Domestic Abuse Bill
Lord Marks of Henley-on-Thames ExcerptsWednesday 3rd February 2021
(3 years, 3 months ago)
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(1A) A person referred to in this subsection is—(a) a party to the proceedings;(b) a relative of a party to the proceedings (other than P); or(c) a witness in the proceedings.”Member’s explanatory statement
This amendment and the other amendments to Clause 62 in the name of Lord Marks of Henley-on-Thames would apply the same special measures to parties or witnesses who are victims or at risk of being victims of domestic abuse in civil proceedings as apply in family proceedings.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, my four amendments in this group—Amendments 109, 111, 112 and 113—to which the noble Baroness, Lady Bennett of Manor Castle, has kindly added her name, are intended simply to apply the Bill’s provisions relating to special measures in family proceedings to civil proceedings as well.
Under the Bill as it stands, special measures are to be available to parties or witnesses in family proceedings who are victims of domestic abuse or at risk of being such victims. Although the provision of special measures in courts is relatively recent, the courts recognise how important it is to help vulnerable parties and witnesses reduce the trauma— the ordeal, even—of involvement in court proceedings. Special measures are arrangements to help a vulnerable party or witness give evidence or participate in court proceedings in a way that mitigates that trauma. Even in the driest and least emotional of cases, the experience of being involved in litigation, especially of giving oral evidence, is often extremely stressful. For vulnerable parties and witnesses, most with a history of deep and often emotionally searing personal involvement in the events that led to the proceedings, the experience of reliving them is fraught with anxiety, fear and even terror. Therefore, the need for special measures arises.
Such special measures enable witnesses or parties to give evidence from behind a screen, usually in abuse cases, to protect them from having to face their abuser or abuser’s family across a courtroom. Alternatively, provision can be made for witnesses to give evidence via a live link or with the assistance of an intermediary. Special measures cannot remove the fear but can help to reduce it. We take them as a matter of compassion for those involved, but also out of concern that victims and vulnerable parties should not be too frightened of bringing proceedings to come forward and therefore continue to suffer abuse in silence, sometimes with horrifying consequences. We also take special measures to help ensure that proceedings are fair, that the quality of the evidence before the court is as good as it can be in difficult circumstances, and that the courts can, therefore, make fair decisions.
For family proceedings, Clause 61 would require that where a party or witness is, or is at risk of being, a victim of domestic abuse carried out by another party or relative of another party, or by a witness in the proceedings, it is to be assumed that there is a risk of the quality of the victim’s evidence, or of her participation in the proceedings generally, being diminished.
That has the effect of bringing into play the provisions of Part 3A of the Family Procedure Rules 2010, which are supported by a detailed practice direction. They provide that victims of domestic abuse and other parties or witnesses are eligible for special measures if the quality of their evidence or their ability to participate in the proceedings is likely to be diminished by their vulnerability. The rules and the practice direction set out a full code for the court to identify vulnerability and consider ways to help vulnerable witnesses and parties. They do not just cover giving evidence. Directions may include
“matters such as the structure and the timing of the hearing, the formality of language to be used in the court and whether (if facilities allow for it) the parties should be enabled to enter the court building through different routes and use different waiting areas.”
The existing provisions also go wider than domestic abuse and cover:
“sexual abuse … physical and emotional abuse; racial and/or cultural abuse or discrimination … forced marriage or … “honour based violence” … female genital or other physical mutilation … abuse or discrimination based on gender or sexual orientation … and … human trafficking.”
Clause 61 requires the court to assume that, if the threshold I mentioned is met, special measures will automatically be available in domestic abuse cases for victims and those at risk of being victims. The court will then consider what, if any, special measures should be taken. There is scope for an opt-out under Clause 61(4), whereby a party or witness in family proceedings can signify that they do
“not wish to be deemed to be eligible”
for special measures.
The reason that I have spent some time setting out the background and the arrangements proposed for family proceedings is that they are thoroughly sensible and helpful and likely to be effective without unforeseen and unjust gaps. My amendments are directed at ensuring that the same arrangements apply in civil proceedings by bringing Clause 62 into line with Clause 61. They would implement the recommendations made by the Civil Justice Council and supported by Refuge, Women’s Aid and the Equalities and Human Rights Commission, among others.
Clause 62, as drafted, does not do the same for civil proceedings as Clause 61 does for family proceedings. For a reason I do not understand, the clause sets a higher bar for civil proceedings. There is an additional threshold test, which a party or witness would have to surmount to secure eligibility for such measures. The clause requires that to qualify as a victim or alleged victim, the person must be the victim of “a specified offence”, that is one specified in regulations by the Lord Chancellor. That condition is defined in Clause 62(3). For it to be met, there must have been a conviction or a caution for the offence, or someone must have been charged with the offence against the victim. Therefore, it would not be enough for the vulnerable witness or party to establish that they are frightened of being a victim or at risk of being a victim, nor even that they have, in fact, been a victim. They have to establish that the criminal law has been invoked so that the offender must have been cautioned or charged by the police for the specified offence or convicted of it by a criminal court. I suggest that there is no basis for this distinction between family and civil proceedings.
We know how often victims do not report abuse to the police, whether out of fear of their abusers or the relatives, fear of the trauma of criminal proceedings, concern for their private lives being exposed, or other reasons. The Office for National Statistics estimates that around four in five—79%—of survivors do not report partner abuse to the police. Requiring that victims go through the criminal process before being treated as vulnerable, and excluding those at risk of being victims from being treated as vulnerable altogether, represents a failure to understand vulnerability. Invoking criminal proceedings requires robustness. Experience and common sense tell us that vulnerable witnesses and parties are those least likely to involve the police and the criminal courts.
I have discussed this issue with the noble Lord, Lord Wolfson, and I am grateful to him for talking to me about these amendments and engaging with them. The noble Lord explained the Government’s position by saying that there is an intimacy to family proceedings not present in ordinary civil proceedings. In many cases that will be right, but I invite the noble Lord to concede, from his own experience, that there are literally thousands of cases involving partners, former partners and others who are personally connected—as defined in the Bill—which involve disputes that have a domestic or quasi-domestic context.
I give a few examples only: disputes about ownership and occupation of property; ownership, loss or damage to goods; landlord and tenant disputes, including disputes about who holds tenancies; employment disputes; and inheritance disputes. There are also disputes arising out of families running businesses together, which has become increasingly common in recent decades. These sometimes involve partnership disputes, sometimes it is disputes over the ownership of shares or misuse of company funds. In these cases, the parties might be companies, but the witnesses might have been involved in an acrimonious and abusive personal relationship.
The list goes on and lawyers well know that cases with personal connections give rise to the greatest animosity and the greatest tension. I can see no reason to apply a different test for vulnerability in civil proceedings from that applicable to family proceedings. If the conditions for family proceedings are met and the party or a witness is a victim or at risk of being a victim of domestic abuse, carried out by another party or a relative of such a party, or another witness in the proceedings, special measures should generally follow. It will always be for the court to determine whether those conditions are met, as it is in family proceedings. It would also be for the court to determine whether special measures are appropriate and what they should be. If the threshold is met, however, it is unjustified, illogical and unfair to insist that an offence must already have been committed and that the criminal law must have been invoked before eligibility for special measures is established. I beg to move.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, it is a pleasure to follow the clear, comprehensive and powerful outline of these amendments by the noble Lord, Lord Marks of Henley-on-Thames, in whose name they are tabled. It was a pleasure to attach my name to Amendments 109 and 111.
The case has been set out very clearly so I do not need to detain the Committee for long. I will just say why I attached my name to these amendments when I saw that no other noble Lords had done so. It was because of my experiences as a young journalist many years ago in Australia, when I covered mostly criminal courts. This was in the days long before there was thought of protecting witnesses who were the victims of what we now call domestic abuse.
I saw the sometimes harrowing ordeals that people had to go through. I think the noble Lord, Lord Marks used the word “ordeal”. Members of your Lordships’ House are used to testifying, speaking and being in these spaces, but we are talking about people who are victims of domestic abuse and have suffered all the personal damage that entails. They are also not used to being in these environments very often. As the noble Lord, Lord Marks, said, this is an issue of compassion—of protecting people and ensuring that we are not making victims of domestic abuse suffer again. It is also an issue of justice because if they are to be able to clearly set out the case—to explain the circumstances and to bear witness—they need to be in conditions that reasonably allow them to do that.
As the noble Lord, Lord Marks, said, to set a higher bar for civil proceedings than for family proceedings simply does not make sense. As he said, there are many cases in which civil proceedings will be intimately entangled with family issues and issues of domestic circumstances. I think particularly of farms and some cases I have seen where the acrimonious break-up of family farm businesses will often be tangled in civil proceedings but have an intensely personal side as well.
These are important, sensible and helpful amendments. I very much hope that the Government will take them on board in the interests of compassion and justice.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, as the noble Lord, Lord Marks of Henley-on-Thames, explained, these amendments seek to bring the procedure relating to special measures in civil courts in line with the provisions in family courts. We agree with the fundamental aim set out by the noble Lord: to ensure fair proceedings, meaning proceedings that are fair not only to the parties but to witnesses.
In that context, the Government’s starting point when considering the experience of vulnerable witnesses in the civil courts stems from the independent inquiry into child sexual abuse, which published its interim report and recommendations in April 2018. The inquiry recommended
“that the Ministry of Justice provides in primary legislation that victims and survivors of child sexual abuse in civil court cases, where they are claiming compensation in relation to the abuse they suffered, are afforded the same protections as vulnerable witnesses in criminal court cases.”
As the inquiry put it, this was to ensure that victims and survivors of child sex abuse can provide the best evidence in civil court cases.
While the Government had some sympathy with the recommendation, we also agreed that the issues raised by this recommendation needed further consideration, including whether it was right in principle to extend the protections to other vulnerable witnesses. The Government therefore sought expert help from the Civil Justice Council, which was asked to consider the vulnerability of parties and witnesses in civil actions, not just in relation to claims arising from sexual assault or abuse but more widely. The Committee will be aware that, after extensive consultation and expert input, the Civil Justice Council published its report in February last year. It conceded that there was no single or coherent set of rules in the Civil Procedure Rules dealing with vulnerability in the same way as there was in the Family Procedure Rules.
In this context, we must remember an important point, to which the noble Lord, Lord Marks, alluded. Civil cases, by their nature, have the potential to cover a much broader range of circumstances where there is no prior close connection between the parties; for example, where a victim is suing an alleged perpetrator of sexual abuse or in an action against the police or an employer where abuse is alleged. Of course, I take on board the noble Lord’s examples of cases where the parties may be corporate but, none the less, there are individual witnesses who are victims.
Having considered the matter, and in relation to special measures, the Civil Justice Council report did not go as far as recommending that it should be enshrined in primary legislation. Rather, it was felt that it was best left to the flexibility of court rules since—this is an important point—judges in civil proceedings already have inherent powers to order the provision of special measures under the Civil Procedure Rules when it is considered necessary. However, the Government took a slightly different view, taking the recommendations that came from the independent inquiry into child sexual abuse, which I have already mentioned.
As the Civil Justice Council report highlighted, vulnerability in the civil courts is not limited only to victims of domestic abuse. Some people may have mental or physical conditions that render them vulnerable and hamper their access to justice. Others, as with victims or survivors of abuse, may be vulnerable solely by reason of the subject matter of the proceedings before the court. This, as the report suggested, may affect their ability to participate in proceedings or give their best evidence.
We want to avoid—this is a risk—unnecessarily prolonging cases because of satellite litigation which revolves around the granting of special measures where the case is not contingent on vulnerability. At the same time, as I said, we need to ensure that the justice system is fair—that is, fair for all. Therefore, we must be careful to focus this provision on only the circumstances in which it is needed.
Even though the approach is different in civil courts, judges in civil proceedings already have inherent powers to order the provision of some special measures under the Civil Procedure Rules when it is considered necessary. I hope that this goes some way towards addressing the concern of the noble Lord, Lord Marks, which was shared by the other two speakers in this short debate; I acknowledge their contributions, of course, but I think it is fair to say that they largely agreed with the approach taken by the noble Lord. In that context, the Civil Procedures Rule Committee continues to examine the issues faced by vulnerable witnesses in civil courts.
While we want to ensure parity between each jurisdiction, we also need to build in allowances for the differences—and there are differences—between them. This is why the provisions in respect of cross-examination and special measures in civil cases differ from those in family proceedings.
In the light of my discussions with the noble Lord, Lord Marks, and others, and in the light of all the contributions in this short debate, let me say—in clear terms, I hope—that we very much appreciate the arguments raised in relation to fairness and the concerns around availability of special measures for those who will need them in the civil courts. We will consider this issue carefully ahead of Report and continue to listen to arguments. Of course, I remain open to discussion with both the noble Lord, Lord Marks, and others.
In the light of that confirmation and undertaking, I hope that the noble Lord will be content to withdraw his amendment.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, first, let me say how grateful I am to the noble Lords who spoke.
It was interesting to hear my rather dry opening supplemented by the personal experience of the work of the noble Baroness, Lady Bennett of Manor Castle, in courts in Australia. She made the valuable point that, generally speaking, litigants and witnesses are not used to being in court—it is a new experience for them and this adds to their concern, which is of course amplified in the case of vulnerable witnesses and parties. She also gave the interesting and important example of family farms giving rise to very personal disputes, where there is often a background of abuse. I am bound to say that, in my years of practice on the Western Circuit before doing more of what I do now, disputes about family farms were endless. They are to be taken into account. I am grateful to the noble Lord, Lord Rosser, for his support as well.
The Minister has given a considered response and ultimately made an undertaking to me and others. I am grateful for the way he has dealt with the amendments. However, I am bound to say that nothing I heard from him justifies the distinction to be drawn between the protection afforded in family proceedings and the protection available in civil proceedings. I got the impression that he understands the reasons why we have disputed that distinction.
I do not accept that a system based on the Civil Procedure Rules for protection in civil proceedings is anything like as good as a system based on statute, as the arrangements in family proceedings will be following this Bill. If a statutory arrangement is good enough for family proceedings and is applicable as appropriate for those, I would suggest that it is appropriate for civil proceedings as well. Nor do I accept that there is a realistic prospect of satellite litigation arising regarding the availability or withholding of special measures. That seems most unrealistic and, in any event, even if it were realistic, it would be no more realistic in a set of measures based on legislation than it would be presently in a set of measures based on the uncertain application of the rules of court. I welcome the Minister’s commitment to further engagement. I regard this as a very important issue, and I will of course speak to him, as no doubt will others, between now and Report in the hope of achieving agreement. I beg leave to withdraw the amendment.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, we support this amendment for the reasons given by the noble Lord, Lord Rosser, as amplified by the noble and learned Lord, Lord Mackay, my noble friend Baroness Hamwee and the noble Lord, Lord McConnell of Glenscorrodale.
This amendment recognises that in cases involving domestic abuse, just as in any litigation, engagement between the parties is not limited to conducting the case, giving evidence, cross-examining witnesses and making submissions to the judge. The noble and learned Lord, Lord Mackay, pointed out that the inadequacy of arrangements that govern cross-examination alone make such arrangements difficult to justify.
There is often a need for the parties to consider and discuss the conduct and progress of the case, as the noble and learned Lord, Lord Mackay, pointed out. That is usually done through their advocates. Yet when the parties are perpetrator and victim of domestic abuse, and are unrepresented, the need for engagement can become an occasion for intimidating behaviour or bullying of the victim by the perpetrator. That need not even be deliberate, though it often is. Even if intimidation is not explicit in court, it may be effected by implied threats of what might happen later, or even by fear on the victim’s part—even if without justification —of what might happen later.
As discussed in earlier groups, the mere presence of the parties together in court can cause distress, intimidation, or trauma to victims. The outcome can be that victims are deterred from bringing proceedings at all. The experience of the proceedings can be grossly traumatic, to the extent of causing lasting harm, and just outcomes can be made that much more difficult to achieve. So, it is completely right that the court should be able to prohibit engagement by a party that unduly distresses the victim in the way set out in this amendment, whether that engagement be direct by the perpetrator or indirect through others. Yet, if the parties have no means to engage at all, there may be opportunities missed for resolving conflict or, at least, for making the issues clearer and enabling the court to achieve safer outcomes.
In cases where the parties are not represented, it is obviously sensible for there to be provision for representation to be arranged. As the amendment proposes, that should involve, in appropriate cases, the instruction of a court-appointed lawyer—not just for the perpetrator but for the victim as well. That is what the amendment proposes and I firmly believe it is right to do so. For my part, I believe that justice would be best done by ensuring that full legal aid is available for both parties to domestic abuse proceedings throughout those proceedings, which often last through several hearings, as the noble Lord, Lord Rosser, my noble friend Baroness Hamwee and the noble Lord, Lord McConnell, have said. The noble Lord, Lord McConnell, also highlighted the real risk of deterring litigants from bringing or pursuing proceedings once they are under way, by the absence of arrangements for representation.
This amendment does not go as far as we would like, but I know many noble Lords believe that full legal aid for both parties should be the outcome. Meanwhile, it would fill an important gap by preventing intimidation of victims by perpetrators during the course of proceedings, while keeping the door open to engagement between lawyers, which may smooth a path to resolution.
Lord Wolfson of Tredegar (Con)
My Lords, as the noble Lord, Lord Rosser, has explained, this amendment —to which my noble and learned friend Lord Mackay of Clashfern has added his, if I may respectfully say, very weighty name—seeks to expand the scope of the prohibition of cross-examination provided for in Clause 63 by prohibiting the perpetrator from engaging directly or indirectly with the victim during proceedings where that engagement would cause them significant distress. It goes on ultimately to provide for the potential appointment of a legal representative, chosen by the court, to represent both parties to ensure a fair process in the interests of justice in such cases. I can assure the Committee, in particular in response to the points made by my noble and learned friend Lord Mackay of Clashfern and others, that because this amendment has been supported by the Magistrates’ Association, we have given it very careful consideration.
As the noble Baroness, Lady Hamwee, explained, I am as every bit as concerned as her, and indeed the noble Lord who is proposing the amendment, to ensure that domestic abuse victims are adequately protected in the family courts. It is for that reason that the Government are already taking decisive steps to act on the recommendations of the Expert Panel on Harm in the Family Courts, in response to which we published our implementation plan in June 2020.
The Bill contains various measures designed to protect domestic abuse victims in family proceedings and across the other jurisdictions. In that context, I bear in mind the point made by the noble Lord, Lord McConnell of Glenscorrodale: the human impact that domestic abuse has, and that it can require some bravery to go to and appear in court in those circumstances, a point also made by the noble Lord, Lord Marks. Therefore, within the court environment, our provisions on special measures made it clear that the victims of domestic abuse and other parties or witnesses are eligible for special measures such as a screen during proceedings, where the court is satisfied that the quality of their evidence is likely to be diminished due to their vulnerability. In that context, on the point put to me by the noble Lord, Lord McConnell of Glenscorrodale, regarding the position of children, Clause 3(2) provides that any reference in the Bill to a victim of domestic abuse
“includes a reference to a child who … sees or hears, or experiences the effects of, the abuse, and … is related to A or B.”
Therefore, the Bill is structured very much with victims of domestic abuse, who may include children, firmly in mind.
It is not entirely clear from the noble Lord’s amendment whether the intention is that “direct or indirect engagement” during proceedings be confined to the court setting, by which I mean what goes on in the courtroom itself, or extend more widely for their duration, as set out in debate by my noble and learned friend Lord Mackay of Clashfern and repeated by the noble Lord, Lord Marks of Henley-on-Thames. There is often a need for what my noble and learned friend called personal and direct contact between parties in such proceedings. In that regard, one must bear in mind that under Part 3 of the Family Procedure Rules 2010, the court can make a participation direction. That can include the use of special measures, which are a series of provisions to help a party or witness to participate or give evidence in court proceedings. That is a range of measures available both to parties and witnesses to enable them to participate in an appropriate manner.
Beyond that, the courts have a range of protective orders, such as non-molestation orders and restraining orders, that can be made to protect victims when they are not within the confines of the court building. In addition, when introduced by the Bill, domestic abuse protection orders can be used to protect victims of domestic abuse outside the courtroom during proceedings. That is because the DAPO brings together the strongest elements of the existing protective orders into a single comprehensive and very flexible order that we believe will provide more effective and longer-term protection than the existing protective orders for victims of domestic abuse and their children. I underline the point that there may be circumstances in which children are also victims. So, for example, if children are giving evidence inside court, special measures may well be applicable and the prohibition on cross-examination may also apply.
“(7) A qualified legal representative appointed by the court under subsection (6) is responsible to the party, but must cross-examine the witness having regard to such directions as the Court may give to protect the witness from significant distress or to prevent the quality of the witness’s evidence from being diminished.”Member’s explanatory statement
This amendment is intended to maintain the responsibility of the legally qualified representative to the party in whose interests the cross-examination is conducted while ensuring it is conducted with proper regard for risk of distress to the witness and risk that the quality of the witness’s evidence might be diminished.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, this group of amendments addresses the role of a legally qualified representative appointed by the court to conduct cross-examination under Clause 63 in family proceedings or Clause 64 in civil proceedings. The amendments also address the need for the availability of legal aid for both parties in domestic abuse proceedings.
Dealing first with those amendments relating to the role of court-appointed legal representatives, in each such case a party, who typically, but not always, will be the perpetrator, is prohibited under the Bill from cross-examining a witness directly. In any such case, the court will have considered whether there is a satisfactory alternative means of enabling the witness to be cross-examined or of obtaining the evidence that the witness would have given without cross-examination. For the moment, I find difficulty in seeing exactly how that would work unless there were other witnesses who could give evidence to the same effect as the evidence that the witness might have given.
If the court cannot find alternative ways of getting the witness to give evidence before the court, it will have invited the party who, but for the prohibition, would have conducted the cross-examination to instruct a lawyer within a specified time to conduct the cross-examination instead. If the party does not instruct such a lawyer—usually, one supposes, because of financial constraints—the court will consider appointing a qualified legal representative
“to represent the interests of the party”
to conduct the cross-examination
“in the interests of the party”.
The proposed provisions are complicated but unobjectionable so far. However, I am concerned by the proposals, in both family and civil proceedings, that such an advocate
“is not responsible to the party”,
a point mentioned by the noble Lord, Lord Wolfson, in the last group but which he politely deferred for consideration to this one. I regard this as a dangerous precedent that is inimical to a fundamental principle of our court process, which is that the advocate owes a duty to his client, although that duty is at all times subject to the duty that the advocate owes to the court.
The analogy that applies to what is proposed here is with special advocates, who are appointed for cases before the Special Immigration Appeals Commission or various other cases where issues of national security are involved. In such cases, the reason why those appointed as special advocates do not carry a responsibility to the persons whose interests they represent is that they are specifically prohibited from disclosing to those persons the security-sensitive material that is being disclosed to them—in other words, the special advocates are effectively sworn to secrecy. In those national security cases the special advocates cannot take instructions upon the secret material disclosed to them, nor can they consider with those whom they represent how to deal with or respond to such material. In those circumstances they have an independence that is treated as precluding a responsibility to the persons whose interests they represent.
The position is quite different here. No issues of national security are involved. Secrecy is not an issue. No material is withheld from the party represented. There is no bar on full discussion between the advocate and that party. Indeed, if justice is to be done, there is an imperative for the advocate to take full instructions and to consider, in the light of the evidence and the party’s account of the facts, what questions should be asked.
The starting point has to be that the advocate owes a responsibility to the client and I see no reason to depart from that. The advocate should, for example, owe the client a duty of care, and a duty to take instructions accurately, read the papers carefully and approach the case on the basis of the client’s instructions. The advocate should be answerable to the client if he or she performs negligently, does not do the work, or fails to understand or appreciate the import of the evidence. Of course there will be some questions that it would be improper for the advocate to ask. In that event, it is for the advocate to advise the client and, if necessary, to seek the direction of the judge before putting such questions. It should be for the judge to determine what questioning is permissible and appropriate.
That is why my Amendments 122 and 127 would provide for the cross-examination to be conducted subject to
“such directions as the Court may give to protect the witness from significant distress or to prevent the quality of the witness’s evidence from being diminished.”
Those are the considerations that the court has to have regard to in appointing the advocate. In most cases, I do not believe that directions such as that are likely to be necessary. The intimidation of a victim in these cases usually arises from the presence of the perpetrator as cross-examiner and/or the style of his cross-examination. Once a sensitive advocate is conducting the cross-examination, attuned to the vulnerability of the witness and the advocate’s duty to the court, the risk of intimidation is reduced.
However, if there are areas where the advocate advises that particular questions or lines of questioning cross the line, that is usually on the ground that such questions are irrelevant or unhelpful. The party will usually accept the advocate’s advice, but if there are lines of questioning where the party persists in wishing to pursue questions that the advocate regards as inappropriate, it should be for the judge, not the advocate, to decide whether the questions may be asked. There is no good reason for removing the advocate’s responsibility to the client, fundamentally undermining that responsibility.
I have had the opportunity to discuss this issue with the noble Lord, Lord Wolfson, and I am grateful to him for the attention he has given to it. I understand the Government’s position to be that where lawyers are appointed to conduct cross-examination in circumstances such as these, such lawyers should, in a way, be independent, so that they may decline to ask questions which the party whose interests they represent wishes to have put to the witness. They should be able to say to the client, “I’m not putting that”, without having to be answerable to the client for that decision. At first blush I see the force of that, but on analysis it is quite unfair, because the party represented is in fact denied true representation, and such an arrangement blurs the function of the judge and the advocate, to which I referred. In proceedings of all types, judges will frequently rule questions out of order. That is all part of the trial process and I see no basis for changing it here.
Amendments 123 and 128 raise questions of assistance by court-appointed advocates and legal representation in domestic abuse proceedings more generally. They make broadly two points. The first is that an appointment of an advocate for the limited purpose of conducting a single cross-examination is unlikely significantly to enhance either the fairness of the proceedings or the chance of their leading to a just outcome—a point touched on in the last group.
The answer to this difficulty is that the court should be able to ensure that the advocate will remain in place for as long as needed in the proceedings to assist both the parties and the court to deal with the case justly, in line with the overriding objective, having regard, in family cases, to dealing with it justly and to any welfare issues involved. One can imagine the frustration that judges would feel when, having had the assistance of an experienced court-appointed advocate for the cross-examination of the victim, the advocate’s role in the case is brought to an end and the judge is left with the parties in court in as conflictual a situation as they were before the proceedings started and with no help in resolving it.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to the noble Lord, Lord Marks, for setting out the rationale for these amendments. As he said, I deferred my comments on the particular point of an advocate’s duty to this group because his amendments directly raise that issue. I am grateful to him for the discussions we had about this matter, as indeed we have had about several matters arising from the Bill.
Amendments 122 and 127 would have the same effect in relation to a qualified legal representative appointed by the court to conduct cross-examination in family and civil proceedings respectively. It is the Government’s intention that such a court-appointed representative is not responsible to any party. They are, in effect, appointed by and responsible to the court in relation to their conduct of the cross-examination, having regard to guidance issued by the Lord Chancellor in connection with this role under what we intend should become Section 31Y(1) of the Matrimonial and Family Proceedings Act 1984.
As I think the noble Lord, Lord Marks, accepts, the amendments would alter fundamentally the representative’s role by making them responsible to the party who has been prohibited from carrying out such cross-examination. While the tabled amendments contain safeguards to counter the resulting tension between being responsible to the prohibited party on the one hand and needing to protect domestic abuse victims on the other by requiring the representative to have regard to protective directions issued by the judge, this does not affect the Government’s view that, as a matter of principle, the representative who has been appointed by the court should not be responsible to the party. That is particularly the case when that party could have, but has not, appointed his own lawyer. Had he done so, a court-appointed lawyer would not have been required and the lawyer appointed by him would have owed him a duty.
Therefore, the Government do not want this to become a client-lawyer relationship. The advocate is appointed for only one function: to ensure that the best evidence is obtained fairly from the witness in cases where the party is prohibited from conducting the cross-examination by themselves. Altering this and introducing such a relationship between the party and the advocate would, in the Government’s view, be a mistake.
The rules pertaining to the advocate scheme will be set out in statutory guidance and relevant procedural rules. Consistent with what I have been explaining to the Committee, the focus will be on ensuring that the function of a cross-examination is carried out—that the witness is questioned on the evidence that they have provided. Before these provisions are commenced, we will work with relevant stakeholders to develop and finalise statutory guidance, to be issued by the Lord Chancellor, for the appointed legal representatives to assist them in discharging this role. We will work with the appropriate rule committees to develop suitable court rules and practice directions to provide a clear structure and process for the operation of these provisions.
For those reasons, we take issue with the proposal in the amendment. Although I hear what the noble Lord, Lord Marks, said about SIAC and court-appointed advocates there, those are completely different circumstances and there is no read-across from SIAC to these provisions. The way that the Bill is set out reflects the Government’s deliberate intention and the clauses have been designed with this in mind.
The framework for the provision of publicly funded legal representation is set out in the LASPO Act. While I have listened carefully to the arguments made on this point, both today and in previous discussions, I do not agree that we should mix the different purposes of LASPO and these clauses as has been proposed. As anticipated by the noble Lord, Lord Marks, I refer to the review that I mentioned in the last debate.
Amendments 123 and 128 relate to the provision of legal aid. Legal aid is available for family cases where there is evidence of abuse, subject to domestic violence, or child abuse evidence requirements, and the relevant means and merits tests. We have expanded the acceptable forms of evidence and removed all time limits on providing that evidence. As I have said, we are also reviewing the means test. The Government are clear that victims of domestic abuse must have access to the help that they need, including to legal aid. The review of the means test is assessing the effectiveness with which that test protects access to justice. As I said in the last debate, we are specifically considering the experience of victims of domestic abuse. I will not repeat the other points I made in that context in the previous debate.
However, legal aid may also be available through the exceptional case funding scheme, where a failure to provide legal aid would breach or risk breaching the ECHR or retained enforceable EU rights. As I have explained, the Bill includes provisions that give the court a power, in specified circumstances, to appoint a publicly funded legal representative to conduct cross-examination. Where a prohibition on cross-examination applies, the court would first consider whether there are alternatives to cross-examination and invite the party to appoint a legal representative to conduct the cross-examination. In circumstances where the party does not, the court considers whether it is in the interests of justice so to appoint. Therefore, publicly funded legal representation is intended to conduct the cross-examination, but not to go beyond it. That is the sole reason why the advocate is appointed.
In that context, we must appreciate the need to protect against unnecessary expenditure of public funds or alteration of the legal aid regime without a wholesale and proper examination of the ramifications of doing so. In circumstances where this provision for a publicly funded advocate is put in the Bill for a limited and specific—if I can still use that phrase—purpose, it would be wrong in principle for us to conduct a review of legal aid provisions in Committee.
I fear that I may not have been able to persuade the noble Lord, as I was not able to persuade him earlier, of the merits of the Government’s approach. I am sure he will tell me that I have not, but I hope that I have been able to explain the Government’s approach and thinking on this issue. In those circumstances, I invite him to withdraw the amendment.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, unquestionably the Minister—to whom I am very grateful, for both his engagement and his considered and careful response—is right about one thing, which is that he has not convinced me of the difference in responsibility to the client between court-appointed advocates and normal lawyers. I accept that the role of legal representative would be altered by my amendments, and that is all to the good.
One point made by the Minister can be considered in a way that he did not. It is a precondition to the appointment of a legal representative by the court that the client or party who would have conducted the cross-examination, but for the prohibition, should have been given the opportunity to instruct his own lawyer. That lawyer would have had full responsibility to the client in the normal way—full duty of care, answerable in negligence and everything else. Generally, Members of the House will appreciate that the reason that that condition is not often met—in other words, the client does not appoint a lawyer—is lack of funds, not that he or she, usually he, does not wish for the lawyer to have a responsibility to the client. There is very little distinction to draw between the two cases, apart from the fact that the rich client gets the lawyer and the poor client has a court-appointed lawyer.
The Minister referred to the safeguards that I built into the amendments in their directions to the judge—
“such directions as the Court may give to protect the witness from significant distress or to prevent the quality of the witness’s evidence from being diminished.”
There may be further room for discussion about those directions and the guidelines within which cross-examination by a lawyer with a responsibility to the client could take place. I will carefully read the guidance that he mentions by which court-appointed lawyers will conduct their cross-examinations.
I completely reject the Minister’s explanation that SIAC involves different issues, as a justification for removing the responsibility. It is precisely because SIAC special advocates and their appointment involve different issues that the responsibility is removed. I explained that in opening. That point does not seem to have been treated with full understanding.
Of course I will withdraw this amendment to enable further review. The point about legal aid is one of accessibility. We know that there is a review under way and I accept that we should not be reviewing this question in Committee, but the problem is one of evidential and financial accessibility. Until both parties can be represented in domestic abuse proceedings, it is difficult to see that proper representation will be achieved. With those points, I beg leave to withdraw the amendment.
85EA Prohibition of cross-examination in person: victims of offences(1) In civil proceedings, no party to the proceedings who has been convicted of or given a caution for, or is charged with, a specified offence may cross-examine in person a witness who is the victim, or alleged victim, of that offence.(2) In civil proceedings, no party to the proceedings who is the victim, or alleged victim, of a specified offence may cross-examine in person a witness who has been convicted of or given a caution for, or is charged with, that offence.(3) Subsections (1) and (2) do not apply to a conviction or caution that is spent for the purposes of the Rehabilitation of Offenders Act 1974, unless evidence in relation to the conviction or caution is admissible in, or may be required in, the proceedings by virtue of section 7(2), (3) or (4) of that Act.(4) Cross-examination in breach of subsection (1) or (2) does not affect the validity of a decision of the court in the proceedings if the court was not aware of the conviction, caution or charge when the cross-examination took place.(5) In this section—“caution” means—(a) in the case of England and Wales—(i) a conditional caution given under section 22 of the Criminal Justice Act 2003,(ii) a youth conditional caution given under section 66A of the Crime and Disorder Act 1998, or(iii) any other caution given to a person in England and Wales in respect of an offence which, at the time the caution is given, the person has admitted;(b) in the case of Scotland, anything corresponding to a caution falling within paragraph (a) (however described) which is given to a person in respect of an offence under the law of Scotland;(c) in the case of Northern Ireland—(i) a conditional caution given under section 71 of the Justice Act (Northern Ireland) 2011, or(ii) any other caution given to a person in Northern Ireland in respect of an offence which, at the time the caution is given, the person has admitted;“conviction” means—(a) a conviction before a court in England and Wales, Scotland or Northern Ireland;(b) a conviction in service disciplinary proceedings (in England and Wales, Scotland, Northern Ireland, or elsewhere);(c) a finding in any criminal proceedings (including a finding linked with a finding of insanity) that the person concerned has committed an offence or done the act or made the omission charged;and “convicted” is to be read accordingly;“service disciplinary proceedings” means—(a) any proceedings (whether or not before a court) in respect of a service offence within the meaning of the Armed Forces Act 2006 (except proceedings before a civilian court within the meaning of that Act); (b) any proceedings under the Army Act 1955, the Air Force Act 1955, or the Naval Discipline Act 1957 (whether before a court-martial or before any other court or person authorised under any of those Acts to award a punishment in respect of an offence);(c) any proceedings before a Standing Civilian Court established under the Armed Forces Act 1976;“specified offence” means an offence which is specified, or of a description specified, in regulations made by the Lord Chancellor.(6) The following provisions (which deem a conviction of a person discharged not to be a conviction) do not apply for the purposes of this section to a conviction of a person for an offence in respect of which an order has been made discharging the person absolutely or conditionally—(a) section 14 of the Powers of Criminal Courts (Sentencing) Act 2000;(b) section 80 of the Sentencing Code;(c) section 187 of the Armed Forces Act 2006 or any corresponding earlier enactment.(7) For the purposes of this section “offence” includes an offence under a law that is no longer in force.85EB Prohibition of cross-examination in person: persons protected by injunctions etc(1) In civil proceedings, no party to the proceedings against whom an on-notice protective injunction is in force may cross-examine in person a witness who is protected by the injunction.(2) In civil proceedings, no party to the proceedings who is protected by an on-notice protective injunction may cross-examine in person a witness against whom the injunction is in force.(3) Cross-examination in breach of subsection (1) or (2) does not affect the validity of a decision of the court in the proceedings if the court was not aware of the protective injunction when the cross-examination took place.(4) In this section “protective injunction” means an order, injunction or interdict specified, or of a description specified, in regulations made by the Lord Chancellor.(5) For the purposes of this section, a protective injunction is an “on-notice” protective injunction if—(a) the court is satisfied that there has been a hearing at which the person against whom the protective injunction is in force asked, or could have asked, for the injunction to be set aside or varied; or(b) the protective injunction was made at a hearing of which the court is satisfied that both the person who applied for it and the person against whom it is in force had notice.85EC Prohibition of cross-examination in person: evidence of domestic abuse(1) In civil proceedings, where specified evidence is adduced that a person who is a witness has been the victim of domestic abuse carried out by a party to the proceedings, that party to the proceedings may not cross-examine the witness in person.(2) In civil proceedings, where specified evidence is adduced that a person who is a party to the proceedings has been the victim of domestic abuse carried out by a witness, that party may not cross-examine the witness in person.(3) In this section—“domestic abuse” has the meaning given by sections 1 and 3 of the Domestic Abuse Act 2021;“specified evidence” means evidence specified, or of a description specified, in regulations made by the Lord Chancellor. (4) Regulations under subsection (3) may provide that any evidence which satisfies the court that domestic abuse, or domestic abuse of a specified description, has occurred is specified evidence for the purposes of this section.”Member’s explanatory statement
This amendment and the other amendments to Clause 64 in the name of Lord Marks of Henley-on-Thames would allow for the same prohibition of direct cross-examination in civil proceedings as that which is available in family proceedings.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, could I have a moment? I apologise for the delay. Following so closely on from my last speech, it was difficult to see where we were.
Having spent some considerable time this afternoon introducing my amendments in groups 1 and 4, I will be relatively brief in introducing this group. The amendments are intended to extend to all civil cases the same protection from direct cross-examination by a party as is to be afforded in family cases to victims and vulnerable witnesses where certain conditions are met.
The reason for my relative brevity in this group is that the principles upon which I contended in the first group that special measures should be available on the same basis for civil proceedings as for family proceedings apply with equal force to the prohibition of direct cross-examination. Therefore, I will not dwell on them again, save to make the point once again that there is no justifiable distinction to be drawn between the trauma likely to be caused to the vulnerable by direct cross-examination in civil cases and such similar trauma as may arise in family cases.
However, because the proposals are complex, the amendment is long. Clause 63 inserts new Clauses 31Q to 31U into the Matrimonial and Family Proceedings Act 1984, which broadly prohibit direct cross-examination in family cases in a number of circumstances. First, direct cross-examination by someone convicted of, cautioned for or charged with a specified offence—that is, an offence specified by the Lord Chancellor—of a witness who is a victim or alleged victim of that offence is prohibited and, importantly, vice versa. No victim or alleged victim of such an offence may directly cross-examine the perpetrator or alleged perpetrator. Secondly, direct cross-examination by either party of the other is prohibited in cases where one party has obtained an on-notice protective injunction which is in force at the time of the proceedings. Thirdly, in cases where specified evidence—that is, evidence of a description specified by the Lord Chancellor in regulations—is adduced that a witness in proceedings has been the victim of domestic abuse carried out by a party to the proceedings, that party may not directly cross-examine that witness. Correspondingly, where there is such evidence that a party to proceedings has been the victim of domestic abuse carried out by a witness, that party may not directly cross-examine that witness.
What is important is that these three categories of cases involve a prohibition that is absolute. That offers vulnerable parties and witnesses an assurance that there will be no direct cross-examination that offends against those provisions in any of the cases covered by the prohibition.
Finally, in other cases not coming within the first three categories of cases, the court may prohibit—that is, it has the power to prohibit—direct cross-examination of any witness by a party if the court takes the view that two conditions are met. The first condition is that the quality of the witness’s evidence would be likely to be diminished if direct cross-examination were permitted and improved if it were prohibited. The second condition is that the witness’s distress would be more significant under direct cross-examination by the party than were the cross-examination differently conducted. Before prohibiting direct cross-examination in such a case, the court must be satisfied that the prohibition would not be contrary to the interests of justice.
So while those provisions may be complex, they are, by and large, admirable, as they cater effectively for all circumstances where a vulnerable witness is liable to be directly cross-examined by a party to proceedings of whom she or he is plainly frightened, or where a vulnerable party may be put in the position of being obliged to cross-examine directly a witness who has in the past abused that party. It goes without saying that such a cross-examiner may be afraid of the consequences of putting questions to such a witness. But the important point to note is that the first three categories of case involve mandatory prohibition.
In civil cases, however, for a reason that once again I do not understand, there is no provision in Clause 64 of the Bill for the mandatory prohibition of direct cross-examination in any of the categories 1 to 3—that is, commissioner-specified offences, a mandatory injunction in force protecting a party, or evidence of domestic abuse by a party against a witness or a witness against a party. All that remains is the fourth category of protection: the discretionary and conditional protection offered in family cases that do not fall into the first three categories.
Again, I understand from the Minister—who has been keen on this issue, as on all others, to listen to noble Lords and to help—that the Government’s position is that civil proceedings lack the intimacy of family proceedings and so do not merit the same protection for vulnerable witnesses and parties. However, as I said in the earlier group, there are literally thousands of civil cases—as the noble Lord recognised—of many types involving vulnerable parties and witnesses, and exactly the same considerations apply in those civil cases as apply in family cases. I would suggest that the parties and witnesses involved in them should be entitled to exactly the same protection from direct cross-examination on the same basis as in family cases. I mention before closing that this view is shared by the Civil Justice Council, the Law Society, Refuge, Women’s Aid, and many others.
I invite the Government to reconsider whether they wish to stick with this illogical distinction or to instead come back on Report having ironed it right out of the Bill. I beg to move.
Lord Wolfson of Tredegar (Con)
My Lords, as the noble Lord, Lord Marks of Henley-on-Thames, has explained, these amendments intend to bring the provisions relating to prohibition of cross-examination in civil courts into line with the provisions on the same measure in family courts. As the noble Lord explained, we have covered some of the questions of principle already in earlier groups. He indicated that he was therefore going to be brief—as he indeed was—and I hope that both he and the Committee will not take it as any disrespect if I am equally brief in response, given that we have canvassed the points of principle already.
The noble Baroness, Lady Bennett of Manor Castle, described herself as a “support act”, an appellation with which I respectfully but firmly disagree. She spoke eloquently in an earlier group of her personal experience of seeing how court procedures operate in cases involving domestic abuse, and her contribution to this short debate has been equally valuable. I hope that the noble Baroness, Lady Fox of Buckley, will forgive me if I gently point out to her that she should not apologise for not being a lawyer. What is apparently, based on my short time here, a repeated cause for apology in this House is generally regarded as a badge of honour everywhere else.
Turning to the substance, let me explain that the approach we have taken in civil cases differs from that taken in family proceedings for good reasons. The clause dealing with banning cross-examination of vulnerable parties or witnesses stems from the report by the Civil Justice Council, to which the noble Lord, Lord Marks, also referred, and which I spoke about when commenting on the amendments to Clause 62.
The council recommended that the prohibition of cross-examination by a self-represented party should be extended to cover civil proceedings, thereby ensuring some parity with the criminal and family jurisdictions. Importantly, however, the Civil Justice Council cautioned that the ban or prohibition should not be absolute: rather, it should be left to the court’s discretion, given that, as I explained in an earlier group, the civil and family jurisdictions are very different as regards the types of cases, with the civil jurisdiction having a much wider range. As I also said earlier, those cases can have a much broader range of circumstances, where there is no prior close connection between the parties, as there would generally be in the family courts. We have therefore tailored our approach to allow for those differences, which is why the provisions in respect of cross-examination in the civil jurisdiction differ from those in family proceedings. I hope that that explains my thinking to the noble Lord, Lord Marks.
In response to points made by the noble Baronesses, Lady Bennett of Manor Castle and Lady Fox of Buckley, I say it is important that two things are fundamental. First, it is important that protection is available to all witnesses who need it—this was the point made by the noble Baroness, Lady Bennett. In response to the point of the noble Baroness, Lady Fox, the court will of course look at all circumstances in that regard. The overriding concern is to ensure that justice is done in the particular case, which is why leaving it to the discretion of the judge in an individual case to decide when a ban is necessary is based on an unlimited range of factors, including, obviously, the views of parties to the proceedings, any past convictions or the behaviour of parties during the trial. That is how we suggest this matter is best resolved.
Having said all that, I respectfully say that the noble Lord, Lord Marks, has put forward, as one would expect from him, a cogent and well-argued case for his amendment. As such, while we consider that the approach taken in the Bill in relation to the civil courts is well founded, and certainly not—to use a word adopted earlier in this debate—illogical, I hear the arguments he put forward and undertake to consider these amendments further ahead of Report. I will continue to listen with interest to any arguments made by him or others in this regard. Therefore, given this undertaking, I hope that the noble Lord will be content to withdraw his amendment.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, once again, I am grateful to all noble Lords who have spoken in this debate. I certainly agree with the noble Lord, Lord Wolfson, that the noble Baroness, Lady Bennett of Manor Castle, has proved herself much more than a support act. I say to her and the noble Baroness, Lady Fox of Buckley, that there is a crying need in these legal debates for experience from outside the law to inform our debates and bring the lawyers down to earth.
Many noble Lords may well have formed the view that the differences between the noble Lord, Lord Wolfson, and me are arcane legal arguments, in some senses—but we can only have those arcane arguments in a relevant way if we have real-world experiences to back them up. Some of these will be ours, but the noble Baroness, Lady Bennett of Manor Castle, not only clearly demonstrated how the principles that apply to cross-examination in civil proceedings also apply in family proceedings; she also graphically described the personal experience of witnesses in court proceedings. I challenge anyone to explain why that experience differs between the two types of proceeding, where witnesses are, or are liable to be, victims of domestic abuse and are vulnerable.
Although I greatly valued the contribution of the noble Baroness, Lady Fox of Buckley, I do not agree with her that this legislation or these and other amendments overstate the significance of vulnerability or trauma, when the evidence is serious and extensive of how deep vulnerability can go, how serious the trauma can be and how long-lasting it can be as a result of domestic abuse. That is the reason why the Government have brought this Bill; it is why it is widely welcomed around the House and the reason for the protections that are afforded to witnesses and parties in court proceedings.
I come to the noble Lord, Lord Wolfson, who frankly accepts the differences and parallels between us in respect of cross-examination in cases of special measures. I do not accept that a discretionary system in relation to the prohibition of cross-examination is an acceptable substitute. One of the principal reasons for this is that a party or witness has no assurance that there will be a prohibition in a discretionary case. She—or, in some cases, he—is totally reliant on judicial discretion having regard, as the Minister says, to all sorts of other factors, including previous convictions and all the circumstances of the case, in relation to knowing whether a prohibition of cross-examination will be extended. This means that such a witness or party is exposed to the risk that there will be direct cross- examination, which they may well be unable to face.
I am very grateful to the Minister for his undertaking that he will consider these amendments further; I know that that undertaking is given with every intention that he will do so. I and others remain completely open to discussing these amendments with him and refining them if necessary, but we hold the basic belief that vulnerable witnesses need protection from direct cross-examination on exactly the same basis in civil cases as is to be extended in family cases. Saying that, I beg leave to withdraw Amendment 124.
Baroness Meacher (CB) [V]
My Lords, I will speak principally to Amendment 130 in the name of the noble Lord, Lord Rosser. Parental contact is, of course, enormously important. Continued contact can be very dangerous both mentally and physically, but it can be beneficial. To make the right decision for each family is of the utmost importance, and sometimes people get it wrong. However, my support for the amendment is nuanced. I support proposed new subsection (4) but I add that a parent of either sex who has been found to exercise controlling or coercive behaviour should probably not have continued contact with the children. Such contact is likely to be used to continue controlling the partner. The child becomes a pawn in the fight with the partner.
I know an appalling example of this. Years after a divorce between an American dad and a British mum, the mother is required to pay to fly to the US five or six times a year to take her child to the father for contact. Because she cannot trust the father to allow the child to come back, the mother keeps the passport. This means that, after the week’s contact, she has to fly to the US and pick up the child. Even Covid was not accepted as a reason not to go, and the mother caught it on the plane back to the UK over Christmas. The child does not want to go to see her father but is being used as a pawn.
I accept that anecdotal evidence is of limited value; I am a great believer in research. However, I ask that, before Report, the presumption of parental contact be considered in the context of controlling or coercive behaviour and the results of relevant research on the issue.
The first part of the amendment assumes that the presumption of parental contact should not apply in relation to a parent where domestic abuse has affected the child or other parent. I support the implication that parental contact should be very carefully assessed in these circumstances, but the wording of the amendment could be nuanced before Report. I fully accept that it should not be presumed that parental contact would apply in these circumstances.
In my experience, even when domestic abuse against children as well as a partner has occurred, this should not necessarily rule out parental contact. This depends on the nature of the abuse, the ages and level of understanding of the children, the presence or absence of controlling behaviour—a key factor in the situation—and an overall assessment of the potential harms and benefits involved. I also broadly support the amendment in the name of the noble Baroness, Lady Jones, but I would qualify it on Report.
While again recognising the limited value of individual cases, I will illustrate with a personal experience my point that very serious domestic abuse and continued parental contact may be compatible and, indeed, helpful. The case I will cite involves abuse of children by a mother. As with abuse by a father, abuse by a mother can be extraordinarily damaging, and it can take the authorities a very long time to recognise it.
A male member of my family and his children suffered what can be described only as severe trauma over several years. It took Cafcass and the judicial system two and a half years to recognise that the person who was lying about her abuse of her children, and making up allegations, was in fact the mother. The authorities assumed at that time that mothers did not abuse their children. The very little eight year-old girl climbed up on a chair and unbolted the front door—she was always locked into her mother’s house—ran to the bus stop, managed to get on the right bus and get off at the right stop, and ran one mile through Tottenham to her dad’s house. Only then did the matter go back to court and the judge recognised that he and everyone else involved had made an appalling mistake. Having required the children to live with their mother for two and a half years, the lead social worker in the case finally made it clear that the children should only visit her but certainly not live with her.
The children have lived with their father ever since, but all have suffered from various levels of PTSD. They have had years of therapy, paid for the father, not by the state. Despite the abuse of the children and the damage to them, this father has encouraged contact with the mother. Once the children were safely placed with their father, he felt it was important for them to accept that their mum could not provide parenting but that she was, nevertheless, herself a victim. Her behaviour very much reflected her own experiences as a child. The children know that they cannot expect normal parenting, but they understand her mental state and therefore see her as a person with her own problems. In my view, they have benefited very much from the fact that they are not left with only the horrendous memories of their abuse as small children.
My personal experience, while only anecdotal, explains why I feel so strongly about the issue of parental contact. It is very complex yet hugely important. In conclusion, I support both these amendments but would like to see them adjusted before Report.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, throughout the preparation for proceedings on this Bill, I have been extremely impressed, and greatly assisted, by the work of Women’s Aid, the Victims’ Commissioner for London, the Victims’ Commissioner and many others who have worked tirelessly, with the grain of this Bill, to improve the response of us all, and the courts, to the scourge that is domestic abuse. However, with this amendment and the amendment to it, which many of them support, I have a number of concerns.
The amendment, as we have heard, seeks to disapply the presumption in Section 1(2A) of the Children Act 1989. I turn for a moment to two provisions of that widely admired legislation. As is well known, Section 1 provides:
“When a court determines any question with respect to … the upbringing of a child … the child’s welfare shall be the court’s paramount consideration.”
That overriding requirement lies at the heart of the Act, and judges and lawyers have long regarded it as the central canon of our law relating to children. The presumption under Section 1(2A) requires courts hearing proceedings, which include making orders about where children are to live and orders for contact between a child and their parents, to presume that
“unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child's welfare.”
That presumption reflects a wealth of evidence not mentioned so far in this debate, but it is generally in a child’s interest to have a relationship with each of their parents. However, that presumption is rebuttable, hence the words
“unless the contrary is shown.”
It is often the case that judges will make a decision, which generally they do not like to make but do, that given a history of domestic abuse by one parent of the other and the effect upon the child, contact with one parent will be withheld. The noble Lord, Lord Rosser, confirmed that the statutory guidance for judges ensures that they carefully consider whether contact is justified or should be withheld.
I do not suggest for a moment that all contact is safe. As many have said, cases of abuse and very serious abuse can arise during and around occasions on which contact takes place, as it can on other occasions. But I disagree with the noble Baroness, Lady Jones of Moulsecoomb, which I rarely do on these issues, that the presumption is treated by the courts as overriding. I agree with the point made by the noble Baroness, Lady Meacher, that different solutions may be right for different families. The question for the House is where that leaves us. My concern is that there will be cases where this amendment runs the risk of putting the interests of children behind the interests of parents.
However, the removal of the presumption in this subsection is not the only reason I am concerned about this amendment and the amendment to it. Subsection (4) of the proposed new clause would forbid the court from making any order for unsupervised access with a parent who is
“awaiting trial, or on bail for, a domestic abuse offence, or … involved in ongoing criminal proceedings for a domestic abuse offence.”
That prohibition would be absolute, and I think it would be wrong. It would forbid a child from having unsupervised contact with a parent which may, in particular circumstances, work against the best interests of the child, contravening the paramountcy principle I mentioned. It should be for the judges to determine what the circumstances in each case demand. The noble Baroness, Lady Meacher, pointed out that circumstances differ and the extent to which they do.
Furthermore, the amendment is not limited to cases involving domestic abuse against a parent of the child concerned. Section 9(8) of the Children Act referred to in subsection (4) of the proposed new clause is concerned with allegations of “a domestic abuse offence.” The subsection would prohibit, for example, a court making an order for unsupervised contact between a father and his older child because the father had been accused of a domestic abuse offence committed against a new partner who was not the child’s mother, irrespective of any relationship between the new partner and the child. Such a prohibition would be grossly unjust, depriving the child of his or her relationship with the father. It would again run entirely counter to the paramountcy principle.
What is more, this amendment only requires, before unsupervised contact is prohibited, that allegations have been made. They need not have been established; they might be wrong or malicious. The noble Baroness, Lady Meacher, mentioned a case where they were indeed wrong. The noble Baroness, Lady Gardner of Parkes, mentioned a case where allegations might be malicious. This provision runs the risk of inviting unwarranted allegations of abuse calculated to destroy a child’s relationship with a parent against whom nothing has been found, on the basis of allegations that may be irrelevant to the welfare of the child. A family judge would determine whether such allegations of abuse were made out and would do so on the basis of evidence adduced before the court, not on the basis of unproved allegations. This amendment involves, to that extent, a denial of justice and a denial of justice to children.
I firmly believe that judicial discretion should not be withdrawn in this sensitive area of family life. There are many cases where abusive behaviour by one parent towards another entirely justifies the withdrawal of contact between the abusive parent and the child. But there are other cases, as the noble Baroness, Lady Meacher, recognised, where withdrawing contact is inimical to the welfare of the child.
Improving the way in which family courts understand and respond to domestic abuse of all sorts is of the greatest importance, but this amendment is too prescriptive in its statement and its outcome. Removing the power of judges to act in the best interests of the child, on whose behalf they daily make very difficult decisions, is not the way to achieve the aims of this Bill.
Lord Randall of Uxbridge (Con) [V]
My Lords, at the outset, I was attracted to these amendments. As a lay person, listening to the noble Lord, Lord Rosser, with his usual measured way of introducing amendments, and the noble Baroness, Lady Jones of Moulsecoomb, I found the arguments compelling. But as I listened, I thought that although there is sometimes merit in having us lay people who have no knowledge of the law involved—as was mentioned in the previous group—the arguments showed why it is so important to have people who have experience with what the laws we are making would mean in practice in the courts. Having heard the arguments of the noble Lord, Lord Marks, in particular, and the noble Baronesses, Lady Meacher and Lady Gardner of Parkes, and believing that the intentions behind these amendments are worthy, because it seems self-evident that this must be done, I am not convinced that this way of dealing with the issue will be beneficial for the people we want to protect—the children.
Of course, those chilling statistics of where children have been killed by an abusive parent, after this has been discovered, are very concerning, but I am not necessarily sure that passing any of these amendments would completely rule it out. I think we all agree, those of us lucky enough to have happy families and know other happy families, what the harm would be for those who need it and that parental involvement is paramount.
Baroness Warwick of Undercliffe (Lab) [V]
My Lords, I will speak briefly on these amendments. It is a great pleasure to follow the noble Baroness, Lady Verma, and indeed all the speakers in this thoughtful and very practical debate.
I support Amendments 131 and 133 in particular. On Amendment 131, the Minister has already said that under no circumstances should the address be disclosed of the refuge in which the sufferer of domestic abuse resides, but we have heard from the noble Baroness, Lady Bertin, of the extraordinary lengths to which perpetrators will go to stalk or otherwise pursue their victims. We have also learned of not only the physical danger to which this exposes the sufferer but the mental fear and anguish that it perpetuates.
The Government accept the principle that an address must not be disclosed in any circumstances because of the potential appalling consequences, but unless non-disclosure is a legal imperative captured in the Bill, embedding this principle and maximising compliance with it will be weakened. Ambiguity and thoughtlessness in releasing a victim’s address will be allowed to prevail, with all the potential consequences we know that could reap.
The formal procedures of a court are intimidating enough for any citizen to think at least twice before embarking on a judicial case. How much more intimidating it must be for those who know that their very life might depend on the anonymity of their whereabouts. If they have any doubt that they can rely on the court to protect them, that in itself could be a deterrent against proceeding with their case. Putting this amendment in the Bill would be an enormous reassurance to a victim, and a greater discipline and constraint on those who could potentially release their address.
On Amendment 133, it is worth reminding ourselves of the amount of evidence we have heard about just how traumatic survivors of domestic abuse find the court process. One cannot help thinking that some of those procedures were designed, even if not intentionally, to daunt or dishearten those who did not have the greatest confidence either in themselves or in the merits of their case being understood and accepted, especially as waiting times are as long as they are. Those who have had their confidence and courage systematically beaten out of them might be forgiven for thinking that the courts are not there to help them.
From reading the debate in the other place on the Bill, I was struck in particular by a comment from Peter Kyle MP, a long-time campaigner on these issues. Having recounted the awful experiences of some of his constituents, he went on to say that in his lobbying for change
“Minister after Minister told me that a cultural change was needed in the … justice system.”—[Official Report, Commons, Domestic Abuse Bill Committee, 11/6/20; col. 271.]
The evidence submitted to us in the briefings from Refuge and other organisations suggests that there are too many such instances of judges and other professional workers in the judicial system failing to understand the dynamics of domestic abuse and so failing the survivor, who has often made a brave and fearful decision to make the accusation and come to court in the first place.
Most organisations and systems must at some time accept the need for cultural change, and it is never easy. I hope that this proposal is not dismissed on the basis that such soft skills do not belong in a court of law. The courts have come a long way but, on the evidence of the many cases that we have been told about in letters and briefings, they clearly have further to go. Putting this requirement in the Bill would be a real signal of intent to make that change. I noted what the noble and learned Baroness, Lady Butler-Sloss, said, and if the Minister is inclined to agree with her, I hope that he will take personal responsibility for ensuring that the necessary training is undertaken.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, I broadly welcome this group of amendments. Although I have concerns about some of them, which I will explain, and it may be that the precise drafting of some would benefit from revision before Report, it is clear that they are drafted and tabled with a view to responding to the harsh plight of victims of domestic abuse as they go through the court system. If they have a common thread, it is about understanding and responding to the vulnerability of victims and the trauma of the abuse that they have suffered.
I will make a few points on each of the six amendments. On Amendment 131, it is plainly right that the addresses of refuges should be kept confidential. The whole point of a refuge is to enable victims of domestic abuse to feel safe from their abusers. It is of the essence that victims should feel confident that they will not be sought out and found by abusive former partners. Often such victims are with children, and the trauma that they have suffered at the hands of their abusers has left them not only protective, but scared for their own futures and those of the children who have come with them to the refuge. Courts must guard against giving refuge addresses away.
We have heard that abusers have traced victims to refuges as a result of carelessness within the court system, which has sometimes had serious results. The noble Baroness, Lady Bertin, gave us a harrowing example. It may be that the provisions of the amendment are slightly too wide, and that the assumption that refuges can be expected to have both an office and a residential address is too optimistic, as my noble friend Lady Hamwee pointed out, but the principle is one that I hope the Government will welcome.
Amendment 132 is designed to ensure that courts dealing with different cases of domestic abuse involving the same victims share information with each other. This is to enable greater co-operation between courts and to ensure that where, for example, criminal proceedings and family proceedings concerned with the same victim are continuing alongside each other, each court will know about the proceedings in the other. Again, the amendment may need some redrafting to achieve clarity, but the principle is right. However, I wonder whether an enlarged or parallel provision should be introduced requiring a similar exchange of information between courts involving the same abusers, as this amendment deals with information about the same victim.
Amendment 133, concerned with training for the judiciary and professionals in the family court, is the most important of these amendments, as my noble friend Lady Hamwee, the noble Baroness, Lady Helic, the noble Lord, Lord Rooker, and others, have reflected, though I share the hesitation of the noble and learned Baroness, Lady Butler-Sloss, about enshrining this in primary legislation. Judges generally try to keep up to date with evidence about domestic abuse and try hard to apply the law in accordance with the evidence that they hear, putting aside, as far as they can, their own prejudices. However, we must recognise that most judges and legal professionals come from a world that differs dramatically from the world that is home to many of the litigants who come before them: victims, abusers, witnesses and others. The more training that judges and professionals receive in understanding domestic abuse, the better.
The amendment as drawn does not define how the training is to be established, except that it is to be in consultation with the domestic abuse commissioner. On reflection, I think that is right. We have a commissioner- designate who is genuinely expert in this field and dedicated to achieving an improved response to domestic abuse. I believe that training should also encompass learning to recognise and respond to vulnerability and to take into account the effect of abuse-related trauma on the ability of witnesses and parties to give evidence before the court, and the quality of the evidence likely to be received. I would go a little further than the amendment and require that, before any circuit or district judge sits to hear a family case, they must have completed mandatory training in domestic abuse, as arranged pursuant to the amendment.
I regard the training Amendment 133 as more likely to be effective than Amendment 134, which would require the court to consider the vulnerability of victims of domestic abuse, who are witnesses and parties to proceedings, and the impact of trauma on the quality of the evidence that they give. This is in tune with the objects of the Bill and no one could disagree with the motivation behind it but, generally in domestic abuse cases, judges try to consider the vulnerability of witnesses and parties, and the effect of trauma. Many, even most, succeed in so doing. I hope that the view I have just expressed does not reflect complacency. It reflects the general view that judges are trying to do justice, with regard to vulnerability, sensitivity and the circumstances of particular cases. Such judges benefit enormously from training but, for them, I expect the amendment is unnecessary.
Secondly, if judges fail properly to consider vulnerability and the impact on evidence from the trauma of abuse, that stems from a lack of understanding or training to which the training amendment is directed. It cannot be properly addressed by a bare statutory requirement imposed on judges to consider these matters.
Finally—and I hope I will be forgiven some cynicism—there is the problem well known to lawyers that, if a statute requires a judge to consider two or more factors, call them A and B, the judgments of the less good judges will always state, boldly but sadly inaccurately, “I have fully considered factor A and factor B. In the circumstances, I have concluded”, and the conclusion follows, however flawed it may be, in its unappealable compliance with the statute, which is matched only by its lamentable lack of understanding.
I agree with the principle of Amendment 135 on the transparency of court arrangements, which is that every litigant who is unhappy with the result of a court hearing should leave court with full information about the appeal process. However, I do not believe that that should go into the judge’s ruling. Often, although not always, rulings in family cases are given in oral judgments delivered at the end of hearing the case. They are very important in setting out the judge’s reasoning, particularly for the Court of Appeal, but also for the parties. I have never been completely confident that the parties, who are generally shell-shocked by the proceedings, listen to every word that the judge says.
It should be incumbent on the court administration to ensure that a document setting out the appeal process, in clear terms, is given to every party and possibly others who want it, on departure from court at the end of the day. It should contain details for the court and a helpline equipped to assist with the relevant information. As the noble Lord, Lord Rosser, said in his introduction, this is a probing amendment and it could easily be met by ensuring that this information is available through administrative functions in the court.
Amendment 136, the final amendment in this long and diverse group, would impose an absolute rule on costs of contact. I find this difficult because it appears to be a provision dealing with extraneous financial matters in the context of contact, and that is something that the courts try not to do. I cannot see, for example, why a court that decided that contact between a parent and child was appropriate in the particular circumstances of a given case should be forbidden in some circumstances, though they may be rare, from directing that the other parent pay for or contribute to the cost of arrangements for that contact on the sole ground that the other parent has made an allegation of domestic abuse, or even on the ground that the parent with whom the child is to have contact has in fact been found guilty of domestic abuse.
Baroness Bertin (Con)
My Lords, I give my strong support to Amendment 137. I also thank the noble Baroness, Lady Newlove, for her determination and commitment on this issue and thank the Centre for Women’s Justice for all its work. I thank the Government for listening. It is right that non-fatal strangulation, for all the reasons that we have just heard, will be a new stand-alone offence. It is very encouraging that we are discussing this issue with a shared understanding. However, I hope the Government will listen again and agree that the Domestic Abuse Bill is the natural home for this amendment. The Bill has finally reached the stage where we can look forward to Royal Assent in the not too distant future. Let us take the opportunity and place this offence on the statute book now.
Having the offence in this Bill sends a powerful message that this kind of offending is concentrated in domestic abuse cases above all others. A rural police force in England selected 30 cases of strangulation at random from within its data. It found that all were cases of domestic abuse. That is not to say that there are not other situations where this form of violence is used—primarily against women and we do not forget them either—but the majority are domestic abuse cases, where strangulation is part of a wider campaign of terror and control that victims and survivors endure day after day.
It is important for our criminal justice agencies to understand this offence in its proper context as a well-established aspect of domestic abuse. This will help them recognise it and take a robust approach. It will aid increased training and better investigation techniques. We have heard that about 20,000 women suffer from this form of abuse. It is frightening, traumatic and deeply harmful. The noble Baroness, Lady Newlove, was right to set out exactly what it means. It was not easy to listen to but we need to understand it.
As a society, we have been blind to this crime for far too long. We are now finally shining a light on it and need to protect those women as soon as we can. I lost my own cousin to fatal strangulation and I know that a greater understanding of non-fatal strangulation will save lives. We must not delay this.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, I join everyone who has spoken in thanking the noble Baroness, Lady Newlove, for bringing forward this amendment, for the tireless way in which she has campaigned for it and for her powerful opening of this debate. I also want to record how grateful I and other noble Lords are for the careful and sympathetic way in which the noble Lord, Lord Wolfson, and the noble Baroness, Lady Williams, have listened to the arguments and responded to this amendment since Second Reading.
I believe there is a clear consensus that the absence of a distinct offence of non-fatal strangulation is a serious defect in our criminal law, which allows many cases of appalling attacks to be treated with far too little seriousness—undercharged and insufficiently punished. We have long had an offence outlawed by Section 21 of the Offences Against the Person Act 1861 of attempting to choke, suffocate or strangle in order to commit an indictable offence. However, not only is that Act now seriously in need of replacement, but that offence does not answer the need because it criminalises strangulation only with an intent to commit an indictable offence, so leaving untouched the violent strangulation with which this amendment is generally concerned. As I said at Second Reading, this horrible form of violence is appallingly common and devastating in its physical and psychological effects. Yet because the injuries are difficult to prove, prosecutions, where they happen, are often for common assault, or ABH at most, demonstrably understating the severity the violence involved. We have heard from the noble Baroness, Lady Newlove, and all other noble Lords who have contributed of the appalling statistics and the overwhelming evidence that demonstrate how serious this form of domestic abuse is, how often it stems from or leads on to further violence, and how a history of strangulation is a tragic, but regular, predictor of later homicide.
I shall say a little about the legal aspects of the amendment and its drafting. In particular, I shall address the points raised at Second Reading by the noble Lord, Lord Anderson of Ipswich, who unfortunately cannot speak today but invites me to mention his continued strong support for the amendment and his gratitude to the Government for their commitment to taking the best possible technical advice to ensure its effectiveness.
The first point raised by the noble Lord was whether we ought to have a specific offence of non-fatal strangulation at all or whether a generic offence not confined to strangulation or suffocation would do as well. For the reasons so ably set out so far in this debate, strangulation and suffocation raise a particular issue because the violence involved is extreme and the consequences in terms of abuse and terror for the victims so serious, yet often there are very limited physical injuries to support a prosecution as a result. The New Zealand Law Commission, in its 2016 report Strangulation: The Case for a New Offence, accepted the case for a specific offence and recommended this approach. I understand that the former criminal law commissioner at the Law Commission, Professor David Ormerod, who generally favours generic offences rather than specific ones and so recommended in his 2015 on the reform of the 1861 Act, nevertheless sees a strong case for a new specific offence of non-fatal strangulation. I agree. As to the actual acts constituting strangulation or suffocation, the amendment closely follows the New Zealand legislation, the Family Violence (Amendments) Act 2018, which implemented the Law Commission’s recommendation, and there are no reports of any significant difficulties with the definition of which acts are required.
I turn to whether a new offence should be limited to the context of domestic abuse. Indeed, as the noble Baroness, Lady Newlove, explained, we are considering two versions of this amendment, one limited to domestic abuse and one general. My firm view is that the new offence should be generally applicable, as in Amendment 137, even though the evidence outlined by the noble Baroness, Lady Newlove, establishes firmly that this is generally an offence involving domestic violence. However, I fully agree with the noble Baroness that the new offence of non-fatal strangulation should not be confined to the domestic context, particularly not as limited by the constraints of the definitions in the Bill, under which a similar intentional act which did not meet the definition of domestic abuse would be left to the inadequacies of the pre-existing law.
I turn next to the difficult question of intent. The amendment as drafted now provides that A commits the offence if he “intentionally strangles or suffocates” B. In my opinion, the use of the word “intentionally” is correct and appropriate. It makes it a requirement that the prosecution demonstrate that the act of strangulation or suffocation—that is, blocking the victim’s nose, mouth or both, or applying pressure to the victim’s throat, neck, chest or more than one of these—is intentional. It does not require that the offender be shown to have a further intent of causing any particular type of harm to the victim. The necessary intention is what lawyers call a “basic intent”, rather than a “specific intent”. In my view, that is right because it is difficult to see an offender doing any of these acts without either intending to cause injury or being completely reckless about whether such injury is caused. It should not be a necessary element of the offence that the exact state of mind should have to be proved, and this follows the New Zealand Law Commission’s report.
However, when the New Zealand Parliament implemented that recommendation in that report, the word “intentionally” was supplemented by the words “or recklessly”. In my view, the addition of possible recklessness to the basic intent adds nothing, because it is hard to see the acts involved in strangulation or suffocation being unintentional. I suggest sticking to the word “intentionally” as included in the amendment.
The question also arises whether consent should be a defence against the new offence. In my view, it should not, and the removal by Clause 65 of the defence of consent to the infliction of serious harm for the purpose of sexual gratification points the way. I can see no merit in permitting a defence of consent, which would doubtless lead to frequent court disputes when the defence case would involve an assertion that the victim consented to her own strangulation. I cannot believe that that would be right.
On the last question raised by the noble Lord, Lord Anderson, the sentences proposed lie somewhere in the middle of the range applicable to similar offences around the world. They seem to me to fit in with our general sentencing guidelines. Setting maximum sentences is always an art and not a science. The sentences proposed are, of course, maximum terms of imprisonment, and actual sentences in practice always vary with the facts. However, this amendment seems to me to have the tariff about right.
Finally, our Law Commission and Professor Ormerod, with his wide experience in the field, have both been consulted as to the formulation of a new offence, and will continue to be so. Professor Ormerod has expressed his willingness to assist the Government and the House with further consideration of the details of a new offence before Report stage. I express the hope that the Government and we will take advantage of that generous offer.
Baroness Redfern (Con) [V]
My Lords, I thank my noble friend Lady Newlove for her powerful introduction to this standalone offence. I am pleased to have the opportunity to take part in the debate and to give my support to the many victims who have endured violence—for them, it has been a long wait for justice.
I rise to speak to this amendment, which addresses the offence of non-fatal strangulation or suffocation whereby a person commits such an offence if they intentionally strangle or suffocate another person but it does not result in death. This must be recognised as a distinct offence in its own right and not just treated as common assault, as has happened in so many cases, particularly given that many victims display hardly any external signs of abuse even after serious assault. Crimes of strangulation and asphyxiation are the second most common method, after stabbing, of killing in female homicides. The amendment would also help the police identify the harm which has occurred, thereby enabling them to respond appropriately to this method of domestic abuse. This offence should be embedded in the Domestic Abuse Bill and should carry a maximum term of imprisonment of seven years.
Non-fatal strangulation is used as a weapon to exert power and control and to instil fear in an abusive relationship. Most victims experience a real fear that they will die, and many go on to suffer long-term mental health issues.
Given the aims of the Bill, this amendment provides us with a real opportunity to save lives. We must not miss this opportunity to introduce the offence of non-fatal strangulation or suffocation in the UK. We must do all we can to protect victims and help them to recover and rebuild a life free from abuse.
“Controlling or coercive behaviour by persons providing psychotherapy or counselling services
(1) A person (“A”) commits an offence if—(a) A is a person providing or purporting to provide psychotherapy or counselling services to another person (“B”),(b) A repeatedly or continuously engages in behaviour towards B that is controlling or coercive,(c) the behaviour has a serious effect on B, and(d) A knows or ought to know that the behaviour will or may have a serious effect on B.(2) A’s behaviour has a “serious effect” on B if—(a) it causes B to fear, on at least two occasions, that violence will be used against B, or(b) it causes B psychological harm which has a substantial adverse effect on B's usual day-to-day activities.(3) For the purposes of subsection (1)(d) A “ought to know” that which a reasonable person in possession of the same information would know.(4) In proceedings for an offence under this section it is a defence for A to show that— (a) in engaging in the behaviour in question, A believed that he or she was acting in B’s best interests, and(b) the behaviour was in all the circumstances reasonable.(5) A is to be taken to have shown the facts mentioned in subsection (4) if—(a) sufficient evidence of the facts is adduced to raise an issue with respect to them, and(b) the contrary is not proved beyond reasonable doubt.(6) The defence in subsection (4) is not available to A in relation to behaviour that causes B to fear that violence will be used against B.(7) A person guilty of an offence under this section is liable—(a) on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both;(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine, or both.”
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, this amendment, in my name and the names of my noble friend Lady Jolly and the noble and learned Lord, Lord Garnier, addresses an extremely serious issue that affects far more lives than noble Lords might have expected. Psychotherapists and counsellors are not in any way regulated by law. In opening a debate on this issue on 2 March last year, my noble friend Lady Jolly pointed out:
“The terms ‘counsellor’ and ‘therapist’ are not protected. All of us could call ourselves such”.
She also pointed out that there is
“no assurance of the level of training or competence … nor a redress system to access should something go wrong”.—[Official Report, 2/3/20; cols. 468-69.]
We should all be clear that this amendment is not a criticism of the work undertaken by many straightforward, honest and understanding therapists and counsellors up and down the country, who are dedicated to helping their patients or clients address difficult issues in their lifw and get through particularly troubling periods. Nothing I say is intended to disparage their commitment or undermine their work. However, it is a tragic reality that a combination of this lack of regulation and the cruel techniques of coercive control adopted by some who offer so-called therapy and counselling services leads to many—mostly young—lives being, quite literally, ruined.
There is a pattern to these cases of abuse: charlatan therapists or counsellors secure clients—usually young and always troubled people—and proceed, over a period, to take over their life. Sadly, the typical case involves such so-called counsellors persuading their clients, quite without foundation in fact, that they have been dreadfully wronged or abused by their parents or families during their childhood. They generally implant entirely false memories in those clients. As the clients come to believe, under an insidious form of persuasion, that these false memories represent reality, they are led to blame their parents and families for all that has gone wrong in their life and all that troubles them. In this way, the clients involved are gradually alienated from their parents and families in a sinister process of coercive control.
The well-known and well-documented phenomenon of transference, originally explored by Sigmund Freud in the 1890s, plays its part in this sad process. It involves the clients projecting on to the therapist or counsellor feelings that they originally held towards a parent or other important figure in the client’s early life. The clients’ parents and other close family and friends are supplanted by the counsellor in the client’s affections by a learned dependence on them.
In our debate last March, I said that such clients are
“brainwashed by unscrupulous and controlling individuals. These charlatans play on their clients’ suffering, deluding them into a false belief in their treatment”—[Official Report, 2/3/20; col. 477.]
Everything that I have read and learned since that debate in relation to this issue and in preparing for this debate has strengthened my concern not only that that description was fair but that I underestimated the extent of the problem.
These issues have been widely recorded in the press and I will not detail them now, but I will repeat a question posed in the Daily Telegraph not long ago:
“What made two seemingly happy young women from loving homes sever all contact with their families and friends, renounce their inheritances and vanish into thin air?”
The journalist investigated how
“a self-styled ‘personal development coach’ digging for ‘forgotten’ childhood memories opened a door to catastrophe.”
The article went on to describe how a rogue counsellor had ruined two young lives in the way I have described, pointing out that there had been absolutely nothing the courts could do about it, given that the clients were adults—although they were young. The law offers no protection whatever for the victims of what is so clearly abuse by coercive control. The fact that such counsellors often charge their clients substantial fees, as the rogue counsellor did in those cases, only serves to make the matter worse.
Our amendment would introduce the following offence:
“Controlling or coercive behaviour by persons ... providing or purporting to provide psychotherapy or counselling services”.
The proposed offence is closely modelled on Section 76 of the Serious Crime Act 2015, which covers “controlling or coercive behaviour in an intimate or family relationship”. The definition of coercive and controlling behaviour in that Act is mirrored in this amendment, and the definition of the required relationship for the Act is mirrored in Clauses 1 and 2.
As the noble Lord, Lord Astor of Hever, who would have liked to speak today but is unable to do so, said when we debated this issue last March:
“Section 76 of the Serious Crime Act covers domestic abuse. The Government accept that individuals can be coercively controlled, and they have rightly made it illegal for a spouse, partner or parent to coercively control somebody with whom they have a relationship—that is an imprisonable offence. However, in the case of coercive control, the law does not apply equally to everyone. A person coercively controlling their daughter would be breaking the law, but the same person coercively controlling someone else’s daughter is not covered by the law. There does appear to be a gap in the law, so will the Government look into this?”—[Official Report, 2/3/20; col. 472.]
The logic of that question is inescapable. This amendment is directed to filling the gap identified by the noble Lord, Lord Astor. The gap has been filled by legislation in France, Luxembourg and Belgium. The French litigation broadly criminalises persistent or repeated pressure on a person which abuses a vulnerable person’s weakness or abuses a person in a state of psychological dependency resulting from serious or repeated pressure or techniques used to affect their judgment in a way which is seriously harmful.
I have been grateful for the support of the noble Lords, Lord Astor of Hever, Lord Fairfax and Lord Dannatt, and my noble friend Lord Alderdice and others, who have not been able to speak tonight. Numbers of noble Lords have told me that they know families and young people who have fallen victim to the actions of charlatan psychotherapists who would be liable to be prosecuted for the new offence proposed by this amendment.
My hope is that the Government will agree to legislation reflecting this amendment and that it will be supplemented in the future by provisions requiring psychotherapists and counsellors to be licensed and regulated, with a register of qualified members, recognised qualifications and a clear statement of ethical standards. Meanwhile, serious cases where charlatan psychotherapists and counsellors are guilty of coercive control which is plainly abusive should be met by their prosecution for a criminal offence, as set out in this amendment. I beg to move.
Lord Garnier (Con) [V]
My Lords, I apologise for not taking part on Second Reading, although I have read the Official Report. I also apologise for keeping my noble friend the Minister, new to his job, a bit longer at the crease.
Amendment 141 proposes a new clause that is within the scope of the Bill, but its value is not dependent on the Bill. The wording and effect of Amendment 141 is self-explanatory but, if it needed any further elaboration, the noble Lord, Lord Marks of Henley-on-Thames, has just provided it in his excellent speech. I cannot improve on what he said, but now is the moment when Parliament must at last legislate to outlaw the quack counsellors who predate on vulnerable people through controlling or coercive behaviour, and to provide some sort of protection to their victims or intended victims.
I have been concerned about these quacks and trying without success to get the Government to legislate for some years. I worked with Oliver Letwin and Tom Sackville, two former Ministers, as well as parliamentary counsel and Ministry of Justice officials with the support and encouragement of David Cameron, who had a constituency interest in the matter. I spoke about these quacks at Report on the Modern Slavery Bill in November 2014 and the Serious Crime Bill in February 2015 when I was a Member of Parliament, and then again in your Lordships’ House on 2 March 2020 in the debate on the unregulated treatment of mental health, initiated by the noble Baroness, Lady Jolly. Now, thanks to the noble Lord, Lord Marks, the noble Baroness, Lady Jolly, again, and the other contributors to this debate—as well as my noble friend Lord Astor of Hever, who spoke in the debate last March about the Serious Crime Act—we are making real progress.
We have laws to protect children and those under a mental incapacity through intellectual impairment, disability or the effects of old age. We can prosecute those who dishonestly take old and frail people’s money, but we leave unprotected adults who may succumb to pressure exerted on them by others of malevolent intent because their exploitative activities currently do not come within the criminal law.
From the outset, I have had in mind some young, adult women whose experiences were brought to my attention by their parents and families. In essence, they had been brainwashed or suborned by quack counsellors. They persuaded these young people to break off all contact with their families, infected them with false memories and got them to pay fees for the so-called counselling. Some of these young women were well-off and suggestible but all of them, for no apparent reason, broke off all contact with their families.
As the noble Lord, Lord Marks, has just said, France, Belgium and Luxembourg have laws to criminalise the behaviour of predatory charlatans who exploit others in a state of emotional or psychological weakness for financial or other gain. It must be assumed that their laws do not conflict with those articles of the ECHR that protect the right to private and family life, the right to freedom of expression and association, and the right to freedom of thought, conscience and religion. To take the French example, in that jurisdiction it is an offence punishable by imprisonment and very heavy fines to abuse the ignorance or state of weakness of a minor or of a person whose particular vulnerability due to age, sickness or infirmity, to a psychological or physical disability or to pregnancy is apparent or known to the offender. It is also an offence to abuse a person in a state of physical or psychological dependency resulting from serious or repeated pressure or from techniques used to affect his judgment in order to induce the minor or other person to act, or abstain from acting, in a way seriously harmful to him.
Amendment 141 is clearly different but, I believe, as useful. One way of considering whether the proposed defence in Amendment 141 would work is to ask oneself the following questions. Would it be prosecutable in theory and in practice? Could each of the elements of the offence be proved in a real-life example? Would the measure deal with the mischief that was identified, and would it catch no one else? The answer to those questions is yes. How would it affect partners, husbands, wives, teachers, gurus, salesmen, priests and employers, all of whom are likely to have power and influence? It need not do so. Would it allow the mentally capable who want to give away their fortunes and leave their families to do so? Of course it would. Would it make sufficiently clear what was criminal behaviour and what was not? Would it comply with the European Convention on Human Rights? Yes, it would. What effect would it have on religious freedom, or freedom of expression or association? In my view, none at all.
The victims of these bogus therapists have been waiting far too long for Parliament to help them. The amendment is humane and practical, and it has nothing whatever to do with party politics. If the laws of France, Belgium and Luxembourg can protect the people that this amendment seeks to protect, the law of England can and ought to do so as well. Amendment 141, or something like it, should be added to the Bill.
Counter-Terrorism and Sentencing Bill
Lord Marks of Henley-on-Thames ExcerptsTuesday 26th January 2021
(3 years, 3 months ago)
Lords ChamberRead Full debate Counter-Terrorism and Sentencing Bill 2019-21 View all Counter-Terrorism and Sentencing Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 129-I Marshalled list for Committee - (21 Jan 2021)
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, in opening this debate, on the first day of Committee on this Bill, it might be sensible for me to outline our approach. This is particularly so, because I was not able to be present for the Second Reading debate on 21 September—for which I apologise but I was involved in a court hearing.
All on these Benches—and, I believe, all across the House—regard terrorist offences as particularly serious and deserving of the highest condemnation. This Bill was a response to two appalling terrorist attacks. The first was the attack in and outside Fishmongers’ Hall in November 2019, when Usman Khan, who had been released on licence after serving half of a 16-year sentence for terrorist offences the previous December, stabbed five people, killing two of them, after attending a prisoner rehabilitation programme, before being shot dead by police. The second was the attack on Streatham High Road in February last year, when Sudesh Amman, a terrorist who was under surveillance and had been released a month or so previously from a three year and four month prison sentence for disseminating terrorist material, stabbed and injured two people before being shot dead by police. As the noble Lord, Lord Parkinson of Whitley Bay, rightly pointed out at Second Reading, both of those attacks were carried out by offenders who had been released half way through their sentences. The central feature of Part 1 of this responsive Bill is to make the sentencing regime tougher, both for offences that are considered by their nature to be terrorist offences and for offences deemed to have a terrorist connection.
Our concern, in considering this Bill at Committee stage, is to ensure that damage is not done, by the perceived requirement to respond severely to terrorist offences, to consistent and long-held principles of our criminal law. Clause 1, broadly, extends the range of offences that can be deemed to have a terrorist connection to include any offence, committed after the Act comes into force, that is punishable with imprisonment for more than two years. The terrorist connection need not be determined by the judge in the case of a number of specific terrorist offences listed in Schedule A1, effectively because it is presumed. Otherwise, it is for the judge to determine and state in open court that an offence has such a connection. A finding that an offence does have a terrorist connection, requires a sentencing judge to treat that terrorist connection as an aggravating factor when imposing sentence by reason of Section 69 of the Sentencing Code. For the purpose of that section, an offence has a terrorist connection if the offence
“is, or takes place in the course of, an act of terrorism; or … is committed for the purposes of terrorism.”
I note in passing that the code does not require that the offender was a knowing party to the planning, objectives or implementation of the act of terrorism, actual or intended, that was in fact committed. Furthermore—and this is our central point on Clause 1 —the decision that the offence has a terrorist connection is to be taken by the court at the sentencing stage, even though such a decision inevitably fundamentally changes the nature of the offence for which the offender has been convicted. The decision that is then made involves a factual determination of great significance to the criminality of the defendant and of the offence, yet it is taken by the judge alone without the involvement of a jury. Because the category of offences that may give rise to such a finding is so wide—that is, any offence that carries a maximum prison sentence of more than two years—the offences include a very wide range, such as causing criminal damage over £5,000, assault occasioning actual bodily harm, theft and many others, some of which would often be quite minor if committed without a terrorist connection.
Terrorism as an aggravating factor in sentencing was introduced by the Counter-Terrorism Act 2008. By Section 30 of that Act, where a person was found guilty of an offence listed in Schedule 2 to that Act and the court found that the offence had a terrorist connection, the judge was bound to treat the terrorist connection as an aggravating factor. The mechanism was the same as is proposed under this legislation, but the Schedule 2 offences under the 2008 Act were of the utmost severity. They included murder, kidnapping, Section 18 wounding with intent to cause grievous bodily harm, a number of serious explosives offences, hijacking, biological weapons offences, hostage taking and serious aviation offences.
A determination that an offence has terrorist connections has implications beyond sentencing, as it also triggers a number of forfeiture provisions and the terrorism notification requirements that apply. Under the Terrorist Offenders (Restriction of Early Release) Act 2020—the emergency legislation we passed last year to prevent terrorist offenders being released after serving half their sentences—any offender whose offence came under the prescribed list of serious offences, and had been determined by a judge to have a terrorist connection, was subject to the rules in that legislation against release at the halfway point but, again, that Act involved a list of serious prescribed offences.
Lord Parkinson of Whitley Bay (Con)
My Lords, I thank the noble Lord, Lord Marks of Henley-on-Thames, for reminding the Committee of the two terrorist offences at Fishmongers’ Hall and at Streatham, which formed the backdrop to this Bill. They were rightly mentioned at Second Reading; it is correct that we have them in our minds as we embark on Committee today.
Clause 1 addresses a limitation in the existing legislation to ensure that no terrorist-related offenders fall through the cracks. As the noble Lord, Lord Marks, set out, at present the courts are expressly required to consider whether there is a terrorist connection at the point of sentencing only in relation to a defined list of non-terrorism offences set out in Schedule 1 to the Sentencing Code for England and Wales and Schedule 2 to the Counter-Terrorism Act 2008 for Northern Ireland and Scotland.
Clause 1 removes this defined list of non-terrorism offences from Schedule 1 to the Sentencing Code and Schedule 2 to the 2008 Act. This is an important step, though not quite as radical as the noble Lord, Lord Marks, suggests. It will expressly require the courts, in cases where it appears that any non-terrorism offence with a maximum penalty of more than two years was committed in the course of an act of terrorism or for the purposes of terrorism, actively to consider whether the offence was committed with a terrorist connection and should be aggravated as such. Closing this loophole provides a necessary flexibility in the legislation, reflecting the fact that terrorist offending takes a wide variety of forms.
On Second Reading we noted that, sadly, the terrorist threat is constantly evolving; offenders prove themselves rather inventive, alas, and it is right that the legislation keeps pace. I am glad for my noble friend Lord Naseby’s support, who sadly spoke with personal experience. I also welcome the support of the noble and learned Lord, Lord Falconer of Thoroton, for this important step in expanding the list of offences.
This clause also ensures that the consequences of a terrorist connection are applied consistently to all offenders. The identification of a terrorist connection by the courts has a wide-ranging impact. First, it must be treated as an aggravating factor when sentencing. This will help ensure that terrorist offenders receive punishment befitting the severity of their offending and the risk they pose to public safety. Secondly, the change will also result in the offenders being subject to the registered terrorist offender notification requirements following their release from prison, meaning that they are required to notify specified information to the police. That information supports the police to manage an offender’s risk on release much more effectively. Thirdly, once the Bill receives Royal Assent—as we hope it will—offenders convicted with a terrorist connection will be subject to a minimum of 12 months on licence following their release and will be eligible to have certain licence conditions imposed on them to assist in the effective management of their risk, for instance polygraph testing.
It might help the Committee if I offer a hypothetical example to demonstrate how this change will work in practice, as noble Lords asked for. Today, someone convicted of possessing a firearm with intent to endanger life would not be guaranteed to have their sentence aggravated, even where the court has identified a terrorist connection. They would also not be subject to the restriction on early release provisions or the registered terrorist offender notification requirements upon release. That is because this offence is not listed in Schedule 1 to the Sentencing Code or Schedule 2 to the Counter-Terrorism Act 2008. Clause 1 will address this inconsistency in the current legislation by requiring the court to consider whether there is a terrorist connection and treat it as an aggravating factor if such a finding is made. It will also ensure that appropriate risk management tools, such as the notification requirements, apply following the offender’s release from prison.
I emphasise that, as is the case currently, courts will be required to apply the criminal standard of proof—that is, beyond reasonable doubt—when determining a terrorist connection at the point of sentencing. The noble Lord, Lord Thomas of Gresford, asked about this. Judges routinely have to consider whether offences which they are sentencing have been committed with aggravating factors and, in doing so, they apply the criminal standard of proof and must be satisfied that they are made out beyond reasonable doubt. I hope that addresses the question that he and others raised about the process.
It is also important that the Committee notes what the Independent Reviewer of Terrorism Legislation said in public about the Bill and these provisions, including during the oral evidence that he provided to the Public Bill Committee in another place. Asked by my honourable friend the Member for Derbyshire Dales which provision in the Bill, in his professional view, would have the biggest effect on making our citizens safer, he said that it was this one:
“That is a really welcome change, which makes people safer.”—[Official Report, Commons, Counter-Terrorism and Sentencing Bill Committee, 25/6/20; col. 16.]
The Bill contains a comprehensive package of measures, of which this change is an important part. It will help to establish confidence in the sentencing framework by ensuring that those who commit terrorist-related crimes receive punishments commensurate with those crimes, spend longer in custody and are subject to appropriate risk management processes following their release.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, I should have opened my earlier speech by welcoming the noble Lord, Lord Wolfson of Tredegar, to his position and to the House. He has been extremely helpful to me in relation to the Domestic Abuse Bill and its provisions and I have seen him virtually on a number of occasions, so I have not completely appreciated that this is the first time that we have been together on a Bill. I also thank all noble Lords who have spoken and in particular the noble Lord, Lord Parkinson, for his response.
I listened carefully to all that the noble Lord, Lord Naseby, said. Of course we all, throughout the House, deplore terrorism and agree that it is crucial that we make our country safe from terrorism and treat terrorist offences with extreme severity. The point that I made, echoed by my noble friend Lord Thomas and, to a certain extent, by the noble and learned Lord, Lord Falconer, is that, in the effort to set up that severe framework, we must not abandon important principles of English criminal justice.
The noble Lord, Lord Parkinson of Whitley Bay, has not answered the point made by me and by my noble friend Lord Thomas and, to a lesser extent, by the noble and learned Lord, Lord Falconer, that the fact-finding process by which the aggravation of an offence carrying a sentence of more than two years’ imprisonment is to be proved has not been defined in the Bill, is taken out of the hands of the jury by the Bill and put into the hands of the judge, and does not satisfy the basic requirement of English law that the findings of fact about an offence are for the jury, and the sentencing is for the judge.
Of course I take the point made by the noble and learned Lord, Lord Falconer, that the judge has discretion in many cases—including the offence of murder, which the noble and learned Lord mentioned—to increase or reduce a sentence in accordance with his view of the evidence. However, that does not answer the central point that what we have here is the creation of a raft of new aggravated offences, and the position that it is for the judge alone to decide whether he is dealing with an aggravated offence or a basic offence; and the basic offence can be quite a minor offence in general terms.
The noble Lord, Lord Parkinson of Whitley Bay, has not answered the question from my noble friend Lord Thomas as to whether there would or would not be a Newton hearing. He has not answered the noble and learned Lord, Lord Falconer, about how the judge makes a determination that the offence is to be treated as aggravated. I invite the noble Lord to go back and discuss with his colleagues in government how this point can be dealt with so as to ensure that the aggravated offence is either charged, tried and convicted in accordance with our principles of law by the jury, or how it is to be determined on proper evidence, if not by the jury then by the judge.
The clause as it stands is unacceptable. For that reason, I maintain the questions that I have about it.
Member’s explanatory statement
This amendment probes the balance between custody and licence for young offenders.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, Clause 4 and my Amendments 4 and 5 concern the imposition of serious terrorism sentences of detention in a young offender institution for offenders aged 18 or over when the offence was committed and under 21 when convicted. A serious terrorism offence is defined in Clause 2 and that definition is carried into the Sentencing Code through new Schedule 17A. Part 1 of the new schedule lists a number of very serious terrorism offences, while Part 2 lists other broadly serious offences where the judge determines that there is a terrorism connection. On Part 2, I repeat the points I made earlier on Clause 1, although here they are applied with less force because the offences are, by and large, much more serious so the aggravation of the sentence is likely to be less severe.
The structure of the sentence for a serious terrorism offence for young offenders is defined, as it is for adults aged over 21, as the aggregate of a custodial term and an extension period during which the offender is to be subject to a licence. A serious terrorism sentence is to be imposed where there is a significant risk to the public of serious harm caused by the offender in future terrorism offences where the court does not impose a life sentence and where the multiple deaths condition as defined in the Bill is met, so these are indeed very serious offences. The term of the sentence is defined as a minimum custodial period of 14 years and an extension period of between seven and 25 years. There is a very limited exception to the requirement to impose a serious terrorism sentence on detention where there are exceptional circumstances that relate to the offence or to the offender which justify not imposing the sentence.
I accept entirely that these are very serious offences so the sentences are very serious indeed, but for young offenders aged 18 they are what might be called “no hope” sentences. A period of 14 years in prison in a young offender institution would take the young offender to the age of 32.
There may be many cases where such a sentence is justified, but there are—or may be—others where it is simply too great. Our Amendment 4 would provide for a minimum term of 10 years instead of 14 years, without affecting the judge’s discretion in an appropriate case to impose a custodial term of longer than 10 years if that would be the appropriate sentence for the offence under the general provision of the Sentencing Code. Amendment 4 is balanced by Amendment 5, which adjusts the minimum term on licence upwards from seven years to 10 years.
The rationale behind these amendments is that there is a wealth of evidence for a number of propositions. For younger people in particular, the effect of very long custodial terms is particularly destructive, depriving them of their chances of education and building productive lives. For young people in particular, even those convicted of terrorist offences, there is hope of rehabilitation, deradicalisation and using educational opportunities to help turn their lives around and give them chances to make worthwhile lives for themselves even at the end of a long custodial sentence. Young people in particular benefit from the help and support to be offered by the probation service and others to offenders released on licence, and may benefit to a greater extent than older offenders from both deradicalisation programmes and education—vocational and general—which they might undertake on licence to help them come to terms with the real world on their release after what is anyway a very long sentence.
I therefore suggest that it would be of advantage to society, and to us all, to rebalance the division of a serious terrorism sentence, so as to have a greater period on licence to follow a minimum period in custody, which, while still very long, would be somewhat less draconian than presently proposed, and would not affect the right of the judge to impose a longer sentence in an appropriate case. I beg to move.
Lord Thomas of Gresford (LD) [V]
My Lords, I am always intrigued by the thought processes that must be brought into play in fixing a minimum sentence in a Bill. I would like the Minister to outline what consultation there has been concerning the minimum sentence of 14 years for a young offender between the ages of 18 and 21—a “no-hope sentence”, as my noble friend Lord Marks described it a moment ago, and I completely concur with everything that he said. I cannot imagine that it is a Minister who initially chooses the minimum number of years for imprisonment. Somebody in the Ministry of Justice must have drunk his cup of coffee and plumped for a figure to put in for the Minister to sign off on. I do not suppose he will ever have met a young offender—“Let’s just say 14 years sounds good.”
I want to contrast this with the role of a sentencing judge whose sentencing discretion is not bound by statute. The judge sitting in a serious case of terrorism would not be there if he had not had a lifetime of experience in the criminal courts, developing his instinct and his trained capacity to weigh the seriousness of one case against another. Other experienced practitioners and academics who have studied criminology have provided the judge with sentencing guidelines. They give him a guide to the accepted range and indicate what aggravating or mitigating factors he should have in mind. In addition, the judge will have the benefit of counsel’s submissions and a probation report from an experienced officer that will give him an insight into the background of the defendant. There may also be medical reports and, sometimes, witnesses prepared to speak up on the young man’s behalf.
This clause introduces an arbitrary minimum sentence as the guideline unless there are “exceptional circumstances”. There are no guidelines as to what those exceptional circumstances are: if the past is any guide, we will have to wait for the Court of Appeal to lay them down. The minimum sentence is chosen by a civil servant who, in all probability, has never been inside a court. So we get an arbitrary 14-year minimum sentence and an arbitrary seven years on licence. What is the evidence that this is the correct balance? Who said that? Why cannot a judge be left to do his job?
It seems to me that the only purpose of a minimum sentence is to make a single day’s headlines to the effect that the Government are being tough on crime, and specifically on terrorism. There is no question of looking at the individual who is before the court, and considering his future, his welfare, his rehabilitation or whatever. In putting forward this amendment, my noble friend is testing the rationale for the balance in the Bill, and I look forward to a full exposition from the Minister in due course.
Lord Stewart of Dirleton (Con)
If I may, I will respond to the noble Baroness’s question in writing.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, again I thank all who have spoken on these amendments, in particular the noble and learned Lord, Lord Stewart of Dirleton. His response was sympathetic, in that he fully recognises the position of young offenders exposed to these extremely long sentences. In return, as he recognised, we accept the seriousness of the offences that are to be visited by these serious terrorist sentences. It is right that they merit an extremely serious response. But even for the most serious offences there ought to be room in a scheme of punishment for rehabilitation, particularly of young offenders who commit these offences in their youth but are serving sentences for many years to come.
My noble friend Lord Thomas of Gresford spoke of, and asked about, the arbitrariness of the choice of the 14-year term. Of course, he has had a lifetime of practising in the criminal courts. He has many years of experience of judges exercising their discretion, and those years have left him with a favourable view of judicial discretion—a view which I share.
The noble Lord, Lord Ponsonby, questioned the formulation that my noble friend Lord Thomas of Gresford and I put that a sentence of 14 years of immediate custody offers no hope, because, he said, of the availability of help within a custodial setting. I regret that I do not agree with his optimism. Very long periods in custody allow offenders in custody no hope, or very little hope indeed. It is otherwise with time spent on licence, when a great deal of help in rebuilding their lives is available to offenders, from the probation service and other services and, we would hope, also from services to help deradicalise young offenders.
The question of rebalancing, which the Minister also accepted that these amendments were about, was explored and will be explored further between the Minister and my noble friend Lady Hamwee. I invite the Minister and the Government to consider whether more discretion could be left to the sentencing judge to permit that judge to impose a minimum term in custody of less than 14 years—we suggest 10—and to recognise that there is scope for a longer period on licence to enable young, or young middle-aged lives at that stage, to be rebuilt. In urging the Government to take that position, I beg leave to withdraw the amendment.
Member’s explanatory statement
This amendment would give the courts more discretion when applying the minimum term.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, we spoke in the previous group about young offenders, but there is in Clause 4 a very limited exception to the requirement to impose a serious terrorism sentence of detention where there are exceptional circumstances which relate to the offence or the offender which justify not imposing the serious terrorism sentence. This amendment relates to a precisely similar provision in Clause 11 relating to the imposition of such an offence on adult offenders under Clause 11(5). I should have tabled a similar amendment in relation to Clause 4, and for that I apologise, but the omission can be made good, if necessary, on Report.
Lord Wolfson of Tredegar (Con)
My Lords, as the noble Lord, Lord Marks of Henley-on-Thames, explained, this amendment seeks to amend and change the circumstances in which a sentencing court could impose less than the 14-year minimum term for a discretionary life sentence imposed in a serious terrorism case by changing the circumstances from “exceptional” to “significant”. I respectfully agree with the noble Lord that the logic of his amendment would also apply to Clause 4. However, I respectfully disagree over whether such an amendment is appropriate.
The purpose of Clause 11 is to ensure a consistency of approach when sentencing those convicted of serious terrorism offences. It would not be appropriate for a court to be able to impose a life sentence with a lower minimum term for a serious terrorism offence other than where there are exceptional circumstances. If the circumstances of the offence and offending are such that the court imposes a life sentence, and unless there are exceptional circumstances, there should be no possibility of the offender being released earlier than someone given a serious terrorism sentence. That is what Clause 11 achieves.
By contrast, the amendment would remove that consistency, so that the court could consider a wider range of circumstances when setting the minimum term in a discretionary life sentence than when doing so for a serious terrorism sentence, although all other circumstances would be the same. While I accept that there is a distinction, in that the prisoner serving a life sentence may be considered for release only after the minimum term is served, it would be unprincipled for him or her to be released earlier than a counterpart serving a serious terrorism sentence.
A number of questions were asked about “exceptional circumstances”. That is a principle already established in sentencing legislation. It is used, for example, in connection with minimum terms that can apply to certain firearm offences. I must respectfully decline the invitation of the noble Lord, Lord Ponsonby, for a Minister to gloss from the Dispatch Box what “exceptional circumstances” might or might not be. It is a phrase used elsewhere in statute and known in law. Those are straightforward English words and it would not be appropriate or even helpful for me to gloss them on my feet at the Dispatch Box.
By contrast, I respectfully point out to the noble Lord, Lord Marks, that as far as my research has indicated—I am happy to be corrected if I am wrong—there is no existing “significant circumstances” principle in sentencing legislation. Therefore, if accepted, the amendment would create an entirely new test, which in our view is unwarranted and likely to lead to litigation, which cannot be in our interests as parliamentarians in passing this Bill.
As far as the point made by the noble Lord, Lord Thomas of Gresford, is concerned on judicial discretion, we are really talking about the extent of the judicial discretion and whether the test should be “exceptional” or “significant” circumstances. The question is not to the existence but to the extent of judicial discretion. As part of the Government’s recent White Paper, A Smarter Approach to Sentencing, we have committed to changing the criteria for other minimum terms for repeat offences to reduce the occasions on which the court may depart from the minimum custodial length.
For those reasons, I do not consider the amendment to be necessary or appropriate, and I respectfully invite the noble Lord to withdraw it.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, I am grateful to those who have spoken, and to the Minister for his response. However, I am bound to say that I found it disappointing. He is absolutely right to state that “exceptional” has a clear meaning in law and is used elsewhere. It was to that meaning that I alluded when I said that the use of “exceptional” puts the judge in a straitjacket. It is for that reason that my noble friend Lord Thomas of Gresford is right to seek a little more latitude, because the sentence is so long and the circumstances may be very varied.
The Minister did not deal with the point that the circumstances can relate not only to the offence but to the offender. They may cover a very wide range. Therefore, it is our position that more discretion is called for. He is right that it is the ambit of the discretion with which this amendment is concerned. I invite him to reconsider it. While he does, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
The noble and learned Lord, Lord Morris of Aberavon, has withdrawn from this group, so I call the noble Lord, Lord Marks of Henley-on-Thames.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, I agree with the noble and learned Lord, Lord Falconer of Thoroton, about the benefits of pre-sentence reports. They are, and always have been, when available, important in the context of sentencing generally. They are a sophisticated tool, bringing before a court matters that may not be known to the sentencing judge in the absence of a detailed report on the background and motivation of an offender, and their potential to be rehabilitated in future. In not requiring such a report, which covers all the matters mentioned in this amendment, Parliament would be taking a retrograde step and excluding elements that may be important in determining the length of any sentence or extension period.
The amendment complements Amendment 6 that I introduced earlier, by giving the judge not only increased discretion in passing sentence, but also the material on which he can correctly and sensibly exercise that discretion. I agree with the noble and learned Lord, Lord Woolf, who described such a report as a very healthy safeguard. I urge the Government to accept the amendment for that reason. It is a question of giving the sentencing court the material upon which to make an informed and sensible decision from everybody’s point of view.
Finally, I commend the words in the amendment that provide for a review of the workings of the clause, including the amendment. I fear that we are legislating in some haste in relation to the Bill, and a review of how it is working, particularly this clause, would be extremely helpful.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to the noble and learned Lord, Lord Falconer of Thoroton, for introducing this amendment, although I hope to persuade him that it is in fact misconceived.
The amendment deals with Clause 16, which relates to an increase in the extension period for terrorism offenders aged under 18. As my noble and learned friend Lord Stewart of Dirleton said a few moments ago, I am sure it is common ground across the Committee that when dealing with such young adults one has to have the greatest care and consideration. Having said that, as my noble friend Lord Robathan reminded us, this is a matter of public safety. I respectfully endorse nearly all the comments that he made; I say “nearly all” because, in a debate where so many lawyers are speaking, I understand the temptation for someone who is not a lawyer to say that they are “only a layman”, but my noble friend is not “only” anything. With that slight quibble, I respectfully take on board everything that he said.
The amendment would require the pre-sentence report to take account of the offender’s age and consider whether options other than an extension period of eight to 10 years might be more suitable than an extended sentence of detention. The amendment would also require the Secretary of State to report to Parliament each year on the effectiveness of increasing the maximum extension period of the extended sentence of detention from eight to 10 years.
The nature of an extended sentence is that it comprises a custodial term and an extension period for the purposes of public protection, as defined in Section 256 of the Sentencing Code. The effect of the amendment would be fundamentally to alter the nature of the sentence by proposing an alternative to that extension period.
The amendment is also not necessary and, I say with respect, perhaps misunderstands the provision. I assure the noble and learned Lord, Lord Falconer, that the clause simply provides for a new maximum licence period of 10 years in serious terrorism cases rather than the current eight. This is not mandatory; it is available for use at the court’s discretion, and it will remain possible to apply a licence period of any length between 12 months and 10 years.
For a youth offender to receive an extended sentence for a serious terrorism offence, the court will be required to consider a pre-sentence report. I therefore agree to that extent with the noble Lord, Lord Marks of Henley-on-Thames, and the noble and learned Lord, Lord Woolf, about the utility of such reports. In preparing the pre-sentence report, the youth offending team officer will always consider the offender’s age and circumstances in order to recommend an appropriate sentence. The Bill does not change the way in which pre-sentence reports are done.
However, time spent on licence is crucial for both monitoring and managing offenders in the community as well as giving them the opportunity to change their behaviour. Therefore, providing the courts with the option of imposing a longer period of supervision on licence for the most serious terrorist offenders is an important element and component of the Government’s efforts to protect the public from the risks that terrorist offenders pose while enabling a longer period to support rehabilitation.
In that context, I assure the noble Baroness, Lady Jones of Moulsecoomb, that I am not in the business of throwing red meat to anyone or anything, be it dangerous dogs or the tabloids. This, however, is a proper and proportionate response to the very significant danger that some offenders present. I therefore invite the noble and learned Lord, Lord Falconer of Thoroton, to withdraw the amendment.
Lord Carlile of Berriew (CB) [V]
My Lords, I agree with the noble Lord, Lord Faulks, that we are dealing with the determination of licence conditions in the context of terrorist prisoners having been sentenced to longer sentences. However, I agree with the noble Baroness, Lady Prashar, who has very considerable and relevant experience, and with my noble friend Lord Anderson of Ipswich that the Parole Board has an important potential role to play in these cases.
It is said that the determination of licence conditions can adequately be dealt with by prison governors. That may be true in some cases, but prison governors do not have the range of expertise, the judicial discipline and the clear legal accountability of the Parole Board. It is therefore my view that this task should be undertaken by the Parole Board, which has all the relevant qualifications to do it. If the Parole Board was placed in that position it would command the confidence of the public. Indeed, those who believe that too much control is being taken of prisoners by government would be able to see that there was a thoroughly independent, accountable, quasi-judicial organisation dealing with these cases empirically and on their merits.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, this amendment incorporates significant changes to Clause 27. In particular, as pointed out by the noble Baroness, Lady Prashar, with all her experience of the Parole Board, and by other speakers, the suggested replacement for Clause 27 would preserve the Parole Board’s role. I regard the amendment as entirely helpful on the basis that, with some exceptions, the Parole Board has had an extremely good record of balancing the safety of the public with the need to rehabilitate offenders in society.
I will largely cover what I have to say on the principles involved in this amendment in my part in the next group. However, it seems to me that the noble Baroness, Lady Prashar, made the very important point that Clause 27, as drafted, involves automatic release on licence without any assessment of the safety of that release by the Parole Board. I accept that prison governors would be involved, but that, in my view, is no substitute.
In summary, it is my view that this amendment would be an entirely acceptable way to address the problems with Clause 27 as drafted, the most important of which are its removal of the involvement of the Parole Board from the release process altogether and the concomitant results that offenders under Clause 27 would be automatically released, less likely to be rehabilitated and also more difficult to manage while in prison.
Lord Falconer of Thoroton (Lab) [V]
This is a significant debate. There are two circumstances that one has to consider. First, when one is dealing with a terrorist prisoner who is over 21, should the Parole Board, in the circumstances set out in Clause 27, have the power to direct early release? As I understand it, the effect of the Bill is that in certain specified circumstances early release is not possible for over-21s. Although it is hard, we are dealing with very dangerous situations. I am not sure that we would object to that, but I would like it to be clear: are we dealing in this amendment with the possibility of early release? If we are, then apart from those who are under 21 at the date of conviction, we would not wish to change the provisions of the Bill.
The second situation is where what the Parole Board is being asked to do is to either determine or advise on what the release conditions should be for somebody who is going to be released in any event. In those circumstances it would seem sensible for the expert risk assessors to determine not whether they should be released but what the conditions should be. I would be interested in the Minister’s views on both situations I have posited: one where we are dealing with early release, the other where we are dealing with conditions only.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
Noble Lords should be aware that the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, have withdrawn from this debate, so the speaker after the noble Lord, Lord Marks, will be the noble Baroness, Lady Prashar. I call the noble Lord, Lord Marks.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, as was said on the previous group, Clause 27 as it stands would mean that offenders serving serious terrorism offences sentences and those serving extended determinate sentences for an offence carrying a possible sentence of life imprisonment would be excluded from the operation of subsections (3) to (5) of Section 247A of the Criminal Justice Act 2003. Those subsections presently govern the involvement of the Parole Board in the release of offenders at the two-thirds point of their custodial term.
In answer to some who spoke about early release in the debate we have just had, the description of release at the two-thirds point, which is what is largely envisaged, is not, on our traditional understanding, early release. We have long recognised that there is a benefit in a remission system whereby release generally takes place at the two-thirds point of a custodial term before the offender’s sentence has been concluded.
As the noble Lord, Lord Anderson, pointed out, subsections (3) to (5)—the present arrangements—were themselves the result of the Terrorist Offenders (Restriction of Early Release) Act, the so-called TORER Act, which we passed last year, ending release on licence after the halfway point in an offender’s sentence. However, in the section concerned, we preserved the role of the Parole Board in cases where generally an offender had served two-thirds of his custodial term. That was emergency legislation. I invite the Minister to explain what has changed to justify removing the Parole Board’s involvement since that emergency legislation, which retained it. I venture to suggest that no further justification has arisen since we passed that Act.
Subsections (3) to (5) presently require referral by the Secretary of State to the board for consideration after the completion of two-thirds of the required custodial period, then consideration by the board as to whether it is satisfied that it is no longer necessary for the protection of the public that the prisoner be detained. Only if it is so satisfied does the board direct release on licence. The effect of Clause 27 on the offences to which it applies is that release before the conclusion of the custodial term is excluded altogether and the Parole Board is not to be involved in relevant offenders’ release. Clause 28 and Schedule 10 apply similar provisions to Scotland, and Clause 31 to Northern Ireland.
One effect of removing the prospect of early release is that the Bill removes an incentive to behave acceptably in prison, which makes offender management in prisons far more difficult. It also makes it less likely that prisoners will engage with deradicalisation programmes within prisons—partly because there will be less incentive for them to do so, but also because deradicalisation, like rehabilitation more generally, is advanced by hope and inhibited by hopelessness. It would increase, in those subject to these sentences, the sense of hopelessness, powerlessness and hostility in prison from all around; I urge those who argue that hope and some sense of power in a prisoner’s own destiny are important to the welfare of society at large to accept the weakness of that position.
One reason why I make these points is that all those subject to these sentences will be released one day, unless their sentences outlast their lives; for that reason, their rehabilitation is important. Nor should we forget that the reoffending rates for terrorist offences are in fact low, as the noble Lord, Lord Anderson, pointed out when he referred to the response to the Question he raised last February, in which the Ministry of Justice calculated a recidivism rate of 3.06% for terrorist offences, as opposed to a rate of 28% for other offences. Of course I take the point made by the noble Lord, Lord Faulks, that any reoffending by a terrorist offender is or may be disastrous, but I venture to suggest that excluding any involvement of the Parole Board, with its wealth of experience in weighing up risks to public safety, would be an unhelpful way of improving public safety; indeed, it would not improve public safety at all.
The central question that the Parole Board is directed to consider is whether continued detention is required by a continuing risk to the safety of the public. The noble Baroness, Lady Prashar, repeatedly described this as risk assessment; that was the correct description. She rightly highlighted the importance in this process of the Parole Board and its hearings. Of course I accept in all this the point made in response to her amendment by the noble Lord, Lord Wolfson, that a replacement for Clause 27 would be required if that clause were to go. Whether or not that would have been the replacement proposed in Amendment 12 by the noble Baroness and others matters not. What does matter is that the present proposal does not help public safety, and has very serious adverse ramifications.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, we have had two serious and thoughtful debates on the last two groups, and I am very grateful to all noble Lords who have spoken and to the Minister, who, on his first outing on a Bill, has undoubtedly impressed us all with the care and the courtesy with which he has approached the amendments discussed today. We have one further group today, but nevertheless I express the hope that further consideration between now and Report will persuade him and some of his colleagues in government to compromise when they see the faults of some of these amendments.
All of us—and I say to the noble Lord, Lord Naseby, not only those who see Clause 27 as an unmitigated, good toughening-up of terrorist sentencing—approach these issues from the perspective of what is best for public safety. That involves consideration of how to improve behaviour, and with behaviour the atmosphere, in prison.
I take the important point made by the noble Lord, Lord Ponsonby, about the safety of prison staff. It involves consideration of how to avoid reoffending, how to rehabilitate and deradicalise even terrorist prisoners, and how to ensure fundamentally that when prisoners are released, that release is safe.
The Minister responded to my question on what has changed since the TORER Act to justify the removal of consideration by the Parole Board of the release of offenders, or removal of release at the two-thirds point, but for the moment I am not sure that I accept the distinction that he made, though I will read what he said with care.
Serious Criminal Cases Backlog
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The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, the noble and learned Lord fails to put this information in context. In the Crown Court, prior to the Covid pandemic hitting in March last year, the outstanding caseload was 39,000, which was well within the range of 33,000 to 55,000 over the last decade. Immediately before the pandemic hit, we had increased the number of sitting days in response to an incoming demand on the courts. He will be aware that we have taken various steps to ensure that delays are minimised. However, I agree with him on one point: that we should pay tribute to the judges, magistrates, jurors, witnesses, victims, lawyers, court staff, CPS staff and, if I may say so, MoJ officials who have made a monumental effort to deliver justice in very challenging times.
Lord Marks of Henley-on-Thames (LD) [V]
With respect to the answer just given by the noble Lord, the Secretary of State’s response last week was complacent and lacked urgency. The four chief inspectors of probation, police, prisons and the CPS came together to produce a joint crisis report, expressing their grave concern about the “unprecedented and very serious” backlog of Crown Court trials—54,000-odd cases with trials scheduled into 2022—and the disastrous effects of these delays on victims, witnesses, youth offending teams, defendants and prosecutors. As long ago as July last year Caroline Goodwin, then chair of the Criminal Bar Association, pleaded with the Government to
“get serious and open up 50 more buildings and focus on criminal trials.”
Now many more are needed, along with much more funding to stave off collapse. Yes, efforts have been made and in difficult circumstances, but why the self-congratulation? Where is the urgency? What are the Government now going to do?
Lord Wolfson of Tredegar (Con)
My Lords, I assure the noble Lord that there is no complacency whatever. In fact, in September we published a crime recovery plan to which members from all groups involved in the criminal courts contributed. That plan was put together after significant consultation and collaboration. It is now being implemented. We now have more rooms for jury trials. We have plexiglass to enable social distancing and are using Nightingale courts including, I am pleased to say, St George’s Hall in Liverpool, where I first saw justice in action. We are exceeding the goals in the plan. The target was 250 courts safe for jury trials by October; we have exceeded that number and are improving the position yet further.
Magistrates
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Lord Faulks
The question of appropriate sentencing powers is a difficult one. It goes back to 1952, when the magistrates were first given their powers. There are different views on whether it is appropriate to increase the sentencing powers. For example, the Prison Reform Trust and the Howard League think there ought to be a decrease in sentencing powers. There is a great deal of thought being carried out on this. I am not currently aware of any modelling and I cannot go beyond the answer given, but I will take that back to the department and bear in mind the question posed by the noble Lord.
Lord Marks of Henley-on-Thames (LD)
My Lords, this change has been on the statute book since 2003. The Magistrates’ Association argues strongly that retaining more cases in the magistrates’ court and reducing the number of cases committed to the Crown Court for sentence would cut delays, as the noble Baroness, Lady Seccombe, said, save some £40 million and, importantly, make justice more local. Do the Government see any persuasive arguments against now implementing the change?
Lord Faulks
The noble Lord is right; it was as long ago as 2003 that this potential increase in sentence was statutorily allowed. A number of factors have been taken into account by successive Governments. He makes an important point about cost savings. He is quite right; it is, of course, much cheaper to use magistrates than go to the Crown Court and, if they have appropriate powers, it is more likely that magistrates will deal with the matter. We have to bear in mind—I think the noble Lord, Lord Beecham, directed his question towards this matter—the possible effect on the prison population and how magistrates will feel able, or want, to use any increase in powers. It is a difficult question.
Court Proceedings: Written Transcripts
Lord Marks of Henley-on-Thames Excerpts(7 years, 10 months ago)
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Lord Faulks
The noble Baroness makes an important point, and I will take it back.
Lord Marks of Henley-on-Thames (LD)
My Lords, any member of the public can walk into court to hear proceedings being conducted. That is at the heart of open justice. I have long believed that allowing proceedings to be televised is the natural extension of that principle—subject of course to safeguards, in particular for witnesses. Does the Minister agree that the limited televising of proceedings to date has been a success and should be further extended?
Lord Faulks
There has been some televising of proceedings. The Supreme Court, for example, even has its own website. I do not think it is doing very well in the ratings war, but it provides accessible opportunities to see what goes on the courts. The Court of Appeal Criminal Division is also now available to the public, and a pilot is proceeding on the Crown Court and sentencing remarks. While of course the Government are very much in favour of open justice, we have to proceed carefully in this area, perhaps because of the risk of people being diverted in the way they perform in court, whether they be witnesses or even—dare I say?—lawyers thinking about how they will be perceived.
Prison Safety
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Lord Marks of Henley-on-Thames
To ask Her Majesty’s Government, in the light of the latest figures on deaths in custody and prison violence, what plans they have to improve prison safety in the short term.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, the Government recognise that our prisons need reform. There is much more to do to ensure that prisons are places of decency, hope and rehabilitation, and improving safety is fundamental. There is no single, simple solution to the increases in deaths and violence in prison, but we are taking action. This includes implementing the recommendations from the review of the process to support prisoners at risk of suicide and self-harm, and trialling the use of body-worn video cameras.
Lord Marks of Henley-on-Thames (LD)
My Lords, my Question was quite specific. We commend the Government’s commitment to long-term prison reform, but last week’s figures demand immediate action to reduce prison violence. Homicides, assaults on prisoners and staff, suicide and self-harm are all up, by roughly a quarter overall—and that is over the previous dreadful year’s figures. We urgently need more staff, fewer prisoners, less of prisoners’ time spent locked in cells and an end to cell cramming. What action will the Government take now?
Lord Faulks
The noble Lord will know, because his party was in government for five of the last six years, that what happens in prisons represents a real challenge for any Government. However, I can tell him that prison officers have increased in number by 440 this year. Further to that increase, we are continuing our drive for more prison officers; the training is improving—going from six to 10 weeks; we are cracking down on psychoactive substances and their importation into prison; and we are acting through a number of different initiatives to identify particular risk points for violence. We are doing everything we can to tackle these very real problems.
Prisoners: Foreign Nationals
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Lord Faulks
We have reduced by 584 the number of IPP prisoners in the last year. There is an indeterminate sentence prisoners co-ordination group, run by NOMS, where close examination is taking place of all serving IPP prisoners. Efforts are made to accelerate their access to the appropriate courses, and we have removed backlogs from the Parole Board. We think that everything is being done to make sure that those who are safe to be released are being released when the Parole Board decides.
Lord Marks of Henley-on-Thames (LD)
My Lords, today we have further evidence of prison overcrowding from another shocking inspection report of Wormwood Scrubs, which holds 35 indeterminate sentence prisoners. It makes the obvious recommendation that single cells should not be used for more than one prisoner. Will the Government now recognise that the injustice of keeping IPP prisoners beyond their tariffs serves only to add to the scandal of holding prisoners in overcrowded, squalid and understaffed prisons?
Lord Faulks
The noble Lord refers to the report on Wormwood Scrubs, which I entirely accept shows a distressing picture. As he and the House will know, the Secretary of State and the Prime Minister are determined to improve our prison system, and the Chancellor of the Exchequer has given £1.3 billion to enable that to happen. It will not happen overnight, but I am sure the House will accept the Government’s sincerity and determination to deal with some of the most unattractive aspects of our prison system.
Prisons: Violence
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Lord Marks of Henley-on-Thames
To ask Her Majesty’s Government what steps they are taking to tackle the incidence of deaths, serious assaults and incidents of self-harm in prison.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, the Government recognise the seriousness of this problem and are taking action to respond. We are trialling the use of body-worn video cameras, the Psychoactive Substances Act will introduce new offences to control supply and possession and we have reviewed the process for supporting prisoners at risk of suicide or self-harm. We recognise that our prison system needs reform, and there is much more to do to ensure that prisons are places of decency, hope and rehabilitation.
Lord Marks of Henley-on-Thames (LD)
My Lords, 2015 saw a record number of deaths in custody, a 20% increase in assaults and a 25% increase in self-harm incidents. Those increases were over record figures the previous year. The Justice Secretary appears committed, rightly, to prison reform, but has he been promised the resources to address the causes of these dreadful figures—squalid conditions, overcrowding, understaffing and prisoners locked for far too long in their cells?
Lord Faulks
The causes of violence are multifactorial. They include of course the increased use of psychoactive substances, to which the Government are responding positively. It is a ceaseless challenge to try to prevent them coming into prison, but we have a new offence, and we are taking steps to make it very difficult for these substances to be thrown over walls or secreted in parts of the body. It is generally a significant challenge. We are also looking at a two-year violence reduction project, to help us better understand the causes and characteristics of violence and to strengthen our handling of it. There is also the use of body-worn cameras. Ultimately, the best way to reduce violence may be to give, as the Prime Minister and the Secretary of State have suggested, much more power to prison governors to give them the tools necessary to reform the way their prisons are run and to help rehabilitate offenders.
Prison Reform
Lord Marks of Henley-on-Thames Excerpts(8 years, 4 months ago)
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Lord Marks of Henley-on-Thames (LD)
My Lords, I echo the thanks of many noble Lords to the noble Lord, Lord Fowler, both for securing this debate and for the powerful and striking speech with which he opened it. The debate has demonstrated that the first priority in prison reform is reducing the numbers of people in prison and that to achieve that our aims must be rehabilitation to cut reoffending, and fewer offenders sentenced to prison when they do not need to be there. The whole House has welcomed the fact that the new Justice Secretary recognises the crisis in our prisons and is committed to change. However, there is much to be done.
The House also recognises that prison overcrowding is the main obstacle to rehabilitation—the noble Lord, Lord Fowler, made that point. The Howard League for Penal Reform, to which I am grateful for its briefing, points out that in 25 years the prison population has almost doubled, from less than 45,000 in 1990 to more than 85,000 now, in spite of the last few years of falling crime, and that the prison population is projected to increase to 90,000, plus or minus 8,000, by 2020. The institutional factors mentioned by my noble friend Lord Beith clearly have something to do with this.
My noble friend also pointed out the dependence on tariff sentencing, which is so prevalent and so powerful with the press. There is overwhelming evidence that short sentences do not work, yet far too many prisoners are serving them. We have had the depressing figures for reconviction rates. Through-the-gate supervision, introduced by the Offender Rehabilitation Act, may reduce the disparity but it has not done so yet. The fact remains that short prison sentences work far less effectively than community sentences in reducing reoffending. Short sentences may indeed increase the risk of future crime by removing offenders from their family and social supports, as my noble friend Lord Dholakia pointed out.
The unnecessary imprisonment of drug offenders has also contributed to prison overcrowding and to increased drug use and drug-related corruption in prisons. The extent of the problem was highlighted by a 2013 survey which showed that 64% of prisoners reported having used drugs in the four weeks before going into custody. On these Benches, in the face of overwhelming evidence that imprisonment or even punishment does not reduce drug use or cure addiction, we have long argued for drug possession to be treated as a health rather than a criminal justice issue. It is therefore welcome that the Justice Secretary has established a working group to consider establishing courts that would have as their aim solving drug and similar health and social problems through rehabilitation rather than imprisonment—the Texas solution mentioned by my noble friend Lord Beith.
Far too many women are in prison, as the noble Baroness, Lady Healy, pointed out. Eighty-two per cent of women in prison have been convicted of non-violent offences and probably do not need to be there. The evidence shows that among women there is a far greater prevalence than among men of serious social and health problems. Women suffer disproportionately from prison in their family and personal lives, and of course their children and families suffer disproportionately, unnecessarily and unfairly from the separation that imprisonment of their mothers involves. The noble Baroness, Lady Healy, also made the point that there is an unduly extensive use of prison on remand for women who face a trial.
For young people, young offender institutions have for far too long been academies for crime to which we have sent our most deprived youngsters with the most intractable personal, social and health problems—mental and physical—and often with backgrounds of abuse, as my noble friend Lady Benjamin pointed out, only for matters to get worse for them. I applaud the contribution that my noble friend Lord McNally has made not only to this debate but to improving youth justice in the United Kingdom, which he continues to do. However, we also need to improve educational opportunity and vocational training, and, as the noble Lord, Lord Harris, pointed out, we need to ensure that personal responsibility is taken by the service for individual prisoners. The noble Lord, Lord Trefgarne, pointed out the difficulties of imprisoning too many older offenders.
The continued unjust incarceration of prisoners whose tariffs have expired but who are serving IPPs also contributes to the prison population. We have heard again from the noble and learned Lord, Lord Brown of Eaton-under-Heywood, taking up the cudgels of Lord Lloyd of Berwick. Both have repeatedly exposed the continuing injustice caused by these sentences, which were abolished as long ago as 2012, yet the Government will not use their power under Section 128 of the LASPO Act to change the test for their release, although for IPP prisoners the rate of reconviction within a year of release is only 14%.
Certainly one answer to overcrowding is to ensure that there are prison places to house the prison population in humane conditions, with an end to cramming and insanitary, squalid and filthy cells, lacking in privacy and destructive of self-esteem. The plan to replace old and inadequate city prisons with modern prisons that are fit for purpose is therefore welcome, provided that they are then used for the numbers for which they are designed and that we do not replace overcrowding in Wormwood Scrubs with overcrowding in its modern out-of-town-centre equivalent.
It is also clearly right that if costs to the Ministry can be saved by using modern videoconferencing technology to avoid unnecessary attendance at pre-trial court hearings, this is a sensible innovation. I would, however, add a word of caution about out-of-town prisons. It is important that, where possible, prisoners are placed close to their communities, particularly to enable their families to visit them. The Prison Reform Trust points to the evidence that prison visits help to reduce the risk of reoffending, which is 39% higher among prisoners who receive no visits than among those who do. We should not move prisoners miles across the country to far-away locations in large prisons where their links with their past, and therefore often with their futures, are cut, perhaps fatally. The noble Lord, Lord Ramsbotham, made that point.
The effects of overcrowding are exacerbated by chronic and serious understaffing. Staffing levels fell by 29% between March 2010 and December 2014—from about 45,000 to about 32,000. That has meant more violence, more drugs, more drug-related corruption, more in-cell time, less education and less activity. The vicious circle inherent in all that is obvious. The understaffing increases reoffending, which increases the prison population and further strains staffing levels.
The Chief Inspector of Prisons has painted a chilling picture of violence in custody, as the noble Lord, Lord Fowler, pointed out. The review of the noble Lord, Lord Harris, was a terrible indictment of our prison system. As he pointed out, the Government have a fundamental obligation towards prisoners to keep them safe. His recommendations for safer cells, for understanding the vulnerability and differences of maturity of young adults and for keeping them out of prison where possible must be implemented.
The figures on drug use in prisons are alarming. A rise of 60% in incidents where drugs were found in prisons in 2014 can only partly be explained by better detection. Understaffing and a demoralised staff contribute to that problem as well.
The House considered the position and role of prison education in Tuesday’s debate introduced by the noble Lord, Lord Hanningfield, and I will not repeat what was said then. However, the role of education has been mentioned by many and, although, as the noble Lord, Lord Forsyth, and my noble friend Lady Benjamin pointed out, good things are happening, understaffing, limited availability of courses, large disparities and poor continuity have all meant that we are not taking the opportunity to turn people round. We should applaud the idea of resettlement of prisoners close to their families and communities, but the effectiveness of that will be sharply reduced if prisoners cannot complete the courses they are undertaking because they are not available in the new prison.
The ways forward are not obscure. The plan of the noble Lord, Lord Fowler, has been clear and others have mentioned it. In short, we now need to turn a vicious cycle of prison letting down offenders and society and turn it into a virtuous cycle of improving prisons and of ensuring that we increase rehabilitation and save funds accordingly.
British Bill of Rights
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Lord Marks of Henley-on-Thames
To ask Her Majesty’s Government, in the light of the reported delays in bringing forward a British Bill of Rights, whether they will rule out introducing legislation that will purport to relieve the United Kingdom from its obligation to comply with final decisions of the European Court of Human Rights.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, we will set out our proposals in due course. While we want to remain part of the ECHR, we will not stay at any cost. If we cannot achieve a satisfactory settlement within the convention, we may have no option but to consider withdrawal. However, we are confident that we can make progress from within the ECHR.
Lord Marks of Henley-on-Thames (LD)
My Lords, the convention obligation to comply with final decisions of the Strasbourg court protects us all against breaches by Governments, in other Council of Europe countries and our own. In the light of the Russian Constitutional Court’s decision that Russian domestic laws should trump Strasbourg decisions, do the Government not accept that if we took a similar line—let alone threatened to leave—it would encourage other Governments to do the same? Will the Government commit on this Human Rights Day that they still accept that the binding obligation to comply with final decisions of the Strasbourg court is the bedrock on which the convention is built?
Lord Faulks
My Lords, the legislation passed by the Russian Duma does not actually mean that Russia is leaving the ECHR. It was a response to a decision of the ECHR about the unfettered right to tap phone calls and Article 8. This Government remain absolutely committed to the protection of human rights, both here and abroad, on this international Human Rights Day. We are party to no fewer than, I think, seven explicit treaties protecting human rights, as well as many others which bear on them. We will remain within the convention and the obligations under Article 46. Any future plans will involve the protection of all those rights contained within the convention.