periods, and yet that is precisely what this Bill mandates, and in that sense it will do serious damage.

The second issue is mandatory sentencing. We have a good example of a jurisdiction that has gone down the route of mandatory sentencing: the United States of America, which has well known federal sentencing guidelines. The prison population in the United States of America stands presently at 3 million.

[Lord Kennedy of Southwark (Lab)]

My Lords, when I make contributions to these debates, I am always conscious of a sense of nervousness because so many distinguished noble and learned Lords have contributed to the debate. I am not a lawyer: I come to the debate as a lay person. On these Benches, we are unable to support the noble Lord, Lord Marks of Henley-on-Thames, although we share his concerns about the effects of stop and search. We must have procedures in place to discourage the carrying and use of weapons. I am sure that the noble Lord, Lord Faulks, will confirm when he responds to the debate that he believes, as I do, that the Bill should allow for judicial discretion.

It is important that the Government deal with the issues that lead people, particularly young people, to commit these offences. I agree with the comments of the noble Lord, Lord Paddick, who talked about getting into schools. It is not enough to lock up young people who commit offences without dealing with the causes that lead them to do so. What will be provided to deal with the problems? Many noble Lords made that point about what actually happens to people who are in prison for short sentences.

I agree with the comments of the noble Lord, Lord Deben, about how this provision got into the Bill in the first place in the Commons. It came in very late. That is regrettable. I also agree with the comments of the noble Lord, Lord Blair.

As my title indicates, I grew up in Southwark, on a council estate. I was very happy there. I do some work with a local charity working with kids on council estates all over the borough and the neighbouring borough of Lambeth. It seeks to get kids to play football together. You can hardly fight as you play football together. I recently spent some time with the charity. I was shocked and depressed by how much depended on the estate you lived on, so that when you walked home if you walked a certain route, you would have real problems. I met one young lad who lived on the Wyndham estate, right next to my primary school. The estate is 50 yards from the borough of Lambeth, but he told me that he never walked across into the borough because he was scared. He would never cross the road. I could not believe that—it is an absolutely shocking situation. We have to deal with those problems.

The charity organised a World Cup in Kennington Park, and it got different council estates and different nationalities playing football together—meeting up and playing football together rather than fighting each other in the evenings. That was fantastic. This chap does all this work, with virtually no funding from the local authority, from the Government or from anybody. It is fantastic. These are the sort of things that we would all agree need our full support.

My response to the noble Lord, Lord Paddick, is that I agree with the noble and learned Lord, Lord Mackay—this is about a deterrent which will keep people out of prison. We are not actually sending people to prison. I also agree with many of the comments of my noble friend Lady Howells and the noble Baroness, Lady Berridge. However, I am confused about the Liberal Democrat position. I mentioned in my speech at Second Reading that in the LASPO Act, the Liberal Democrats supported mandatory sentences for carrying a threatening or offensive weapon. The question was raised recently in the Commons and an amendment agreed without a Division. There is now an offence of carrying an offensive weapon in public with a mandatory maximum sentence of four years. I find that a bit odd in terms of what comments I have heard and taken note of from the Liberal Democrat Benches.

Assisted Dying Bill [HL]

Lord Macdonald of River Glaven Excerpts

Friday 18th July 2014 Lords Chamber

[Lord Macdonald of River Glaven (LD)]

My Lords, if this Bill passes into law it will, I believe, herald a fundamental and irreversible shift in the attitude of the state to the deliberate application of death. If it takes place, I am sure that this shift will in time, and perhaps not long into the future, bring further changes in our approach to death by human hand. Many people will support this present shift and some will support the shifts to come. For my part, I do not.

When I was the Director of Public Prosecutions between 2003 and 2008, scores of these cases came across my desk. They are always considered by the DPP personally, not by a lawyer in his office. I did not in a single circumstance authorise a prosecution against anyone who, through compassion, had helped a son, a daughter, a husband, a mother or a friend to die. It was as long ago as 1949 that Hartley Shawcross, the great Nuremberg prosecutor and Attorney-General in the post-war Attlee Government, reminded the House of Commons that it has never been the law of England that in every case where there is sufficient evidence for a prosecution, that prosecution must be brought. That is because in this jurisdiction we have always understood that inflexibility and justice rarely go hand in hand. There is nothing new in that; it has been part of our system of justice over the years. So it is that prosecutors have, and always have had, a discretion. Where there is sufficient evidence, they have always asked themselves, “Would it be in the public interest to prosecute this case?”.

The position we have arrived at in this country is this: a broad prohibition of law to deter those who might take action through venal motives—and such people do exist. It would be foolish to assume that everyone counselling a suicide acts from pure motives or that venality is always absent. However, coupled with that prohibition of law is a clearly defined discretion to protect those who face an impossible choice and who act from motives that are beyond reproach. Under the system as it presently exists, they do not and they will not face prosecution. To those who respond by saying, “But these people face the uncertainty of investigation before they are relieved of the threat of prosecution”, my response is that surely it is unthinkable, even under the scheme being proposed by the noble and learned Lord, Lord Falconer, that there should be no inquiry following an assisted death, if only to determine that a detailed and prescriptive law such as the one he is proposing has been complied with and not broken. There will always be an inquiry and there should always be an inquiry. If I am wrong about that, and if in fact we are being invited to enter a world in which the deliberate infliction of death is protected from inquiry, I believe that we should decline that invitation, as I do.

Assisted Suicide

Lord Macdonald of River Glaven Excerpts

Wednesday 5th March 2014 Lords Chamber

[Lord Macdonald of River Glaven (LD)]

My Lords, I, too, thank the noble Baroness for initiating this debate. It is, as she says, a difficult and sensitive subject. My years as DPP brought home to me, in concrete examples day after day, the power that the law has to protect vulnerable people, but also its great capacity to inspire awe and therefore to deter cruelty and abuse. In the case of assisted suicide, the law must do both.

By law, every prosecutor examining a case must ask not one, but two questions. First, is the evidence sufficient for prosecution? Secondly, if so, would a prosecution be in the public interest? That is why an 80 year-old will not be prosecuted for shoplifting or a careless driver for a collision in which her own child is killed. It is also why, during my time as DPP, no one helping a loved one travel to Switzerland to die was prosecuted, even if the evidence that they had committed the crime was perfectly made out. The DPP’s guidelines, I believe, give clarity to this exercise of discretion.

It would be foolish to assume that everyone counselling a suicide acts from pure motives, or that malice or venality is always absent, but I believe that the equation that we have developed—a broad legal prohibition on the one hand, to deter those acting out of malice, and a carefully explained prosecutorial discretion on the other, to protect those who act from genuine compassion —strikes the right balance. It shields those who need protection on both sides: the terminally ill from exploitation and those whose compassionate assistance may be sought from prosecution.

Of course, any police investigation is difficult and traumatic, but even if the law is changed, there will be no escape from investigation—nor should there be. After all, even if the law is changed, someone will have died at the deliberate hand of another. The law should of course acknowledge purity of motive and recognise that people face impossible choices, but it does that already. What it should not do is to turn so far one way that it no longer sees the risk of conduct that should properly remain criminal.

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Macdonald of River Glaven Excerpts

Wednesday 25th April 2012 Lords Chamber

[Baroness O'Loan]

My Lords, the serious dangers of restricting legal aid in this area have been recognised by Members of this House and the other place and by the third sector as well as by the churches. The leaders of the Christian, Sikh, Jewish and Hindu communities have all written to the Lord Chancellor saying that the Bill risks leaving domestic abuse victims,

“in dire need of support but without the ‘right kind of evidence’ to secure it”.

They also warn that,

“arbitrary time-limitations on the validity of evidence risk leaving victims without access to support, even when they may still be at risk of further abuse”.

There is no accommodation for those who cannot secure admission to a refuge because it is full, or they have complex needs, or they have little boys who are older than 11, or perhaps because they fled an abusive situation, going to a friend or relative rather than to a refuge. Or even because, unable to access a refuge, they have still accessed non-residential domestic abuse services. There is no logic in excluding these women. Their need is not necessarily any less, and may indeed be greater, than those who manage to make it into the refuges.

Bringing time limitations on the validity of evidence in line with the civil standard would be an appropriate and fair move, not least, as the noble and learned Baroness, Lady Scotland, has said, because of the considerable time—if it ever happens—that it takes victims to be able to face legal process.

Without these changes our legal system will let down many of the most vulnerable people in our society. It will leave them potentially trapped in violent and abusive circumstances. The risks of that are potentially grave if not, as the right reverend Prelate said, fatal.

[Lord Macdonald of River Glaven]

My Lords, I spoke on the issue of domestic violence on a number of occasions during the Bill’s passage. As the noble and learned Baroness, Lady Scotland, said, domestic violence is a phenomenon that breeds insecurity, violence and, as we know, sometimes death. Perhaps as bad as any of those, it travels across generations, repeating itself over and over, in worse and worse spirals of crime. In recent years, as noble Lords know, very much progress has been made by people working in social services, by medical professionals, lawyers, judges and others, in recognising and identifying domestic violence, sometimes in prosecuting it—winning convictions more often than we used to—and in dealing appropriately with its victims.

My concern was that, in its original form, the Bill plainly failed to heed some of these lessons. It failed to recognise that victims do not always present themselves in predictable ways, and that the justice system should—indeed must—offer a broad, expansive and empathetic approach to this crime, and to the victims of this crime.

I had two particular concerns. First, the definition of domestic violence within the Bill was far too restrictive, much more restrictive than the definition that is employed by ACPO and the CPS regularly, successfully and happily and to the good understanding of all agencies involved, including the courts. Secondly, I felt strongly that the range of material allowed to evidence domestic violence so that there was a gateway into legal aid for its victims was far too narrow. I am inclined to agree that neither of these defects should ever have been in the Bill in the first place, and I was surprised, to be frank, that they were.

I am extremely grateful to my noble friend, who has been happy—perhaps I do not know how happy he has been—to have many conversations with me on this topic. I am grateful to the Secretary of State, the Lord Chancellor, as well. I believe that the Government’s response has been broad. I have enormous respect for the noble and learned Baroness who, when she was a distinguished Attorney-General, was an inspiration to prosecutors on this topic, as well as on many others. Her distinguished period of office is remembered with great affection in the CPS.

The Government have adopted the ACPO-CPS definition, for which we were asking since before Report stage, and included it in the Bill. I commend them for that. They have also broadened significantly—with respect, more significantly than some noble Lords’ speeches have allowed—the categories of evidence that will trigger legal aid in these cases for the victims of domestic violence, including evidence from social services and medical professionals in addition to the other gateways which existed, and where the court wishes to consider a finding of fact that domestic violence exists so as to grant legal aid, it can consider matters such as police call-outs and referrals to domestic violence centres, as the noble and learned Baroness, Lady Scotland, has called for.

After considering the Government’s response with as much care as I can, I have concluded that this has been a strong example of a Government who were clearly—and who, with respect, had been badly in error, in my view—listening to the concerns of this House and responding. For my part, I shall support the Government on this issue.

[Lord Blair of Boughton]

My Lords, I lent my name to the first iteration of the amendment put forward by the noble and learned Baroness, Lady Scotland. I want to speak again for a moment about this. I accept and, as has the noble Lord, Lord Macdonald, I praise the Minister for the movement that the Government have produced. However, in my experience of 35 years of dealing with these kinds of cases, there is something very specific about a certain category of offender, including the offenders of child abuse, domestic violence, stalking and partner rape—namely, their deviousness and the control that they exercise on their victims. Therefore, I strongly support the idea that we should not let down this group of victims by imposing an arbitrary limit on the time in which the evidence can be produced in a way that will provide legal assistance to those victims.

Some of your Lordships will be experienced enough to remember the great Erin Pizzey, who was the first founder of women’s refuges. Her book had the most staggeringly accurate title about the kind of man who would commit these offences. I do not mean to say that there are no women who do this but we are primarily talking about men. The title of that book was Scream Quietly or the Neighbours will Hear. I think that we should say, just one last time, will the Government please look at this time limit again, because this group of offenders works in a completely different way from most other criminals?

Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Macdonald of River Glaven Excerpts

Tuesday 20th March 2012 Lords Chamber

[Baroness Linklater of Butterstone]

My Lords, I add my wholehearted support to what the noble Baroness, Lady Corston, and everyone else around the House, has said. There has been no dissent. How could there be? It struck me that the proportion of women in the prison system is roughly similar to the proportion of children. Those are our two most vulnerable groups and the groups for whom we do least well by and least well for. They are the most vulnerable and the most needy.

It is very nice to see the noble Lord, Lord Warner, in his place, because the previous time we worked together—I imagine that we are together on this—we were fighting to save the YJB. I remember saying then that we must not allow ourselves to think for one minute that children are small versions of adults. Their needs are so different. Women are not other versions of men. Their needs are also extremely different. When the noble Baroness, Lady Corston, was quoted as saying that these prisons were all designed for men, she was quite right; women were in no one’s mind. They suited, and that was where they were coming from. To imagine for one minute that we could stick women into similar institutions and do them any good was absolutely insane.

If we ever get to what the noble Lord, Lord Ramsbotham, suggested and have someone who is in charge of and leads the way in policy, organisation, delivery and practice for women, I hope that that person will be a woman.

[Lord Macdonald of River Glaven]

I rise even more briefly to support the amendment. I do not know of a single lawyer, prosecutor, judge or prison officer who does not believe that women’s prisons are full of people who should not be there and, worse, who are being further damaged by being held there. The scandal is that we have all known this for years. Ministers know it, but nothing is done about it. The amendment is a modest proposal in the right direction, and it has my wholehearted support.

[Lord Warner]

My Lords, I apologise for missing the beginning of this debate, but I was caught on the hop by the speed of progress.

Prompted by the noble Baroness, Lady Linklater, perhaps I may, with some trepidation, remind the Minister of the Youth Justice Board—not to score any points off him but to make the point that that body was set up to produce focus over a continuing period of time and to bring a range of agencies together to focus on the need of that particular group of offenders. I think the Minister accepts that some progress was made in youth justice by that kind of approach, and I hope that he will apply that approach and the same logic to women. I thoroughly support my noble friend’s amendment.